Memphis A. Philip Randolph Inst. v. Tre Hargett ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0139p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MEMPHIS A. PHILIP RANDOLPH INSTITUTE; THE EQUITY ┐
ALLIANCE; FREE HEARTS; MEMPHIS AND WEST │
TENNESSEE AFL-CIO CENTRAL LABOR COUNCIL; THE │
TENNESSEE STATE CONFERENCE OF THE NAACP; │
SEKOU FRANKLIN, │ No. 20-6141
Plaintiffs-Appellees, >
│
│
v. │
│
│
TRE HARGETT, in his official capacity as Secretary of │
State of the State of Tennessee; MARK GOINS, in his │
official capacity as Coordinator of Elections for the │
State of Tennessee; AMY P. WEIRICH, in her official │
capacity as District Attorney General for Shelby │
County, Tennessee, │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:20-cv-00374—Eli J. Richardson, District Judge.
Argued: December 15, 2020
Decided and Filed: June 22, 2021
Before: MOORE, GIBBONS, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellants. Danielle Lang, CAMPAIGN LEGAL CENTER,
Washington, D.C., for Appellees. ON BRIEF: Matthew D. Cloutier, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Danielle Lang,
Jonathan Diaz, Molly Danahy, Ravi Doshi, Caleb Jackson, CAMPAIGN LEGAL CENTER,
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 2
Washington, D.C., Ezra D. Rosenberg, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
UNDER LAW, Washington, D.C., for Appellees.
GIBBONS, J., delivered the opinion of the court in which READLER, J., joined.
READLER, J. (pp. 14–18), delivered a separate concurring opinion. MOORE, J. (pp. 19–35),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. This is the third time these parties have
appeared before this panel in a Tennessee election law dispute. This time, defendants appeal the
district court’s order granting plaintiffs a preliminary injunction enjoining the enforcement of a
law preventing first-time voters from voting by mail. We previously denied defendants’ motion
to stay the injunction pending this appeal. However, after the benefit of full briefing and oral
argument, we now vacate the preliminary injunction.
I.
In the months prior to the November 2020 elections, there was increased attention placed
on absentee voting due to the COVID-19 pandemic. Tennessee allows several categories of
voters to vote absentee, including those who will be outside of their registered county during the
election period, persons over 60, and those who are “hospitalized, ill or physically disabled, and
because of such condition, . . . unable to appear at the [their] polling place on election day.”
Tenn. Code Ann. § 2-6-201. Tennessee has acknowledged that the latter category includes
“persons with special vulnerability to COVID-19 or who are caretakers of persons with special
vulnerability to COVID-19.” Fisher v. Hargett, 604 S.W.3d 381, 393 (Tenn. 2020).
First-time voters who register by mail or online, however, cannot vote absentee even if
they fall into one of the approved categories, with limited exceptions. Tenn. Code Ann. § 2-2-
115(b)(7). These first-time voters must vote in person so that they can present a form of
identification. Id. Tennessee claims this requirement is necessary to prevent fraudulent voting.
Because individuals do not present a form of photo identification when registering to vote by
mail, Tennessee argues that allowing first-time voters to vote by mail will lead to “ghost voting”
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where the signatures on the voter’s registration and absentee ballot match but the state cannot
verify the voter’s identity.
On May 1, 2020, plaintiffs—two individuals registered to vote in Tennessee and five
Tennessee organizations—brought this lawsuit challenging several Tennessee voting laws.
Defendants are three Tennessee government officials involved in election enforcement. On June
12, 2020, Plaintiffs amended their complaint and added a claim contesting Tennessee’s first-time
voter restriction under Tenn. Code Ann. § 2-2-115(b)(7). That same day, they filed a motion for
preliminary injunction seeking to enjoin the enforcement of § 2-2-115(b)(7).
On September 9, 2020, the district court granted plaintiffs’ motion for a preliminary
injunction as to the first-time voter restriction and issued an order enjoining the enforcement of
§ 2-2-115(b)(7). Defendants filed a motion to stay the injunction, and a motion for
reconsideration. The district court denied both motions.
Defendants then filed a notice of appeal, and a motion to stay the preliminary injunction
in this court. We previously denied the motion to stay, and now consider the merits of the
preliminary injunction.
II.
When deciding whether to grant a preliminary injunction, courts must balance four
factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the
movant would suffer irreparable injury absent the injunction; (3) whether the injunction would
cause substantial harm to others; and (4) whether the public interest would be served by the
issuance of an injunction.” Am. Civil Liberties Union Fund of Mich. v. Livingston County,
796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th
Cir. 2012)). “These factors are not prerequisites, but are factors that are to be balanced against
each other.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.
2002). “[T]he party seeking a preliminary injunction bears the burden of justifying such relief.”
Livingston County, 796 F.3d at 642 (alteration in original) (quoting McNeilly v. Land, 684 F.3d
611, 615 (6th Cir. 2012)); see also Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 4
Corp., 511 F.3d 535, 546 n.2 (6th Cir. 2007) (“[I]n seeking a preliminary injunction, a federal
plaintiff has the burden of establishing the likelihood of success on the merits.”).
Whether the movant has a strong likelihood of success on the merits is a question of law,
which this court reviews de novo. Ammex, Inc. v. Wenk, 936 F.3d 355, 359−60 (6th Cir. 2019)
(quoting City of Pontiac Retired Emps. Ass’n v. Shimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en
banc) (per curiam)). We review the “district court’s ultimate determination as to whether the
four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive
relief ” for abuse of discretion. Shimmel, 751 F.3d at 430. Under the abuse-of-discretion
standard, we will reverse the district court “if it improperly applied the governing law, used an
erroneous legal standard, or relied upon clearly erroneous findings of fact.” Id. We review the
district court’s factual findings for clear error. Ammex, Inc., 936 F.3d at 360.
III.
“When a party seeks a preliminary injunction on the basis of a potential constitutional
violation, ‘the likelihood of success on the merits often will be the determinative factor.’”
Shimmel, 751 F.3d at 430 (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)).
In addition to demonstrating a likelihood of success on the substantive claims, a plaintiff must
also show a likelihood of success of establishing jurisdiction. Waskul v. Washtenaw Cnty. Cmty.
Mental Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018). If a plaintiff cannot show a likelihood of
jurisdiction, then the court will deny the preliminary injunction. Id. Here, defendants raise two
jurisdictional challenges: standing and mootness.
A.
Article III of the Constitution limits the jurisdiction of federal courts to cases and
controversies. U.S. Const. art. III, § 2; see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
559–60 (1992). Standing is a core component of this “case-or-controversy requirement of
Article III.” Lujan, 504 U.S. at 560. To establish standing to sue, a plaintiff must show (1) an
injury in fact that is (2) fairly traceable to the defendant’s conduct and (3) likely to be redressed
by a favorable judicial decision. Id. at 560–61. A plaintiff asking for declaratory or injunctive
relief must also “show actual present harm or a significant possibility of future harm.” Grendell
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v. Ohio Sup. Ct., 252 F.3d 828, 832 (6th Cir. 2001) (quoting Nat’l Rifle Ass’n of Am. v. Magaw,
132 F.3d 272, 279 (6th Cir. 1997)). An organization may have standing either in its own right,
Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 624 (Cir. 2016), or it may have
associational standing on behalf of its members “when its members would otherwise have
standing to sue in their own right, the interests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 181 (2000). If one party has standing, then identical claims brought by other
parties to the same lawsuit are also justiciable. See Ne. Ohio Coal. for the Homeless, 837 F.3d at
623.
Here, the district court found that one plaintiff, The Tennessee State Conference of the
NAACP (“Tennessee NAACP”), had associational standing through a single member, Corey
DeWayne Sweet, an individual resident of Tennessee. Memphis A. Phillip Randolph Inst. v.
Hargett, 485 F. Supp.3d 959, 978−79 (M.D. Tenn. 2020). Sweet submitted two declarations
before the district court. His first declaration was signed on July 6, 2020 and was attached to
plaintiffs’ reply to their motion for a preliminary injunction. Sweet stated that he was twenty
years old, had never voted before, and registered to vote online in Shelby County, Tennessee in
late May or early June of 2020. Sweet also said he “occasionally attend[s] events of the
Tennessee State Conference of the NAACP” and was a student at Xavier University in
Louisiana. DE 54-4, Sweet Dec. 1, Page ID 2300. At the time, Sweet was taking remote classes
because of the COVID-19 pandemic and did not know whether he would return to in-person
learning for the fall semester starting in August 2020. He wished to vote by mail in the
upcoming Tennessee elections because he was concerned about the risk of exposure to COVID-
19 and because he could not afford to return to Tennessee to vote if he resumed in-person classes
in Louisiana.
The district court determined that plaintiffs had put forth a sufficient showing that Sweet
was a Tennessee NAACP member, but it noted that the evidence was “far from strong.”
Memphis A. Phillip Randolph, 485 F. Supp. 3d at 1006. The district court relied on Sweet’s first
declaration, which stated that Sweet occasionally attends NAACP meetings, and on the fact that
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defendants had not challenged Sweet’s membership in their motion to dismiss for lack of
standing (filed after plaintiffs filed their motion for the preliminary injunction). Id. Thus, the
district court accepted plaintiffs’ representation that Sweet was an NAACP member, but warned
that plaintiffs “should advise the Court immediately if, contrary to the Court’s current
understanding, Sweet is not actually a member of NAACP.” Id. at 978 n.10 (emphasis omitted).
