In May, just days after the Supreme Court handed down its decision in Louisiana v. Callais, clearing the way for states to institute gerrymanders that dilute minority voting strength, Tennessee became the first state to capitalize. Tennessee’s new congressional map eliminated the state’s sole Democratic seat, a majority-Black district that covered Memphis.
Protesters showed up outside and inside the State Capitol in Nashville to rally against the gerrymander. Speaking to the Prospect, state Rep. Justin J. Pearson (D-Memphis) predicted that as a result of this attack on voting rights, “we’re going to likely see the largest increase in voter participation and mobilization of young people that we’ve seen since President Barack Obama … I really think this has excited people in defense of democracy, in defense of the future we want to create, and against a dangerous status quo that we’re currently experiencing and dealing with.”
Pearson was right: Democratic voter turnout in Tennessee’s August elections rose to the highest level in a decade. But this wasn’t without controversy. And in advance of a midterm election with concerns about voter intimidation, what happened in Tennessee could open a window into possibilities in November.
Organize Tennessee (Organize TN), a nonpartisan voting rights organization, dispatched over 100 polling observers across the state during last month’s primaries. As stated in the organization’s August Election Protection Report, which the Prospect exclusively obtained, observers documented 153 different incidents that included ballot distribution errors, voter misinformation and intimidation, and the presence of uniformed law enforcement and candidate presence at polling locations.
One major incident involving likely unlawful police presence occurred at polling locations in Henry County, along the state’s northwestern border. Anonymous poll observers with Organize TN documented County Sheriff Josh Frey entering and consulting with deputies who were stationed inside polling places. Frey was on the ballot, running unopposed for re-election. He was in uniform.
Based on these reports, two statutory violations may have occurred. Under Tennessee law (Tenn. Code Ann. § 2-7-103(c)), law enforcement cannot come nearer than ten feet of the entrance to a polling place, or go inside “except at the request of the officer of elections or the county election commission or to make an arrest or to vote.”
Additionally, another law prohibits candidates from entering polling locations except to vote. A 100-foot campaign-free zone exists around every polling location’s entrance.
Observers documented 153 different incidents that included ballot distribution errors, voter misinformation and intimidation, and the presence of uniformed law enforcement and candidate presence at polling locations.
According to a source close to the matter, DeLaina Green, the election administrator for Henry County, was made aware of a threatening Facebook post on the day of the primary that was credible enough to call for law enforcement to be stationed inside polling places. But this decision could not have been made by Green alone: Under the state’s Open Meetings Act (Tenn. Code Ann. § 8-44-101), any commission action requires deliberation and a vote with proper public notice.
Green declined to comment, but the source informed the Prospect that Green claimed to have followed proper procedures to invite deputies into polling sites. Currently, it’s unclear who actually greenlit that action—the election commission or individual officers of elections.
An open records request was filed on August 27 to obtain a copy of the Facebook post and minutes from any meeting(s) held by the Henry County Election Commission in which law enforcement presence was approved at polling locations. It also sought copies of any correspondence between Green, law enforcement and election officials, such as Mark Goins, Tennessee’s elections coordinator, and precinct-level officers.
Responding to the request, the Henry County Election Commission shared minutes from a meeting on September 11, 2017, nine years before the primary election day. The document only mentioned that precinct security during elections was discussed, but did not outline any specific procedures.
The Henry County Election Commission did not provide a copy of the alleged threat, any communications between Green and precinct officers, or proof that a vote took place to approve the invitation of law enforcement into polling places. At this time, no evidence has been provided to the Prospect that verifies that the alleged threat existed, and that the proper procedures were followed to permit deputies to enter sites, let alone have Sheriff Frey enter as well and speak with them.
When the Prospect reached out to Frey for comment, he said he had not been made aware of any threatening social media posts. When asked why, then, law enforcement was inside polling locations, Frey pointed to “issues a few times in the past at our polling precincts where we had to respond.”
“A lot of these polling precincts are in outlying areas of the county, so it takes an extended response to get there,” Frey said. “Since I’ve been in office for the past six years, we had more than one issue at polling precincts with disgruntled voters. So we are asked to be at those precincts.” It’s currently unclear who asked for the presence of deputies inside polling places.
Frey’s response to being asked if he was aware of Tenn. Code Ann. § 2-7-103’s restrictions on the positioning of law enforcement was that he was “pretty sure” that Green had “covered all of this with the state election commission, attorneys and everyone else.”
He also said that he was not aware until the day of the primary that he, as a candidate on the ballot, could not enter polling locations for any other reason besides voting.
The Henry County Election Commission is now reportedly in talks with state election officials to instead deploy plainclothes police officers to polling locations during the upcoming elections.
