[TRANSCRIPT] Judge says ‘shame on’ state for not following absentee ballot order

Secretary of State Tre Hargett speaks with Rep. Curtis Johnson (R-Clarksville) on Jan. 29, 2018 in Nashville. (Photo credit: Erik Schelzig, Tennessee Journal)

Davidson County Chancellor Ellen Hobbs Lyle on Thursday found the state had failed to follow her order to make absentee ballots to anyone concerned about the coronavirus. But the judge stopped short of finding the state in contempt of the court.

“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said. “So, I’m calling the state out on that, for not adhering to the standards of a legal process, and not adhering to the order.”

Read the judge’s whole ruling from the bench here:

Before the court is the motion of the plaintiff under Tennessee Civil Procedure Rule 65 for me to enforce, compel, require the state to comply and adhere to the injunction order that was entered by the court of June 4, 2020. And in addition, the plaintiffs have asked the court to order sanctions asserting that the state has acted willfully in not complying with the court’s order.

The court’s ruling is that it grants the part of the motion concerning enforcement. The court denies the motion for sanctions. And the court’s reasoning is as follows: With respect to enforcement of the temporary injunction, the court finds the state did violate the court’s order, and did not adhere to the order, and did take steps which  were in direct contradiction of the court’s order.

No private litigant or business would take a court’s order where they had been told to do something and say, well, I think I’ve got a better idea about how this should be done and just do it their way in derogation of what the court has said. And that’s what the state did in this case. They took my order — I did not segregate COVID voters from other voters who had that excuse No. 3, and they changed and modified my order and added a step and a nuance and maybe even a chilling effect, it’s not clear, that the court had contemplated and determined was not correct.

I just have to say that it’s a matter of standards of legal process that the way that’s done and has always been done, is that  you file a motion to modify, you file a motion to alter or amend, you ask for a conference to discuss the remedy. And that’s done every day in this court. And if you think you know a better way to do something, then you come in with a motion and you the court and give the other side an opportunity to have input. And that’s not just the practice, that’s the rule. And it’s followed daily by all attorneys and parties and litigants in this court.

I just really have to say to that point, you know, shame on you for not following that procedure and just taking matters into your own hands. So, I’m calling the state out on that, for not adhering to the standards of a legal process, and not adhering to the order.

What I’m now going to have to do to straighten it out I’m going to have to take down that form they’ve put together and issue a new form along the lines we discussed today, to change Boxes 3 and 4. I’ll get that order out this afternoon and the state will be ordered to change the forms and post them and require election officials to post these new forms by noon tomorrow, and then to change their instructions to comply with this new form, and that will be done by 5 o’clock tomorrow.

In light of the declarations that had been filed with the court about comments and instructions that are being made to voters about voting absentee, the court will look at the compliance order for these state officials to give direction or instructions to the county officials so they will know what to do and what to say. That order will take me longer. And I hope to have that out tomorrow.

Finally, with respect to the awarding of attorneys’ fees or coming up with some dollar amount by the state, we’re in a time of some budget issues and a time of a pandemic when people have got  a lot of concerns. So the court is not going to issue the sanctions. However, there always is the specter of criminal contempt if after today’s orders. If there’s still noncompliance and there’s disobedience, then that’s a route that the court can go.

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