The next day, plaintiffs filed Sweet’s second declaration, in which Sweet stated that “I am a
member of the Memphis Branch of the Tennessee State Conference of the NAACP.” DE 86-2,
Sweet Dec. 2, Page ID 2670.
On appeal, defendants’ only challenge to plaintiffs’ Article III standing is whether
plaintiffs demonstrated that Sweet is a member of the Tennessee NAACP. Defendants claim that
neither of Sweet’s declarations demonstrate that he was a Tennessee NAACP member at the time
the amended complaint was filed. According to defendants, Sweet’s use of the present tense in
his second declaration only proves that he was a member when the declaration was filed, not that
he was a member when the amended complaint was filed.
While the evidence that Sweet is a Tennessee NAACP member is not definitive, the
district court’s factual finding that Sweet was a member is not clearly erroneous. A factual
finding is clearly erroneous when this court is “left with the definite and firm conviction that a
mistake has been committed” after reviewing the full record. United States v. Collins, 799 F.3d
554, 594 (6th Cir. 2015) (quoting United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)); see
also United States v. Lanham, 617 F.3d 873, 888 (6th Cir. 2010) (“To be clearly erroneous, . . . a
decision must strike [this Court] as more than just maybe or probably wrong.” (alterations in
original) (quoting United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990)). There are several
facts in the record that suggest Sweet was a member of the Tennessee NAACP when the
amended complaint was filed. First, there is his initial declaration where he stated that he
“occasionally attend[s] events” of the Tennessee NAACP. DE 54-4, Sweet Dec., Page ID 2300.
Second, after being admonished by the district court to confirm Sweet’s membership, Sweet and
his grandmother Gloria Jean Sweet-Love, the president of the Tennessee NAACP, both
submitted declarations stating that he was a member. Defendants’ argument that Sweet’s use of
the present tense in his second declaration negates its probative value as to the time of filing is
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unpersuasive. While it would have been preferable for Sweet to say explicitly when he became a
Tennessee NAACP member, the evidence that: (1) he said he “is a member” in September 2020
and (2) had previously attended Tennessee NAACP events make it plausible that he was also a
member in June 2020 when the amended complaint was filed. Although the record is sparse, the
district court’s finding that Sweet was a member was not clearly erroneous.
If Sweet was a member, then the Tennessee NAACP had associational standing to
challenge the first-time voter restriction at the time the amended complaint was filed. If not for
the first-time mail-in voter restriction, Sweet would likely have been eligible to vote by mail
under a Tennessee state-court preliminary injunction in place at the time, which allowed “any
qualified voter who determines it is impossible or unreasonable to vote in-person at a polling
place due to the COVID-19 situation” to vote absentee. Fisher, 604 S.W.3d at 392 (quoting
Temporary Inj. Order, Fisher v. Hargett, No. 20-453-III (Tenn. Ch. Ct., 20th Jud. Dist. Jun. 4,
2020)). Thus, Sweet suffered an injury because the first-time voter restriction impeded his right
to vote. Sweet’s injury was fairly traceable to the first-time voter restriction and could have been
readily redressed by an injunction barring its enforcement. Additionally, the interests at stake,
including protecting voting rights, are germane to the NAACP’s purpose, and neither the claim
asserted nor the relief requested would require individual Tennessee NAACP members to
participate in the lawsuit. See Friends of the Earth, 528 U.S. at 181. Accordingly, the district
court properly concluded that the Tennessee NAACP, and by extension all plaintiffs, had shown
a substantial likelihood of establishing associational standing through Sweet to challenge the
first-time voter restriction.
Next, defendants claim that plaintiffs lack prudential standing to assert the rights of third
parties. Generally, plaintiffs cannot establish standing based on the legal rights or interest of
others. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). There are some exceptions to this rule,
“such as where a ‘close relationship’ exists between the party asserting the right and the party
possessing it or where a ‘hindrance’ exists to the possessor’s ability to protect the right.” Fair
Elections Ohio v. Husted, 770 F.3d 456, 461 (6th Cir. 2014) (quoting Kowalski, 543 U.S. at 129–
30) (finding that an organization engaged in voter outreach did not have prudential standing to
assert the rights of unidentified third-party voters). Here, plaintiffs are asserting the legal rights
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of their members, such as Corey Sweet, not of unidentified third parties. There is no prudential
standing bar when member-based organizations advocate for the rights of their members. See
Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (per curiam).
Defendants’ effort to analogize this case to Fair Elections Ohio fails, as does their claim that
plaintiffs lack prudential standing.
Finally, while it is widely accepted that a plaintiff must establish standing at the time the
lawsuit commences, it is perhaps less clear whether the standing requirement persists. Recently,
the Supreme Court has implied that in certain cases a plaintiff may have to maintain standing
throughout the lawsuit. See Trump v. New York, 141 S. Ct. 530, 536–37 (2020) (per curiam)
(dismissing a case for lack of both standing and ripeness after the plaintiffs’ basis for standing
disappeared during the pendency of the action); Carney v. Adams, 141 S. Ct. 493, 499 (2020)
(noting that the plaintiff “bears the burden of establishing standing as of the time he brought this
lawsuit and maintaining it thereafter”). The Supreme Court, however, has not explicitly
overruled past precedent that confined the standing inquiry to the moment when the lawsuit was
filed. See, e.g., Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (“[T]he standing
inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the
outcome when the suit was filed.”). We need not resolve this tension here, however, because
mootness poses another Article III jurisdictional bar to plaintiffs’ claim. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 66–67 (1997) (“We may resolve the question whether
there remains a live case or controversy . . . without first determining whether [plaintiffs have]
standing to appeal because the former question, like the latter, goes to the Article III jurisdiction
of this Court and the courts below, not the merits of the case.”); In re: 2016 Primary Election,
836 F.3d 584, (6th Cir. 2016) (recognizing that this court has “discretion to address jurisdictional
issues ‘in any sequence we wish’” (quoting Warshak v. United States, 532 F.3d 521, 525 (6th
Cir. 2008) (en banc))).
B.
Under Article III, federal courts may only adjudicate “actual, ongoing controversies.”
Mwasaru v. Napolitano, 619 F.3d 545, 549 (6th Cir. 2010) (quoting Honig v. Doe, 484 U.S. 305,
317 (1988)). An actual, ongoing controversy exists when there is a “genuine dispute[] between
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adverse parties, where the relief requested would have a real impact on the legal interests of
those parties.” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 584 (6th Cir. 2006); see
also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). “If ‘the issues
presented are no longer live or the parties lack a legally cognizable interest in the outcome,’ then
the case is moot and the court has no jurisdiction.” Libertarian Party of Ohio, 462 F.3d at 584(quoting Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)). “The mootness inquiry must
be made at every stage of a case; thus, if a case becomes moot during an appeal, the judgment
below must be vacated and the case remanded with instructions to dismiss.” Id. (quoting
McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)).
“The heavy burden of demonstrating mootness rests on the party claiming mootness.” Cleveland
Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 531 (6th Cir. 2001).
Defendants argue that Sweet’s individual claim, and by extension the claim of all the
plaintiffs, is now moot. When plaintiffs filed their amended complaint on June 12, 2020, Sweet
was eligible to vote absentee based on a June 4, 2020 state-court injunction of the first-time voter
law, which construed Tenn. Code Ann. § 2-6-201(5) to permit “any qualified voter who
determines it is impossible or unreasonable to vote in person at a polling place due to the
COVID-19 situation” to vote absentee. Fisher, 604 S.W.3d at 392 (quoting Temporary Inj.
Order, Fisher v. Hargett, No. 20-453-III (Tenn. Ch. Ct., 20th Jud. Dist. Jun. 4, 2020)). On
August 5, 2020, the Tennessee Supreme Court vacated the June 4, 2020 injunction and imposed
new, stricter guidelines. Fisher, 604 S.W.3d at 405. Under the new guidelines, § 2-6-201(5)
only includes individuals who have a “special vulnerability to COVID-19 [or] are caretakers for
persons with special vulnerability to COVID-19.” Id. at 393.
After Fisher, Sweet no longer qualifies to cast an absentee ballot under Tenn. Code Ann.
§ 2-6-201. Sweet does not claim that he has a special vulnerability to COVID-19 or is a
caretaker to someone who has a special vulnerability, only that he is concerned about the general
risks of COVID-19. His concern that he may contract COVID-19, without more, is insufficient
to meet the requirements the Tennessee Supreme Court articulated on August 5, 2020.
Furthermore, Sweet does not appear to readily fit into any of the other categories of eligible
absentee voters, particularly since he transferred to the University of Memphis in July 2020, so
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there is no longer a possibility that he will be returning to Louisiana for school.
Based on this updated information, it appears that Sweet no longer has an actual, ongoing
stake in this litigation. Even if this court affirmed the district court’s preliminary injunction and
continued to enjoin the first-time voter restriction, Sweet would not be eligible to vote absentee
because he does not fall into any of the approved categories under Tenn. Code Ann. § 2-6-201 as
interpreted by the Tennessee Supreme Court in Fisher. In his second declaration, Sweet stated
that he might be eligible in the future if he becomes sick, is out of the county during the voting
period, or is serving as a juror. Such speculation, however, does not make Sweet any more likely
to be eligible to vote absentee than a general Tennessee voter and does not amount to an actual
stake in this litigation. Simply put, the relief plaintiffs are requesting no longer has a real impact
on Sweet’s legal interests. If the outcome of this case will not affect his legal interests, Sweet’s
claim is moot. See Libertarian Party of Ohio, 462 F.3d at 584. And because the organizational
plaintiffs relied entirely on Sweet to establish their legal interest in this case, they have not
shown a substantial likelihood that they continue to have a legally cognizable interest. See
Chamber of Commerce of the U.S. v. EPA, 642 F.3d 192, 207 (D.C. Cir. 2011) (“If [the
association] has standing, it is only because at least one of [two identified members] has
standing, and if the claims of both are moot, then [the association’s] claims are moot as well.”