On September 3, an election lawyer in Tennessee sent a new request to the election commission to investigate the presence of law enforcement at polling locations during the primary. “Tennessee law is unambiguous: Law enforcement does not belong inside a polling place absent a specific, lawful request from the officer of elections or a properly convened vote of the county election commission,” said the election lawyer. “Henry County voters deserve a straight answer about who authorized police presence at their precincts on Election Day, and why. Vague references to an unspecified ‘threat’ does not and should not cut it.”
The attorney went on to say that “the South has a long and painful history of law enforcement being used to intimidate voters at the polls, particularly in Black communities, and any deviation from that statute demands transparency, not silence.”
IN WILLIAMSON COUNTY, SOUTH OF NASHVILLE, Organize TN’s poll observers reported voter disruption from campaign volunteers outside of Nolensville Recreation Center during the August 6 election.
Between 2:00 and 2:30 p.m., a volunteer who was identified as being associated with Cyndi Miller’s campaign was seen telling voters that voting machines were “on pause,” and that they should go to another polling site. Miller was running for re-election for GOP state executive committeewoman in District 27, which covers most of Williamson County. A voter known to Organize TN asked the precinct officer if that was true, and was informed that the machines were functional.
A poll officer was notified on several occasions about this disruption, eventually asking the volunteer to stop, and later leave.
A representative from the Williamson County Election Commission confirmed that at no point during the day did voting machines at Nolensville Recreation Center stop working.
When Miller was reached out to for comment, a campaign volunteer responded and denied that any of the volunteers falsely informed voters that the machines were not working. She instead claimed that volunteers would tell voters who were concerned about wait times that they could drive to another nearby polling site.
In Williamson County, citizens are permitted to vote at any polling station; they do not have a specific precinct assigned to them based on their address. But being told to head to another polling station can add time to the process of voting, which voters may not have.
Organize TN is particularly concerned about this incident because of the identity of at least one of the voters who reported being misinformed, says Adam Altendorf, Organize TN’s organizing director. “This was a hijab-wearing Muslim woman. She felt very targeted for her faith and what she was wearing.”
Under Tennessee law, voter intimidation is listed as a Class A misdemeanor, and the law forbids any person “directly or indirectly” from acting in any manner that would hinder someone from voting. When put into the context of Tennessee’s historical pattern of intimidating people of color from politically participating, it reflects a greater concern ahead of the midterms.
TENNESSEE IS NO STRANGER TO TROUBLED ELECTIONS suffused by systemic racism. The Ku Klux Klan (KKK) was founded in the state, and along with other vigilante groups, would use violence to intimidate Black citizens to deter their political participation.
Small-town politics in Tennessee are already complicated, says Altendorf. “Everyone knows each other, and when these sort of things happen, there’s just an implicit pressure,” he says. “When you go in to vote in August, you have to declare which party’s primary you want to vote in. Having the sheriff there potentially viewing that is really concerning for people and their reputation in a small town.”
Voting in Tennessee is complicated. There are several laws that impact one’s ability to vote easily, including one that marks your voter status as “inactive” if you fail to cast a ballot for four years. If no action is taken (voting, updating registration, etc.) for an extra two federal election cycles, or up to four years, you can be purged from the voter rolls.
In May, Republican Gov. Bill Lee signed a law that will authorize county election officials to verify voters’ immigration status via the Systematic Alien Verification for Entitlements (SAVE) database. If the Department of Homeland Security (DHS) creates an access portal for election officials, voter registrations will be compared to the information in the SAVE database.
Current regulations require that voters provide proof of citizenship when they register to vote, which is then cross-checked using state and federal data sources. Earlier this year, ProPublica and The Texas Tribune reported that election officials in Texas who used the database mistakenly flagged voters as noncitizens at rates as high as 14 percent in some counties.
National concerns about the presence of ICE at polling locations also exist: Recently, DHS Secretary Markwayne Mullin confirmed that agents would be “there to enforce specific threats.” However, he also mentioned that ICE could also appear if there is a report of undocumented immigrants at a location.
Overall, the state of voting rights in Tennessee is becoming increasingly fraught, as evidenced by Organize TN’s election protection report.
“In the big picture, it makes it really hard because voters have a right to have their ballot counted, like cast their ballot fairly and have it counted,” says Altendorf. “It means that voters are able to direct their elected officials towards policy choices that are going to impact their lives, and when there’s barriers to that, we have to question whether voters are really being able to wield their power in a free way.”
The Republican supermajority in Tennessee seems poised to gerrymander state congressional maps next, weakening voter power in Black and brown communities. But the sheer number of voters who have turned out since Callais was decided could disrupt that process.
“Republicans in the state know that they have control over the different legislative districts. What they don’t have control over is who votes,” says Kristal Knight, founder and board chair of Organize TN. “People are turning out in numbers to show the state legislature that you can’t come in and just mess with our seats. Just because you think that you’re going to dilute our voting power, we are still going to show up and vote.”
