Judge denies Dems’ request for absentee ballot list

A Nashville judge ruled Monday the state does not have to immediately produce records on absentee voters to the Tennessee Democratic Party and the campaign of its U.S. Senate nominee before Election Day.

Tennessee election officials say they do not regularly keep track of which voters requested a by-mail ballot but have not yet returned it.

Access to that information was the focus of a new lawsuit filed Sunday in Davidson County Chancery Court by the Tennessee Democratic Party and its U.S. Senate nominee Marquita Bradshaw. They are pushing the state to release the information.

Chancellor Patricia Head Moskal denied the request from the Democratic Party and the Bradshaw campaign after an emergency hearing Monday morning.

The party and campaign sued Secretary of State Tre Hargett and Coordinator of Elections Mark Goins.

“There is insufficient proof in the record that the Bradshaw campaign complied with the requirements of the (Tennessee Public Records Act) and made a public records request to either named Defendant,” Moskal wrote.

The state Democratic Party accused the Secretary of State's office of refusing to release the names of those who have not yet returned an absentee ballot. The party and campaign want the information to help encourage those who have not returned their ballots to do so.

But the state says they never received any formal requests for this information.

Although the state does in theory have this data, most of it is kept at the county level and is not regularly compiled into reports, an attorney for the state said during court arguments. IT staff would have to create a new program to produce the information, which could take a few days.

“The Court finds that the public interest in a fair, open, and transparent election process is fundamental,” Moskal wrote. “It is essential that the public have confidence and trust in the integrity of our government officials charged with responsibility for administering and enforcing our State election laws.

In her ruling, the judge noted the information about those who have not yet returned an absentee ballot did become public under the state's open records law on Oct. 30, after the close of early voting.

But Moskal wrote there is “nothing in the record to demonstrate that the specific voter information requested — regarding absentee voters' requests for ballots who have not yet submitted their ballots — is compiled by county election commissions and transmitted to the Division of Elections.”

The Secretary of State's office has maintained in statements the lawsuit was a distraction from preparations for Election Day and characterized the plaintiffs' claims as false information that “erodes voter confidence.”

“We did not receive a public records request for the information. We did not deny a public records request. We did not tell counties to deny a public records request. Initially, the Plaintiffs said they sent the request to all 95 counties in court filings,” Secretary of State spokesperson Julia Bruck said in a statement. “In court today, they admitted that was not true and only requested information from a handful of counties.”

The Attorney General's office, which has represented the state in a flurry of lawsuits this year over absentee ballots and voter access in Tennessee, shared a similar assessment of the most recent suit.

“We agree with the decision. This lawsuit, filed the weekend before the election, made unsubstantiated and reckless claims about the state's election officials and misrepresented plaintiffs' efforts to obtain voting records,” Attorney General spokesperson Samantha Fisher said in a statement.

Ken Taylor, Bradshaw's campaign manager, disagreed that the judge's ruling vindicated the state. His team has already filed records requests for the information in key counties, he said.

“It's absolutely not frivolous. We have a responsibility as a campaign, and the Democratic Party has a responsibility as an organizing committee, to ensure that we're doing everything we can do to make sure that each and every voice in the state of Tennessee who has the opportunity who would like to participate, to make sure that their voice is heard,” Taylor said when reached by phone.

"One of the things we are ecstatic about is that the Chancellor did say we're entitled to that information. It's very clear that the basis of our argument, which is that they had to turn that information over to us, she agreed with that."

Arguments focus on information the state may already have

The party and campaign argued similar information is regularly issued to campaigns on early voting records, setting what they see as a standard for accessing the information. In years past, campaigns would be granted access to the early voting information after calling.

“What the plaintiffs want is a list of those people who have requested absentee ballots and who have not returned them,” Benjamin Gastel, an attorney representing the party and Bradshaw campaign, argued during Monday's court hearing. “What I heard is that we did not have to be here today.”

According to the lawsuit, the state's public records law requires elections officials to release a list of voters who have not returned absentee ballots at the end of early voting.

The Bradshaw campaign and state Democratic Party said in their lawsuit that they requested the information from all 95 counties on Friday. But in arguments on Monday, it became clear they'd only called five counties: Shelby, Davidson, Knox, Madison and Washington.

Only Knox was able to provide the details in a timely manner.

“It appears that the Bradshaw campaign's request was not limited to a request for inspection of public records, but sought the production of voter lists containing the requested information,” Moskal wrote. “Assuming that the public record requests for the subject voter information was properly made to county election officials in Davidson, Shelby, Knox, Madison and Washington Counties on October 30, 2020, none of those county election officials is named as a defendant in this lawsuit.”

The issue of how many counties were contacted or who may have denied requests was not fully explored in Monday's hearing.

A member of Bradshaw's campaign staff made the same request for information of the state Division of Elections, the lawsuit states.

“You can't deny a request you've never received,” attorney for the state Janet Kleinfelter said in arguments Monday morning. No written request was made, she said.

State would need to create new system to release info

The party and the Bradshaw campaign want the information in an effort to boost voter turnout on Election Day, arguing the information they requested is a routine tool campaigns use to increase participation.

Without the information, the campaign is “unable to learn which absentee voters need not be bothered about returning their ballots, and which voters may need contact from the campaign and further information,” the lawsuit states.

Voter registration and voter history is a public record in Tennessee.