(citations omitted)); see also Pro. Helicopter Pilots Ass’n Local 102 v. U.S. Dep’t of the Army,
No. 1:13-CV-164-WKW, 2013 WL 6837555, at *6 (M.D. Ala. Dec. 26, 2013) (“Because the
[organization’s] associational standing hinges on the standing of its individual members, that
later mooting of its members’ claims also moots [the organization’s] claims.”).
Plaintiffs attempt to rely on this court’s past reasoning in Cleveland Branch, N.A.A.C.P.
v. City of Parma to argue that their general claim remains justiciable even if Sweet’s claim is not.
See Waskul, 900 F.3d at 257 (stating that Cleveland Branch “appear[s] to hold that even if a
named member’s claims had become moot, the association retained standing because the named
member had standing at the outset of the litigation.”). Plaintiffs and Waskul, however, conflate
Cleveland Branch’s analysis of the standing redressability requirement with that case’s mootness
analysis. Standing and mootness, albeit related, are distinct doctrines with separate tests to
evaluate their existence at different times of the litigation. See Ohio Citizen Action v. City of
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Englewood, 671 F.3d 564, 580 (6th Cir. 2012) (“Standing is determined at the time the complaint
is filed.” (quoting Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004))); McPherson, 119 F.3d at
458 (“The mootness inquiry must be made at every stage of a case; thus, if a case becomes moot
during an appeal, the judgment below must be vacated and the case remanded with instructions
to dismiss.”). Thus, plaintiffs cannot rely on Cleveland Branch’s standing analysis to save their
case if Sweet’s claim is now moot, given that Sweet is the only affected member plaintiffs have
identified.1
The plaintiffs’ claim also does not fit into the “capable of repetition, yet evading review”
exception to the mootness doctrine. This exception “applies when (1) the challenged action is
too short in duration to be fully litigated prior to its cessation or expiration and (2) there is a
reasonable expectation or a demonstrated probability that the controversy will recur.”
Libertarian Party of Ohio, 462 F.3d at 584. “The party asserting that this exception applies
bears the burden of establishing both prongs.” Lawrence v. Blackwell, 430 F.3d 368, 371 (6th
Cir. 2005). The second prong is “somewhat relaxed in election cases.” Id. at 372. To be
capable of repetition, “the chain of potential events does not have to be air-tight or even
probable.” Barry v. Lyon, 834 F.3d 706, 716 (6th Cir. 2016). The challenged action, however, is
not capable of repetition if it is based on a unique factual situation. See Libertarian Party of
Ohio, 462 F.3d at 584.
Our holding in Libertarian Party of Ohio helps define what constitutes a “unique factual
situation.” In that case, the Libertarian Party of Ohio (“LPO”) sued the Ohio Secretary of State
after its petition to form a political party for the 2004 primary election was rejected for including
an outdated version of Ohio’s election falsification notice. Id. at 582–83. LPO began
distributing its petition in April 2001, but the Ohio legislature changed the election falsification
1In support of their opposition to defendants’ motion for reconsideration before the district court, plaintiffs
also submitted a declaration from Dawn Harrington, the executive director of plaintiff organization Free Hearts. DE
93, Harrington Dec., Page ID 2714–15. Harrington stated that Free Hearts member Myeisha Brown was eligible to
vote in Tennessee and “intend[ed] to submit a voter registration form by mail before October 5 and request for an
absentee ballot before October 27.” DE 93, Harrington Dec., Page ID 2714–15. At the time, however, Brown was
in the custody of Davidson County, Tennessee, and was being held without bail until her court date set for
November 16, 2020. Id. at Page 2715. Thus, Brown would be incarcerated for the November 2020 election period.
Plaintiffs did not mention Brown in their appellee brief before this court, perhaps because Harrington’s declaration
does not explain how Brown would qualify to vote absentee under Tenn. Code Ann. § 2-6-201. Accordingly,
plaintiffs cannot rely on Brown to demonstrate an actual legal interest.
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notice in August 2001. Id. at 584. LPO did not update the notice after August 2001, so when it
submitted its petition in November 2003 it was rejected for including the outdated version of the
notice. Id. LPO challenged both the Ohio requirement that parties must strictly comply with
election laws and the Ohio primary election petition process in general. Id. at 584–85. This
court found that the second challenge to the petition process was capable of repetition, yet
evading review, because even though the 2004 elections had ended, LPO could seek to
participate in future Ohio primary elections. Id. In contrast, we found that the first challenge to
Ohio’s strict compliance requirement was moot. Id. 584. This court explained that “[o]utside of
this unique factual situation” where a requirement changed midway through the petition process,
“there [was] not a reasonable expectation or demonstrated probability that the LPO or any other
political group will be injured by Ohio’s requirement of strict compliance with election laws.”
Id. at 584; see also Tigrett v. Cooper, 595 F. App’x 554, 557–58 (6th Cir. 2014) (finding the
challenged action was not capable of repetition because it was based on a consolidated election
that historically only occurred once every 40 to 50 years).
Similarly, Sweet’s alleged injury and the plaintiffs’ motion for a preliminary injunction
are inextricably tied to the COVID-19 pandemic, a once-in-a-century crisis. In their
memorandum in support of their motion for a preliminary injunction before the district court,
plaintiffs recognized that “these are not ordinary times.” DE 43, Memorandum, Page ID 1681.
While plaintiffs claimed that the first-time restriction burdened all first-time voters simply by
making it more difficult for them to vote, plaintiffs’ central concerns related to the COVID-19
pandemic. For example, plaintiffs argued that “Tennessee simply cannot ensure voters’ safety at
the polls” and worried about the possible exposure to COVID-19 while waiting in line to vote.
Id. at Page ID 1682. Sweet also stated that he was “particularly concerned that [he] could
contract COVID-19 but be unable to vote absentee because of the first-time voter rule” and that
he did not want to vote in person because of the risk of COVID-19. DE 86-2, Sweet Dec. 2,
Page ID 2670–71. In its order granting the preliminary injunction, the district court also relied
on the unique challenges posed by the COVID-19 pandemic. Memphis A. Phillip Randolph,
485 F. Supp.3d at 982–83. Fortunately, because of advancements in COVID-19 vaccinations
and treatment since this case began, the COVID-19 pandemic is unlikely to pose a serious threat
during the next election cycle. Trends in Number of COVID-19 Cases and Deaths in the US
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 13
Reported to CDC, by State/Territory, Ctrs. for Disease Control and Prevention,
https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (June 15, 2021). There is not a
reasonable expectation that Sweet, other members of the plaintiff organizations, or the public
will face the same burdens as voters did in the fall of 2020. The unique factual situation of this
case makes it one of the rare election cases where the challenged action is not capable of
repetition.
In sum, plaintiffs have not shown that there is a substantial likelihood that their claim
remains justiciable because they no longer have an ongoing legal interest in the outcome of this
case. Since plaintiffs have not established a substantial likelihood of success in demonstrating
subject matter jurisdiction, they are not entitled to a preliminary injunction. See Waskul, 900
F.3d at 256 n.4.
IV.
In conclusion, plaintiffs have failed to justify the continuing need for the preliminary
injunction because plaintiffs have not demonstrated that there is a substantial likelihood that
their claim remains justiciable. Accordingly, we vacate the district court’s preliminary
injunction and remand the case for further proceedings consistent with this opinion.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 14
_________________
CONCURRENCE
_________________
CHAD A. READLER, Circuit Judge, concurring. With no live controversy between the
parties, I agree that the preliminary injunction must be vacated. And should this dispute
resurrect itself in some form, it seemingly would take little work to conclude that Tennessee’s
“first-time voter law” easily passes constitutional muster.
In essence, the Tennessee law in question requires new Tennessee voters either to
register to vote in person or, should they register to vote by mail or online, to vote in person the
first time they vote in an election. See Tenn. Code Ann. § 2-2-115(b)(7). The law’s apparent
impetus is to employ a safeguard that a new voter confirms her identity in person to Tennessee
election officials at least once—either when registering or, alternatively, when voting for the
first time. See id.For matters involving election mechanics, we traditionally have employed the framework
articulated in the Supreme Court’s Anderson-Burdick line of cases. See Burdick v. Takushi,
504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983). For reasons I (and many
others) have previously explained, Anderson-Burdick does little to constrain a court’s
decisionmaking process, and instead leaves federal judges to weigh standards entirely crafted
by the judges themselves. Daunt v. Benson (Daunt I), 956 F.3d 396, 424 (6th Cir. 2020)
(Readler, J., concurring) (“In sensitive policy-oriented cases, [Anderson-Burdick] affords far
too much discretion to judges in resolving the dispute before them.”); Daunt v. Benson (Daunt
II), --- F.3d. ---, 2021 WL 2154769, at *17 (6th Cir. May 27, 2021) (Readler, J., concurring)
(“Anderson-Burdick’s hallmark is standardless standards.”); see, e.g., Graveline v. Benson,
992 F.3d 524, 553 (6th Cir. 2021) (Griffin, J., dissenting) (“This case illustrates once again why
applying Anderson-Burdick’s grant of discretion to the federal judiciary can lead to tension with
the principles of federalism and separation of powers.”); Mays v. LaRose, 951 F.3d 775, 783 n.4
(6th Cir. 2020) (suggesting that it can “take[] some legal gymnastics to quantify the ‘burden’
that the State’s disparate treatment places on [one’s] right to vote,” particularly when a
generally applicable rule treats two groups differently but does not necessarily “burden” either
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 15
one); Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016) (noting that “[t]he
distinction between ‘severe burdens’ and ‘lesser’ ones is often murky” (quoting Buckley v. Am.
