NASHVILLE, Tenn. (WTVF) — Attorneys opposing the petition to end racing at the Nashville Fairgrounds Speedway told the court on Tuesday that thousands more names should have been removed before the petition was certified.
Michael Cottone, an attorney with Holland & Knight who represents the group Decline to Sign, told Chancellor Anne C. Martin that his side sent the Restore Our Fairgrounds coalition more than 2,000 names of people who wanted their names removed from the petition, some of whom thought it was only about adding more affordable housing and green space.
"They have the withdrawals. All they have to do is not count those signatures," Cottone said.
The lawsuit filed on behalf of Devra Bagwell and Decline to Sign argues that the Davidson County Election Commission should have removed her name and possibly the thousands of others like her from a petition "rife with fraud," before they certified the petition earlier this month.
Commissioners were also given a letter filled with affidavits from several people who said while their name appears on the petition, they never signed.
“Just as it would be important that someone’s signature is counted, it’s also important that if someone made a request to withdraw that it be honored too,” Cottone said.
Martin challenged Cottone at times asking whether Bagwell should have notified Restore Our Fairgrounds group directly, which could have removed her name faster. Cottone said the follow-up emails from Restore Our Fairground usually required an extra step for removal, which he says may account for why so many turned to the Decline to Sign portal for help.
Much of the controversy behind the petition-gathering process has to do with canvassers and whether they misled anyone into signing without first disclosing that doing so also meant Nashville could vote to end racing at the fairgrounds.
We first showed you hidden camera footage of questionable claims made by these canvassers, who in some cases said the racetrack was already in the process of being demolished, so signing meant possibly replacing the track with affordable housing or green space.
Members of the Restore Our Fairgrounds coalition later said that some of their canvassers may have misspoken, but also claimed some of the footage was fake without offering context as to what was fake or what was misspoken.
They turned in more than 74,000 signatures to the election commission back in September, but commissioners said they accepted 47,679 signatures as valid. Only a few thousand more than the 40,194 signatures the commission said were needed to put the petition on a ballot. 27,567 signatures were rejected.
Metro attorney Tyler Dorr said election officials did their job according to the charter, which mandates them to decide on certification exactly 30 days after someone turns in a petition to amend Nashville's charter.
That didn’t stop some commissioners from questioning whether it was appropriate to wait until this court hearing which could send the petition back for a recount.
Commissioners were told by legal council that they had to move forward with certifying anyway since the petition met the legal threshold and what happens after regarding the validity of the petition was up to the courts to decide.
Cottone's filing argued that the commission could have done more and pointed to the charter language, which says election officials shall verify "genuine" signatures while making sure the current address matches a voter's registered address, printed name and the date of signature.
“What is not encompassed in that word genuine is the election commission is not to determine as outlined in the charter, whether that person who’s signature they received has changed their mind at some point before or after filing of the petition,” Dorr said.
Will Helou, who represents the co-founders of Restore Our Fairgrounds, said he questioned the genuineness of the thousands of names provided by Decline to Sign.
Helou said they received notice from 139 people between June 25 and Sept. 16, requesting their names be removed from the petition.
Between Sept. 10 and Sept. 16, he says their inbox ballooned to more than 2,000 emails requesting removal.
Helou said they received these names from one of six “spam” email addresses, so he argued there’s no way to tell if these requests for removal came directly from those who signed.
“If the signature needs to be genuine, shouldn’t the withdrawal have to be genuine? At least the signatures we know they actually signed them,” Helou said.
Helou also reminded the court that the lawsuit involves one, maybe two people, who challenge their signature on the petition. Which he said could not change the outcome of the petition drive, even if those signatures are ultimately removed.
Cottone said he also questions the election commission’s decision to use 10% of the number of active voters registered in Davidson County as the threshold for signatures needed to certify the petition.
Election officials said the threshold was 40,194 signatures and Cottone says the number should be based on all registered voters which would push the threshold closer to 47,000 signatures.
Cottone said the change would create a razor-thin margin making the list of more than 2,000 names just as important as ever.
Martin said she would take everything under advisement and expects a decision soon.
Voters approved a 2011 local referendum that made racing a protected use of the fairgrounds, but races have been few and far between since then. It's been more than 40 years since the last NASCAR Cup Series race at the track, but renewed interest from the company and race fans in recent years has Restore Our Fairgrounds and other groups concerned about a potential return to NASCAR races.
Their new vision would replace racing as a protected use with affordable housing and green space. The coalition has not said who would pay for the racetrack changes.
At least for now, Davidson County voters can expect this petition on a ballot next summer.
This is a developing story.