Const. Law Found., 525 U.S. 182, 207 (1999) (Thomas, J., concurring))). Unbridled judicial
discretion of this kind rarely lends itself to consistent decisionmaking. Daunt I, 956 F.3d at 425
(Readler, J., concurring) (“In the name of ‘flexibility,’ Anderson-Burdick risks trading precise
rules and predictable outcomes for the imprecision and unpredictability of how the judicial-
assignment wheel turns.”). And that concern is especially troubling when the case at issue
involves voting and elections. Edward B. Foley, Voting Rules and Constitutional Law, 81 Geo.
Wash. L. Rev. 1836, 1859 (2013) (arguing that a test as “indeterminate” as Anderson-Burdick
“is arguably no test at all, and thus the federal constitutional law that is supposed to supervise
the operation of a state’s electoral process has little objectivity or predictability”). After all, our
circuit’s muscular embrace of Anderson-Burdick often means that “the permissibility of [a
state’s] democratic choices in essence turns on how three ([sometimes] two) unelected judges
pick and choose the ways in which a state may structure its government or elections.” Daunt II,
2021 WL 2154769, at *20. Tellingly, other circuits have not followed our lead. See id. at *21–
*22 (observing that “we stand alone when compared to our sister circuits” in aggressively
“deploying Anderson-Burdick”).
Nonetheless, were the Tennessee law at issue here to be measured by that framework, the
district court, in the first instance, would be required to determine both the extent to which the
law burdens the right to vote as well as Tennessee’s interests in the regulation, and then to
weigh the two against one another. See Thompson v. DeWine, 959 F.3d 804, 808 (6th Cir.
2020) (per curiam). As the logic of Anderson-Burdick goes, if the burden is severe, strict
scrutiny applies. Id. If, on the other hand, the law “impose[s] ‘reasonable nondiscriminatory
restrictions’” on voters, rational basis applies and “‘the State’s important regulatory interests
are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788).
And under our Circuit’s precedents, if the burden falls somewhere in between, we weigh that
burden against “the precise interests put forward by the State as justifications for the burden
imposed by its rule, taking into consideration the extent to which those interests make it
necessary to burden the plaintiff’s rights.” Id. (internal quotation marks omitted) (quoting
Burdick, 504 U.S. at 434). But see Daunt II, 2021 WL 2154769, at *22 (“Standing alone from
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 16
our sister circuits, we deem ‘most’ Anderson-Burdick cases to ‘fall in between’ the extremes of
laws that impose severe burdens and no burdens at all, thereby subjecting a wide swath of state
laws to the supposed ‘hard judgment[s]’ that the whims of Anderson-Burdick’s ‘flexible
standard’ ‘demand.’” (alterations in original) (quoting Obama for Am. v. Husted, 697 F.3d 423,
429 (6th Cir. 2012))).
Tennessee’s interests in effectuating its electoral system plainly are sufficient to justify
the registration law given the minimal burden the law imposes on Tennessee voters. As a
starting point, the law is content neutral; its mandate applies regardless of a voter’s “particular
viewpoint, associational preference, or economic status.” Daunt I, 956 F.3d at 407 (quoting
Citizens for Legis. Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998)). The law also does not
“unfairly” restrict “the availability of a political opportunity” or ballot access. Anderson, 460
U.S. at 793 (quoting Clements v. Fashing, 457 U.S. 957, 964 (1982)). There is no
constitutional right to vote absentee. See Mays, 951 F.3d at 792; see also Common Cause Ind.
v. Lawson, 977 F.3d 663, 664 (7th Cir. 2020) (“[A]s long as the state allows voting in person,
there is no constitutional right to vote by mail.”); accord Org. for Black Struggle v. Ashcroft,
978 F.3d 603, 607 (8th Cir. 2020). Nor, to my knowledge, has any court recognized a
constitutional right to register to vote by mail. Cf. U.S. CONST. art. 1, § 4, cl. 1 (providing State
legislatures with authority to regulate the “Times, Places and Manner of holding Elections”).
At most, there is a federal statutory requirement that states allow voters to register by mail, see
52 U.S.C. § 20505, an obligation that Tennessee has honored, and that by all accounts leaves
room for Tennessee to require a voter so registered to vote in person, if the person has not
previously voted in the jurisdiction, see id. at § 20505(c)(1). Requiring voters to appear in
person at least once—either to register or to cast their first vote—may inconvenience some
Tennesseans. But that burden, in view of the law’s general and nondiscriminatory application
to Tennessee voters as a whole, is properly characterized as minimal. See Crawford v. Marion
Cnty. Election Bd., 553 U.S. 181, 206 (2008) (Scalia, J., concurring) (explaining that the burden
of a nondiscriminatory law is analyzed “categorically” under Anderson-Burdick, without
consideration of “the peculiar circumstances of individual voters”); see also id. at 190 (plurality
op.) (explaining that Burdick held that a reasonable, nondiscriminatory election law imposed a
minimal burden despite preventing “a significant number of voters from participating in Hawaii
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 17
elections in a meaningful manner” (internal quotation marks and citation omitted)); Luft v.
Evers, 963 F.3d 665, 675 (7th Cir. 2020) (“One less-convenient feature does not an
unconstitutional system make.”); Ohio Democratic Party v. Husted, 834 F.3d 620, 631 (6th Cir.
2016) (“[B]roadly applicable and non-discriminatory laws are presumed to pass constitutional
muster.”).
Plaintiffs respond that requiring someone to vote in person if they fail to register in
person denies the voter the benefit of Tennessee’s absentee voter laws, infringing upon some
aspect of the “right to vote.” See Ohio Democratic Party, 834 F.3d at 626 (“Though not a
delineated right per se, the Supreme Court has readily acknowledged the general right to vote as
‘implicit in our constitutional system.’” (citation omitted)). But a Tennessee voter can avoid
§ 2-2-115(b)(7)’s “in person” voting requirement simply by registering in person. And in-
person registration occurs virtually year-round, the lone significant limitation being that
registration must occur at least 30 days before an election. See Tenn. Code Ann. § 2-2-109. At
bottom, then, the law at issue merely imposes the “burden” to register in person—at any time,
other than 30 days before an election. It is difficult to describe that burden as anything more
than minimal. Cf. Ohio Democratic Party, 834 F.3d at 628–32 (holding that an Ohio law that
decreased the early voting period to 29 days and eliminated same-day registration imposed a
minimal burden given the variety of voting opportunities available). Truth be told, it is hard to
think of a less burdensome requirement associated with the voting process.
This case, I acknowledge, arose at a difficult period in our nation’s history, during the
height of the COVID-19 pandemic. But the law in question, it bears emphasizing, has been in
existence for decades, see 1994 Tenn. Pub. Acts 839 (amending Tennessee Code § 2-2-115(b)
to include the first-time voter law), and the pandemic is now subsiding, see Covid Data Tracker
Weekly Review, Ctrs. for Disease Control & Prevention (June 11, 2021), https://perma.cc/ZS7C-
W2MP (“Compared with the highest peak on January 10, 2021 (251,834), the current 7-day
average [of daily new cases] decreased 94.4% [(13,997)].”). And even when the law is viewed
through the unique lens of 2020, voting laws need not be put aside due to issues not of the
State’s making. See Thompson, 959 F.3d at 810 (“[W]e cannot hold private citizens’ decisions
to stay home for their own safety against the State.”); see also Common Cause Ind., 977 F.3d at
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 18
664 (“[D]ifficulties attributable to the virus do not require change in electoral rules—not, at
least, as a constitutional matter. That some people are unwilling to vote in person does not
make an otherwise-valid system unconstitutional. It is for states to decide what sorts of
adjustments would be prudent.”). Nor, it happily appears to be the case, was the pandemic a
significant hindrance to voting in the Volunteer State. According to the Tennessee Secretary of
State, Tennesseans cast more than three million votes in the November election, breaking the
State’s previous record by more than 427,000 votes. See Tennessee Breaks Voter Turnout and
Participation Records, Tenn. Sec’y of State (Nov. 4, 2020), https://perma.cc/RCM3-WTJ9
(stating that 3,045,401 Tennesseans cast ballots in the November 3, 2020 election). And a vast
majority of the total votes—some 93 percent—were cast in person. See id; Early and Absentee
Voters for the November 3, 2020 General Election, Tenn. Sec’y of State (Oct. 30, 2020),
https://perma.cc/R5DF-3UUY (stating that 210,428 Tennesseans cast mail-in absentee ballots
in the November 3, 2020 election).
All things considered, a court should have little trouble, in a future case, finding that
Tennessee’s law operates safely within constitutional parameters.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 19
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. Haphazardly wielding the law
and the facts, today’s majority misapplies our mootness jurisprudence and vacates a lawful
preliminary injunction. As to the law, the majority closes its eyes to the myriad election cases
that we have held to fall within the rule for controversies that are “capable of repetition, yet
evading review,” Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005), and rewrites a case
that it disagrees with. In so doing, the majority damages future plaintiffs’ ability to vindicate
through the judicial process the constitutional right to vote. As for the facts, the majority
compounds its legal error with a dim view of the record, ignoring the evidence suggesting that
many Tennessee voters—likely Plaintiffs’ own members—will find themselves once again
qualified to vote absentee by mail in the next election cycle but barred from doing so by
Tennessee Code § 2-2-115(b)(7). Because I would hold that Plaintiffs have demonstrated a
substantial likelihood that their case is justiciable and that their constitutional claim will
ultimately succeed, I must dissent.
I.
Defendants argue that we should vacate the district court’s preliminary injunction of
Tennessee Code § 2-2-115(b)(7), which requires first-time, mail-registered voters in Tennessee
to vote in person even if they would otherwise qualify to vote absentee by mail, because there is
a substantial likelihood that this case is nonjusticiable. Specifically, Defendants contend that
this case is nonjusticiable because (1) Corey DeWayne Sweet was not a member of the
Tennessee State Conference of the NAACP (“Tennessee NAACP”) at the time that Plaintiffs
filed their complaint such that they lacked standing to sue or (2) this case became moot when
Sweet lost eligibility to vote absentee by mail. The majority properly rejects the first of these
arguments. But in adopting Defendants’ second argument as its own, the majority defies
Supreme Court and Sixth Circuit precedent. I would hold Plaintiffs’ claim to be justiciable and
reach the merits.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 20
The judicial power of federal courts extends only to “Cases” and “Controversies,” U.S.
Const. art. III, § 2, cl. 1, a (somewhat nebulous) limitation that gives rise to the justiciability
doctrines of standing and mootness, Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 180 (2000). Together, these complementary doctrines ensure that the
federal courts “only adjudicate actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305,
317 (1988). Standing does so by focusing on the initiation of the lawsuit, asking whether the
plaintiff, at the time they filed their complaint, had a “personal stake in the outcome.” City of
Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204
(1962)); see Friends of the Earth, 528 U.S. at 191–92. Once the plaintiff has overcome the
standing hurdle, mootness doctrine comes into play, ensuring that the plaintiff maintains their
personal stake in the outcome throughout the pendency of the case. Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013). Thus, mootness has sometimes been referred to as “the doctrine of
standing set in a time frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence (mootness).”
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan,
Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)).1
That shorthand description of mootness as “standing set in a time frame” can be
misleading. Although standing requires a showing that the plaintiff has suffered an “actual or
imminent” injury that is “fairly traceable to the challenged action of the defendant” and is
“likely” to be “redressed by a favorable decision,” Friends of the Earth, 528 U.S. at 180–81,
190, the threshold for mootness is more relaxed: “a case becomes moot only when subsequent
events make it absolutely clear that the allegedly wrongful behavior cannot reasonably be
expected to recur and ‘interim relief or events have completely and irrevocably eradicated the
effects of the alleged violation.’” Cleveland Branch, N.A.A.C.P, 263 F.3d at 530–31 (emphases
1The majority suggests that there is some doubt as to whether a plaintiff must “maintain standing
throughout the lawsuit” or whether the standing inquiry is “confined . . . to the moment when the lawsuit was filed.”
Maj. Op. at 8. But if standing had to be maintained throughout the pendency of a lawsuit, there would be no need
for a mootness doctrine at all. See Friends of the Earth, 528 U.S. at 190–91. We would simply ask whether events
occurring after the complaint was filed negated any of the elements of standing. Our cases are clear that we assess a
plaintiff’s standing to sue as of the time that they filed their complaint. See Cleveland Branch, N.A.A.C.P. v. City of
Parma, 263 F.3d 513, 524 (6th Cir. 2001) (“[S]tanding does not have to be maintained throughout all stages of
litigation. Instead, it is to be determined as of the time the complaint is filed.”); Sumpter v. Wayne County, 868 F.3d
473, 490 (6th Cir. 2017) (same). Until that binding precedent is overruled, we must follow it.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 21
added) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In maintaining
this doctrinal distinction between standing and mootness, courts minimize the risk of “sunk
costs to the judicial system” resulting from mooted cases, Friends of the Earth, 528 U.S. at191–92 & n.5, and ensure the courts’ ability to vindicate constitutional rights where the
personal stake at issue is too fleeting to last the duration of a lengthy court process, see Roe v.
Wade, 410 U.S. 113, 125 (1973).
With the above principles in mind, I agree with the majority that Plaintiffs have
demonstrated a likelihood of establishing standing at the time that they filed their complaint.
See Online Merchants Guild v. Cameron, 995 F.3d 540, 547 (6th Cir. 2021) (“To succeed on
the merits, a party must first reach the merits, and to do so it must establish standing.”). As the
majority explains, it was not clear error for the district court to rule that Sweet was likely a
member of the Tennessee NAACP when Plaintiffs filed their operative complaint on June 12,
2020. Because Sweet—a first-time, mail-registered voter who at the time qualified to vote
absentee by mail under a state-court injunction—was prevented from voting absentee by mail
by § 2-2-115(b)(7), he would have standing to challenge the constitutionality of that law in his
own right. Accordingly, the Tennessee NAACP likely has associational standing to do so on
Sweet’s behalf. See Friends of the Earth, 528 U.S. at 181 (“An association has standing to
bring suit on behalf of its members when its members would otherwise have standing to sue in
their own right, the interests at stake are germane to the organization’s purpose, and neither the
claim asserted nor the relief requested requires the participation of individual members in the
lawsuit.”).
I cannot agree, however, with the majority’s mootness analysis, which is wholly
untethered from our jurisprudence. To reiterate, asking whether a case has become moot is not
the same thing as asking whether the plaintiff would have standing if they filed their suit today.
See Friends of the Earth, 528 U.S. at 190–91; Cleveland Branch, N.A.A.C.P., 263 F.3d at 530–
31. For example, as relevant here, a case is not moot when the complained-of conduct is
“capable of repetition, yet evading review,” even if intervening events have rendered the
likelihood of the injury recurring too speculative for standing purposes. Honig, 484 U.S. at 318(quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)); see Friends of the Earth, 528 U.S. at 190
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 22
(“[T]here are circumstances in which the prospect that a defendant will engage in (or resume)
harmful conduct may be too speculative to support standing, but not too speculative to
overcome mootness.”). Under the “capable of repetition, yet evading review” rule, a case is not
moot so long as “(1) the challenged action was in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action again.” Lawrence, 430 F.3d at 371(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). This is a forgiving standard: a
“reasonable expectation” does not require a showing “that a recurrence of the dispute [is] more
probable than not.” Honig, 484 U.S. at 318 n.6. Indeed, “the chain of potential events does not
have to be air-tight or even probable to support the court’s finding of non-mootness. Instead, it
is sufficient that [the plaintiffs] possibly could have found [themselves] once again in the same
situation [they] faced when [the] suit was filed.” Barry v. Lyon, 834 F.3d 706, 716 (6th Cir.
2016).
To illustrate just how forgiving the “capable of repetition, yet evading review” rule can
be when properly applied, consider first a case from outside the election context. In Honig, the
Supreme Court considered a suit brought by two students, John Doe and Jack Smith, under
what is now known as the Individuals with Disabilities Education Act (“the Act”), 20 U.S.C.
§ 1400 et seq., which grants substantive and procedural educational rights to persons with
disabilities through the age of 21 by conditioning federal funding upon compliance. Honig,
484 U.S. at 308–09. For example, the Act provided the “right to a free appropriate public
education,” required that covered students not be removed from a “regular classroom setting”
unless “education in regular classes . . . cannot be achieved satisfactorily,” and included a “stay-
put” provision designed to allow a student to remain in their “current educational placement”
while challenging proposed changes to the student’s placement through a hearing process. Id.at 309–12 (alteration in the original) (quoting 20 U.S.C. §§ 1412(1), 1412(5), 1415(e)(5)). The
students brought suit against various San Francisco Unified School District (“SFUSD”)
officials, among others, to challenge the district’s failure to adhere to the Act’s “stay-put”
provision during disciplinary proceedings for “disruptive behavior” related to their disabilities.
Id. at 312–16. By the time the case reached the Supreme Court, however, seven years had
passed and Doe was 24 years old and Smith was 20. Id. at 318, 322. Faced with the suggestion
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 23
that the case was moot, the Court agreed as to Doe—because the Act’s protections apply only
through the age of 21 and Doe was 24, his case was not “capable of repetition.” Id. at 318. The
Court reached the opposite conclusion as to 20-year-old Smith, despite the fact that Smith was
no longer enrolled at SFUSD or any other California public school and his counsel could not
represent that Smith had any intention to reenroll before his eligibility expired. Id. at 318–19 &
n.6. The Court reasoned that there was still a reasonable expectation that Smith would “again
be wronged in a similar way” if he reenrolled, engaged in similarly disruptive behavior, and
school officials chose again unilaterally to exclude Smith from his educational setting during
disciplinary proceedings. Id. at 323 (quoting Lyons, 461 U.S. at 111).
The “reasonable expectation” identified as sufficient to overcome a mootness challenge
in Honig is just as speculative as it sounds. As Justice Scalia argued in a vehement dissent,
there was simply no indication that Smith had any intention to reenroll in a California
public school—not even Smith’s counsel could represent that Smith had any intention to
reenroll—beyond the fact that Smith had continued to pursue his lawsuit. Id. at 337 (Scalia, J.,
dissenting). Furthermore, Justice Scalia opined, it seemed “quite unlikely” that, even if Smith
reenrolled, his school would choose to place Smith in a similar environment that could not
adequately deal with his behavior, given that the Act required schools “to provide an
‘appropriate’ education in ‘the least restrictive environment.’” Id. at 338–39 (Scalia, J.,
dissenting). Add to that the uncertainty that Smith would again face discipline for his behavior
or that school officials would exclude him from his educational placement during disciplinary
proceedings, and Justice Scalia saw no “demonstrated probability” that the case would recur as
to Smith. Id. at 336–37 (Scalia, J., dissenting). Yet the majority rejected Justice Scalia’s
attack, observing that the Court has “found controversies capable of repetition based on
expectations that, while reasonable, were hardly demonstrably probable.” Id. at 318 n.6. The
majority explained that the mootness inquiry turns on “whether the controversy was capable of
repetition and not, as the dissent seem[ed] to insist, whether the claimant had demonstrated that
a recurrence of the dispute was more probable than not.” Id. That was not the case for Doe,
who was incapable of availing himself of the benefits of the Act because of his age, id. at 318,
but was the case for Smith, who could reasonably be expected to reenroll and face similar
wrongs under the Act if he did so, id. at 318–20 & n.6.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 24
Now consider another illustration from this court, which has acknowledged that the
“capable of repetition, yet evading review” rule is even more forgiving in the context of
election cases. In Lawrence, we considered a lawsuit claiming that an Ohio law requiring
independent candidates to file a candidacy statement and nominating petition “by 4:00 p.m. on
the day before the primary election immediately preceding the general election at which the
candidacy is to be voted on by the voters” violated the First and Fourteenth Amendments.
430 F.3d at 370. The plaintiffs were David Lawrence, who sought to run as an independent
congressional candidate in the 2004 general election but failed to provide a nominating petition
until about three months after the March 1, 2004 deadline had passed, and Yifat Shilo, who
wanted to vote for Lawrence. Id. By the time the case reached us on appeal, the 2004 election
had already taken place, an intervening event that the defendants argued mooted the case. Id.We disagreed. Applying the two-prong approach for determining whether a controversy is
“capable of repetition, yet evading review,” we noted that “[c]hallenges to election laws are one
of the quintessential categories of cases which usually fit [the first] prong because litigation has
only a few months before the remedy sought is rendered impossible by the occurrence of the
relevant election.” Id. at 371. Turning to the second prong, we acknowledged that the analysis
was “more complex because there [was] no evidence in the record addressing whether
Lawrence plan[ned] to run for office or Shilo plan[ned] to vote for an independent candidate in
a future election.” Id. We held, however, that there was still a reasonable expectation that the
controversy would recur with respect to either plaintiff because Lawrence was still “capable” of
running in a future election and Shilo might wish to vote for an independent candidate in the
future. Id. In the alternative, we held that “[e]ven if the court could not reasonably expect that
the controversy would recur with respect to Lawrence or Shilo, the fact that the controversy
almost invariably will recur with respect to some future potential candidate or voter in Ohio is
sufficient to meet the second prong because it is somewhat relaxed in election cases.” Id. at
372. In doing so, we recognized that courts usually require a reasonable expectation that the
controversy will recur between the same parties but explained that “[c]ourts have applied the
capable of repetition yet evading review exception to hear challenges to election laws even
when the nature of the law made it clear that the plaintiff would not suffer the same harm in the
future.” Id. (citing Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973); Dunn v. Blumstein,
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 25
405 U.S. 330, 333 n.2 (1972); Honig, 484 U.S. at 335–36 (Scalia, J., dissenting)). Thus, the
harm that Lawrence and Shilo suffered was “capable of repetition, yet evading review” because,
if the Ohio law remained in place, future candidates and future voters could “suffer the same
harm.” Id.Returning to the case before us today and with Honig and Lawrence in mind, I would
hold that the there is a substantial likelihood that Plaintiffs’ case remains justiciable under the
“capable of repetition, yet evading review” rule. The first prong is uncontroversial: the period
between elections is too short for a plaintiff to litigate fully a challenge of Tennessee’s first-
time voter requirement before the next election takes place, at which point they will have
irredeemably lost their ability to vote absentee by mail in that election. See Lawrence, 430 F.3d
at 371. The second prong is apparently more controversial, though it should not be. The
majority holds that there is a substantial likelihood that this case is moot because Sweet is no
longer eligible to vote absentee and there is no reasonable expectation that he will regain that
eligibility in the future. Maj. Op. at 9–10. That holding suffers from three fatal flaws. First,
Lawrence directs us in an election case to look beyond the parties before us and ask whether the
harm could reasonably be expected to recur as to future voters. That is a certainty here.
Second, even if we ignored Lawrence, and limited our inquiry to whether the controversy could
reasonably be expected to recur between the “same complaining part[ies],” Weinstein, 423 U.S.
at 149, the proper focus would be on the Tennessee NAACP, which, unlike Sweet, is a party to
this case. Considering the Tennessee NAACP’s over 10,000 members and its regular voter
registration activities, I have no difficulty concluding that there is a reasonable expectation that
this controversy will recur with respect to a Tennessee NAACP member in the future. Third,
even if we artificially limited the inquiry to Sweet, there would still be a reasonable
expectation that he will regain eligibility to vote absentee by mail but be prevented from doing
so under § 2-2-115(b)(7).
The majority’s first mistake is the easiest to address. With Lawrence in hand, the second
prong should have required little more analysis than the first. Under Lawrence, whether or not
this controversy could reasonably be expected to recur with regard to Sweet is inconsequential
because Plaintiffs’ asserted injury is “capable of repetition, yet evading review” as to future
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voters. 430 F.3d at 372. If Tennessee’s first-time voter requirement remains in place, it is a
certainty that future voters who would otherwise qualify to vote absentee by mail will be forced
to vote in person instead (if at all), which is the very injury that the majority holds to be
sufficiently cognizable to demonstrate a likelihood of establishing standing as to Sweet and the
Tennessee NAACP. Thus, Defendants’ argument that this case is not “capable of repetition, yet
evading review” fails because it ignores the reasonable expectation—indeed, the certainty—that
first-time voters who would otherwise qualify to vote absentee in future Tennessee elections
will “suffer the same harm,” id., that gave the Tennessee NAACP standing through Sweet. The
majority all but ignores Lawrence, which cannot be reconciled with today’s holding.
Turning to the majority’s second error, I will, for the sake of argument only, pretend that
this is not an election case, and that the controversy must reasonably be expected to recur as to
the “same complaining part[ies].” Weinstein, 423 U.S. at 149. To begin with an obvious, but
necessary point, it is the Tennessee NAACP that is a party to this case, not Sweet. To be sure,
it is Sweet’s interests that served as the predicate for establishing the Tennessee NAACP’s
associational standing, but our caselaw rejects the proposition that an organizational plaintiff’s
case is necessarily moot when a member who serves as a basis for the organization’s
associational standing would lose their personal stake in the outcome of the case.
To accomplish its sleight of hand—analyzing the justiciability of Sweet’s hypothetical
claim, not the Tennessee NAACP’s real one—the majority rewrites the case that has already
rejected its foundational premise. In Cleveland Branch, N.A.A.C.P., we considered a suit
brought by the Cleveland Branch of the NAACP (“Cleveland NAACP”) challenging the City of
Parma’s discriminatory hiring practices. 263 F.3d at 516–17. We held that the organizational
plaintiff had associational standing to sue on behalf of Artis Tomblin, who was a member of the
Cleveland NAACP when it filed its complaint and wanted to pursue employment with the city
as a police officer or fireman but had not learned of various employment opportunities due to
the city’s hiring practices. Id. at 526. But by the time that the case reached this court, Tomblin
was no longer a member of the Cleveland NAACP and no longer expressed “a present concrete
interest in obtaining employment in Parma.” Id. at 523, 529. We nevertheless held that the
case was not moot, pointing out that the challenged practices remained in place and could
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reasonably be expected to recur with regard to future applicants, without regard to whether
Tomblin was among them. Id. at 530–32. Our approach prompted a fervent dissent by Judge
Boggs, who insisted—as the majority does here—that the Cleveland NAACP’s actual case
became moot when Tomblin’s hypothetical one would have. Id. at 539–41. Today, however,
under the majority’s revisionist history, Judge Boggs’s dissent is erroneously believed to be the
controlling opinion from Cleveland Branch, N.A.A.C.P., not the majority opinion. A dissent
does not become law by fiat of a new majority.
Read faithfully, Cleveland Branch, N.A.A.C.P. establishes that even where a complaining
party must show that a controversy could reasonably be expected to recur as to itself in order to
establish that its case is justiciable, an organizational plaintiff can do so without reference to an
individual member who served as the basis for its associational standing. That reading is
harmonious with our broader mootness precedent, under which we ask whether the Tennessee
NAACP “possibly could have found [itself] once again in the same situation [it] faced when
this suit was filed.” Barry, 834 F.3d at 716. There is simply no doubt that it is possible—that
there is a “reasonable expectation,” Honig, 484 U.S. at 319–20 (quoting Murphy, 455 U.S. at
482)—that the Tennessee NAACP will find itself with members who are prevented from voting
absentee by mail by § 2-2-115(b)(7). The Tennessee NAACP has over 10,000 members across
the state and “[v]oter engagement has been a key aspect of [the] Tennessee NAACP’s work
since its founding.” R. 78-1 (Sweet-Love Decl. at ¶¶ 10, 17) (Page ID #2522). Among the
organization’s voter engagement activities are voter-registration drives at colleges and high
schools, and Gloria Sweet-Love, the president of the Tennessee NAACP, submitted a
declaration stating that “[m]any young people that [the] Tennessee NAACP registers are
college students or future college students that would be eligible to vote absentee under
Tennessee’s Eligibility Criteria, even before the recent Chancery Court ruling permitting
essentially all Tennessee voters to request to vote by mail.” Id. at ¶ 20 (Page ID #2523); see
Tenn. Code Ann. § 2-6-201(1)–(2) (allowing Tennessee voters to vote absentee by mail if they
will be outside the county where they are registered during the voting period or if they are
students enrolled in-state but outside of their county of registration). It takes no great leap of
inference to conclude that some of those students who register to vote for the first time through
a Tennessee NAACP registration drive will themselves be a Tennessee NAACP member, and
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thus will be in the same position that Sweet was in at the time that Plaintiffs filed their amended
complaint on June 12, 2020. Thus, the controversy is “capable of repetition, yet evading
review.”
Turning, finally, to the third error in the majority’s mootness analysis, I will indulge for
the moment the majority’s demonstrably false premise that the likelihood of this case remaining
justiciable depends entirely on whether Sweet’s hypothetical case—and only Sweet’s
hypothetical case—would itself be moot. Even accepting that premise, I would dissent, because
Defendants have failed to convince me that Sweet’s own case would be moot.
The majority concludes that Sweet’s own case would have become moot once he no
longer qualified to vote absentee by mail, which occurred on August 5, 2020, when the
Tennessee Supreme Court vacated a temporary injunction in effect when Plaintiffs filed their
amended complaint, which had allowed any Tennessee voter to vote absentee by mail if they
determined that it was “impossible or unreasonable” to vote in person because of COVID-19.
Fisher v. Hargett, 604 S.W.3d 381, 385 (Tenn. 2020). Although I agree that Sweet no longer
presently qualified to vote absentee by mail after that ruling, with or without § 2-2-115(b)(7),
I would nevertheless conclude that there is a reasonable expectation that Sweet would again in
the future be harmed by the rule, such that his case would fall within the “capable of repetition,
yet evading review” rule. First, there is no indication that Sweet voted in the November 3, 2020
General Election, and thus we must assume that he still qualifies as a first-time voter, especially
since he elected not to vote in the August 2020 primary election due to concerns over COVID-
19. R. 86-2 (Sweet Decl. II at ¶ 6) (Page ID #2670). Although Plaintiffs’ counsel was unable
to represent at oral argument whether Sweet voted in November (which would mean he was no
longer a first-time voter subject to § 2-2-115(b)(7)), that does not prevent this case from
remaining justiciable any more than in Honig, where the case remained justiciable despite
counsel for Smith’s inability to represent whether Smith wished to reenroll. See 484 U.S. at318 n.6. Next, it is entirely possible that Sweet will regain his eligibility to vote absentee by
mail. For example, he may choose to return to school at Xavier University in Louisiana, in
which case he would likely qualify to vote absentee by mail in future elections under Tennessee
Code § 2-6-201(1), which allows those who will be away from the county where they are
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registered during the voting period to vote absentee by mail. Sweet could also qualify to vote
absentee by mail if he were travelling, id., sick, id. § 2-6-201(5)(C), or serving on a jury, id.
§ 2-6-201(4). The majority derides these possibilities as “speculation,” Maj. Op. at 10, but in
Friends of the Earth, the Supreme Court explained that the possibility that a harm will recur
“may be too speculative to support standing, but not too speculative to overcome mootness.”
528 U.S. at 190. I think this such a case. At the very least, Sweet’s previous enrollment at
Xavier University separates him from “a general Tennessee voter,” Maj. Op. at 10, and supports
a reasonable expectation that Sweet will qualify to vote absentee by mail in the future. Sweet
spent his freshman and sophomore years at Xavier University and it is reasonable to expect that
he would wish to return if and when classes went back to in person. See R. 86-2 (Sweet Decl.
II at ¶¶ 2–3) (Page ID #2669). Even if it is not probable that Sweet will take that path, it is
reasonable to expect that he will (or that he will otherwise regain eligibility to vote absentee by
mail), and thus it is reasonable to expect that Sweet will find himself in the same position that
he found himself in at the beginning of the case: qualified to vote absentee by mail, but unable
to do so because of § 2-2-115(b)(7).
The balance of the majority opinion relies on the proposition that this case is not
“capable of repetition, yet evading review” because it is based on a “unique factual situation,”
i.e., COVID-19. Maj. Op. at 11–13. Because COVID-19 is a “once-in-a-century crisis,” id. at
12, the majority explains, we need not worry that we will face a similar case again. Indeed,
according to the majority “because of advancements in COVID-19 vaccinations and treatment
since this case began, the COVID-19 pandemic is unlikely to pose a serious threat during the
next election cycle. There is not a reasonable expectation that Sweet, other members of the
plaintiff organizations, or the public will face the same burdens as voters did in the fall of
2020.” Id. at 12–13 (citation omitted). I do not share the majority’s willingness to declare a
premature end to the COVID-19 pandemic, let alone to turn that into a reason to hold that this
case is likely nonjusticiable, especially when not even Defendants have argued that as a basis
for vacating the district court’s preliminary injunction.
To be sure, recent advancements in COVID-19 vaccinations and treatment are worthy of
celebration, and there is good reason to be optimistic that better days are ahead of us given the
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 30
significant decline in case numbers across the country. But it is one thing to be optimistic that
we will be free of COVID-19 before the next election cycle, and it is quite another thing to turn
that hope into a fundamental premise upon which to vacate a lawfully entered preliminary
injunction. As Dr. Rochelle P. Walensky, Director of the Centers for Disease Control and
Prevention, testified before the Senate Committee on Health, Education, Labor & Pensions just
last month:
While COVID-19 cases have recently decreased, COVID-19 transmission
remains widespread across the nation. We are hopeful. We have made significant
progress in getting shots in arms. But, given that many people around the country
are not yet fully vaccinated and given the threat of variants, we must remain
cautious.
An Update from Federal Officials on Efforts to Combat COVID-19: Hearing Before the
S. Comm. on Health, Education, Labor & Pensions, 117th Cong., at 2 (May 11, 2021)
(written testimony of Dr. Rochelle P. Walensky) (available at
https://www.help.senate.gov/imo/media/doc/Walensky1.pdf). Things are looking brighter, but
we are not out of the COVID-19 woods just yet.
The bottom line is that Article III judges should not be in the business of declaring an
end to the COVID-19 pandemic: we “do not have the background, competence, and expertise to
assess public health.” Bill & Ted’s Riviera, Inc. v. Cuomo, 494 F. Supp. 3d 238, 248 (N.D.N.Y.
2020). Words cloaked in our robes carry real weight, and I am loath to minimize a disease that
has killed about 600,000 Americans and over 3,800,000 persons worldwide. See United States
COVID-19 Cases and Deaths by State, Ctrs. for Disease Control and Prevention,
https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days; WHO Coronavirus
(COVID-19) Dashboard, World Health Org., https://covid19.who.int/. I hope that the majority
is right, and that COVID-19 will be a distant memory by the next election cycle. Certainly, our
recent progress against the disease is a testament to American ingenuity and scientific
achievement. But the thing about a “once-in-a-century crisis,” Maj. Op. at 12, is that it is hard
to know how it will develop over the coming months and years, particularly when COVID-19
has defied expectations to this point and with new variants and seasonal surges threatening to
undo hard-won progress. At the very least, COVID-19 is “capable” of continuing to burden
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 31
this country through the next general election, and thus it is reasonable to expect that Sweet and
voters like him will find themselves in a similar position to the one that they found themselves
in on November 2, 2020. See Honig, 484 U.S. at 318–20 & n.6. Even if that possibility is
improbable, it is enough to make this case “capable of repetition, yet evading review.” Id. At
least until we are certain that COVID-19 will not be a significant threat during the next election
cycle, the majority’s threadbare proclamations are not enough to moot this case.
In sum, there is a substantial likelihood that this case was and remains justiciable.
Accordingly, I think it likely that we would reach the merits, to which I turn now.
II.
Plaintiffs’ constitutional claim is straightforward: Tennessee Code § 2-2-115(b)(7)
burdens their members’ fundamental right to vote in violation of the First and Fourteenth
Amendments. The parties agree that Plaintiffs’ claim should be reviewed under the balancing
test set forth by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), and
Burdick v. Takushi, 504 U.S. 428 (1992). Under the Anderson-Burdick standard, “the
rigorousness of our inquiry into the propriety of a state election law depends upon the extent to
which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 504
U.S. at 434. At one extreme, where “States impose severe restrictions on the right to vote, such
as poll taxes or limiting access to the ballot, strict scrutiny applies.” Mays v. LaRose, 951 F.3d
775, 784 (6th Cir. 2020). At the other extreme, where a state “imposes only ‘reasonable,
nondiscriminatory restrictions’ upon the First and Fourteenth Amendments rights of voters, ‘the
State’s important regulatory interests are generally sufficient to justify’ the restrictions.”
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). If a case falls somewhere
between these two extremes—because the burden on the right to vote is moderate—“the
Anderson-Burdick framework departs from the traditional tiers of scrutiny and creates its own
test.” Mays, 951 F.3d at 784. In such cases, the court must weigh
“the character and magnitude of the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff seeks to vindicate” against
“the precise interests put forward by the State as justifications for the burden
imposed by its rule,” taking into consideration “the extent to which those interests
make it necessary to burden the plaintiff’s rights.”
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Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). “Only where the State’s
interests outweigh the burden on the plaintiff’s right to vote do voting restrictions not offend the
[First Amendment].” Mays, 951 F.3d at 784.
The district court held that Plaintiffs are likely to succeed on the merits because § 2-2-
115(b)(7) is likely a moderate burden on the right to vote, and that burden outweighs the state’s
asserted interests. Defendants challenge that ruling at both steps. First, Defendants argue that
the district court erred in concluding that § 2-2-115(b)(7) places a moderate burden on the right
to vote, triggering heightened scrutiny. Instead, Defendants argue that the statute places only a
minimal burden on the right to vote, because it does not prohibit Tennessee voters from voting
in person, either early or on election day, such that rational basis review should apply. Second,
Defendants argue that even if heightened scrutiny is applicable, the district court erred in its
balancing of the burden § 2-2-115(b)(7) places on the right to vote against the state’s asserted
interests.
The first of Defendant’s arguments is effectively foreclosed by this court’s precedent.
As Defendants recognize, this court “must evaluate the burden on disparately treated voters
considering all available opportunities to vote.” Mays, 951 F.3d at 785. Thus, in Obama for
America v. Husted, we affirmed an injunction that enjoined the enforcement of an Ohio law that
prevented some voters from casting early (in-person) ballots during the three days before the
election. 697 F.3d 423, 425 (6th Cir. 2012). Despite the fact that voters who could not cast an
early ballot during those three days were free to vote early and in person before that time or on
election day, the court concluded that the burden was moderate because the plaintiffs “did not
need to show that they were legally prohibited from voting, but only that ‘burdened voters have
few alternate means of access to the ballot.’” Id. at 431 (quoting Citizens for Legislative Choice
v. Miller, 144 F.3d 916, 921 (6th Cir. 1998)). The same reasoning applies here. Many if not
most Tennessee voters qualify to vote absentee by mail because they cannot vote in person, or
would have great difficulty doing so. See generally Tenn. Code Ann. § 2-6-201. For those
voters, the burden caused by § 2-2-115(b)(7) is severe if it will be their first time voting,
because there are “few alternate means of access to the ballot” aside from voting absentee by
mail. Obama for America, 697 F.3d at 431 (quoting Miller, 144 F.3d at 921). Nevertheless, the
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burden is reduced for other voters, who will be merely inconvenienced by the rule—for
example, if they qualify to vote absentee by mail only because they are over 60, Tenn. Code
Ann. § 2-6-201(5)(A)—suggesting that strict scrutiny is inappropriate. Thus, this case—like
most cases—involves a moderate burden that triggers the flexible standard from Anderson-
Burdick. See Obama for Am., 697 F.3d at 429.2
Because the burden here is moderate, we must weigh the burden against “‘the precise
interests put forward by the State as justifications for the burden imposed by its rule,’ taking
into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s
rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). On appeal, Defendants
identify two such interests: (1) combatting voter fraud and (2) complying with the Help
America Vote Act.
As to the first of these justifications, there is a legitimate question as to whether
preventing voter fraud was a “precise interest[] put forward by the State as justification[] for the
burden imposed by its rule.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
Indeed, the district court specifically remarked on the fact that Defendants did not put the voter-
fraud justification forward below. Memphis A. Phillip Randolph Inst. v. Hargett, 485 F. Supp.
3d 959, 998–99 (M.D. Tenn. 2020). Although Defendants generally alluded to the fact that
mail voting limits their ability to confirm a voter’s identify, which in turn makes it more
difficult to prevent voter fraud—the eerie spectre of “ghost voting,” as Defendants term it—this
was not in the context of their arguments regarding the justifications for § 2-2-115(b)(7). See
R. 46-1 (Goins Decl. at ¶ 11) (Page ID #1827). To the contrary, Defendants argued below that
“the provisions of . . . § 2-2-115(7) [sic] do nothing more than implement Congress’s intent as
reflected in both the National Voter Registration Act (“NVRA”), 52 U.S.C. § 20505(c) and
Section 303(b) of the [HAVA] (codified at 52 U.S.C. § 21083).” R. 46 (Opposition at 23)
2Defendants’ argument relies on McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802,
809 (1969), for the proposition that rational basis review must apply because there is no constitutional right to vote
absentee. However, as Plaintiffs note, that case came before the Supreme Court established the Anderson-Burdick
framework and has separately been undercut by cases declining to follow it. See, e.g., O’Brien v. Skinner, 414 U.S.
524, 528–29 (1974); Am. Party of Texas v. White, 415 U.S. 767, 795 (1974).
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 34
(Page ID #1787) (emphasis added).3 If, in fact, that is the “only” justification for § 2-2-
115(b)(7), it follows that voter fraud is not a justification for § 2-2-115(b)(7). These days, the
magic words “voter fraud” can get a state a long way in voting rights litigation—but magic
words work only if they are invoked, and Defendants seem to have failed to invoke “voter
fraud” below.
In any case, even assuming (without deciding) that Defendants articulated voter fraud as
a justification for § 2-2-115(b)(7), that interest would fail to warrant the burden it imposes
given the alternatives available to Tennessee (which it has since implemented). To the extent
that § 2-2-115(b)(7) combats voter fraud, it does so by granting Tennessee an opportunity, at
least the first time a voter votes in an election, to confirm that their voter registration matches
their identification. See generally R. 46-1 (Goins Decl.) (Page ID #1823–35). But Defendants
have failed to explain why other available options—which would allow a first time voter to
vote absentee by mail—would be any less effective. See Memphis A. Phillip Randolph Inst.,
485 F. Supp. 3d at 999 n.37 (noting that even if Defendants had raised voter fraud as a
justification, “they would have encountered difficulties at [the next step] of the Anderson-
Burdick analysis, because they have not explained how requiring first-time, mail-registered
voters to submit the required identification in person when voting helps prevent fraudulent
voting to any greater extent than requiring the submission of such identification with mailed-in
ballots.”). For example, after the district court issued its preliminary injunction, Tennessee
implemented a new policy, requiring that at least some first-time absentee voters mail in proof
of identification along with their ballots.4 This approach satisfies Tennessee’s interest in
confirming a match between the registration information and the voter’s identification, while
allowing even first-time voters to vote absentee by mail if they qualify to do so. Even if having
the voter come in person to present their identification might be more effective—say, because it
would be possible to compare a driver’s license photo to the voter presenting it—the difference
would be marginal, and insufficient to outweigh the potentially severe burden that § 2-2-
115(b)(7) imposes on first time voters.
3On appeal, Defendants no longer insist that the statute is necessary to comply with the NVRA.
4Information for First-Time Voters Who Registered by Mail, Tenn. Sec’y of State,
https://sos.tn.gov/products/elections/information-first-time-voters-who-registered-mail (last accessed May 7, 2021).
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As for Defendant’s second justification—that § 2-2-115(b)(7) is necessary to comply
with HAVA—they at least presented that argument to the district court. The argument,
however, is meritless because HAVA does not require first-time voters who registered to vote
by mail to vote in person the first time that they vote. See 52 U.S.C. § 21083(b) (allowing first
time voters to vote by mail if they submit identification with their mail ballot, exempting voters
who registered by mail but submitted a copy of their registration with that identification).
Thus, Tennessee Code § 2-2-115(b)(7) is likely unconstitutional under Anderson-
Burdick because Defendants’ justifications for the rule fail to outweigh the burdens it imposes.
Accordingly, because Plaintiffs’ constitutional claim is likely justiciable, the district court
correctly concluded that Plaintiffs are likely to succeed on the merits.
III.
That leaves the remaining preliminary injunction factors. With no election looming, this
is an ordinary constitutional case where likelihood of success on the merits is determinative.
See Online Merchants Guild, 995 F.3d at 560; cf. Memphis A. Philip Randolph Inst. v. Hargett,
977 F.3d 566, 567 (6th Cir. 2020). “When constitutional rights are threatened or impaired,
irreparable injury is presumed.” Obama for Am., 697 F.3d at 436. And although Tennessee has
“a strong interest in [its] ability to enforce state election law requirements, the public has a
strong interest in exercising the fundamental political right to vote.” Id. at 436–37 (internal
quotation marks and citation omitted). Insofar as § 2-2-115(b)(7) is likely unconstitutional, the
equities and the public interest favor upholding the district court’s preliminary injunction.
IV.
In sum, the district court did not abuse its discretion when it preliminarily enjoined the
enforcement of § 2-2-115(b)(7). There is a substantial likelihood that this case remains
justiciable, there is a substantial likelihood that Plaintiffs will prevail on the merits, and,
accordingly, the equities favor preliminary relief. Thus, I dissent.