Thomas Burrell v. Tipton Cnty. Election Comm'n ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0415n.06
Case No. 22-5867
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
THOMAS BURRELL, ) Oct 18, 2022
) DEBORAH S. HUNT, Clerk
Plaintiff - Appellant,
)
)
v.
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
TIPTON COUNTY ELECTION
COMMISSION; JIMMY VANDERGRIFT; ) COURT FOR THE WESTERN
LETITIA WILSON; CHRIS BRENT; KAY ) DISTRICT OF TENNESSEE
BERGEN; THETA RONE; CINDY PINNER; )
MARK GOINS, ) OPINION
)
Defendants - Appellees. )
Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Thomas Burrell appeals the district court’s
denial of a temporary restraining order (“TRO”) he sought against the Tipton County Election
Commission (“the Commission”) to secure a place on the November 8, 2022, ballot.1 Before us
at the present time is his emergency motion to stay the district court’s order.
Burrell wishes to be a candidate for mayor of Mason, Tennessee, but was barred from
candidacy because the Commission determined that he did not meet the residency requirement.
Burrell sought a TRO on his 42 U.S.C. § 1983 claims that the residency requirement violates his
Fourteenth Amendment right to travel and that the Commission’s decision to deny his candidacy
violates his First and Fourteenth Amendment right to vote. He additionally argued that the
1
The defendants are the Commission, the Commission’s individual members, the County
Administrator of Elections, and the State Coordinator of Elections.
No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n
Commission’s administrative procedures related to his residency determination violate provisions
of the Tennessee Open Meetings Act. The district court denied the TRO and Burrell appeals, also
filing the instant emergency motion. Because Burrell fails to make a persuasive showing of his
likelihood of success on the merits, lacks irreparable injury, and the public interest weighs against
granting a TRO, we deny Burrell’s emergency motion to stay and affirm the district court’s denial
of the TRO.
I.
Thomas Burrell was born and raised in Tipton County, Tennessee. He has family members
who are long-time residents of Mason, Tennessee, located in Tipton County. Burrell left Tipton
County at various points throughout his life, including to attend college and serve in the Vietnam
War. In 1989, he established a farming operation in Mason; however, Burrell was absent from
Tipton County from 1997 to 2015 for employment reasons. In 2015, Burrell returned to Atoka,
Tennessee, also in Tipton County. Burrell claims that he relocated from Akota to Mason and
reestablished residence in Mason in May 2022. On June 20, 2022, he registered to vote and filed
a timely petition for candidacy as mayor of Mason for the upcoming election on November 8,
2022.
Mason’s town charter provides: “No person shall be eligible for the office of Mayor or
Alderman unless they are a qualified voter and have been a bona fide resident of the Town for six
(6) months preceding the election.” DE 2-1, Charter of Mason, PageID 49. On August 22, 2022,
the Administrator of Elections for the Tipton County Election Commission sent Burrell a letter
stating that the Commission would be holding a meeting on August 31, 2022, to “review [his]
residency qualifications for office.” DE 2-2, Aug. 22 Letter, PageID 62. The letter reiterated the
six-month residency requirement and noted that “there is a question of whether [Burrell] reside[s]
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at the address that [he] provided to [the Commission].” Id. In the letter, Burrell was informed that
he was permitted to attend the meeting, address the Commission, and present information and
evidence related to his residency. Burrell attended the August 31 meeting with counsel. He was
given until September 9, 2022, to provide any additional evidence supporting his residency in
Mason.
It is unclear when exactly Burrell reestablished residency in Mason. Because the election
is set for November 8, 2022, Burrell must have established residency by May 8, 2022, to meet the
six-month requirement. At the Commission’s August 31 hearing, evidence was presented that
Burrell signed a residential lease in Mason on May 4, 2022, but did not begin living on the leased
property until sometime in June 2022. Burrell connected utilities to the property on May 6, 2022.
On September 9, the Commission met again and determined that Burrell had not met the
residency requirements in the charter. The Administrator of Elections sent a letter to Burrell on
September 9, 2022, confirming these findings and noting that the decision had been “made in
[Burrell’s] presence.” DE 2-3, Sept. 9 Letter, PageID 63. Burrell claims that he then sent a letter
to the Commission requesting that they not print any ballots because he had substantive concerns
about how the residency decision was made and procedural concerns about public notice for the
Commission meetings.2
Burrell filed the present case on September 20, 2022. That same day, he filed a motion for
a temporary restraining order (“TRO”). In his various filings, Burrell argued: (1) the six-month
residency requirement violated his Fourteenth Amendment right to travel; (2) the Commission’s
decision violated his First and Fourteenth Amendment right to vote; and (3) the Commission
2
Burrell claims that he attached this letter as Exhibit A to his Emergency Motion before this court,
however the referenced exhibit is a different document.
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No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n
violated provisions of the Tennessee Open Meetings Act in its conduct surrounding the residency
determination. For relief, Burrell sought an immediate order that the defendants place his name
on the November ballot, invalidation of the six-month residency requirement as unconstitutional,
and declaration of the Commission’s proceedings in the August 31 and September 9 meetings as
void for violation of the Tennessee Open Meetings Act. While the district court considered all of
these arguments, the motion for TRO focused on the § 1983 claim concerning the right to vote.
On September 26, 2022, the district court held a hearing which included “limited testimony
on the issue of Burrell’s residency as well as legal argument regarding the court’s jurisdiction.”
DE 24, Order, PageID 218. At the hearing, the Commission explained that Burrell was never
placed on the mayoral ballot due to the residency determination. The defendants also explained
relevant Tennessee State Election Commission procedures, which demand that sample ballots be
reviewed by the State Commission, approved, and then sent back to the county before printing can
begin. Additionally, ballots must be printed and mailed for military and overseas voters at least
forty-five days before an election. This means that the latest timely date for mailing of overseas
and military ballots was September 24, 2022. Review and approval of the final ballots by the State
Commission is required before that date.
On September 27, the district court denied injunctive relief. First, the district court
determined that Burrell had not demonstrated a likelihood of success on the merits of either of his
federal claims. The court held that the six-month residency requirement was likely constitutional
under Supreme Court and Sixth Circuit precedent and would survive application of the relevant
standard of review. Further, the court determined that there is no cognizable version of the right
to vote that applies to running for office or the right to vote for a specific candidate. Finding no
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No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n
legitimate federal claims, the district court declined to exercise supplemental jurisdiction over
Burrell’s state-law claims.
Next, the district court determined that the extremely low likelihood of success on the
merits of the constitutional claims allowed it to find that there was no risk of irreparable injury.
Finally, the district court found that the government and the public would suffer irreparable
harm if the TRO were issued. Ballots for the November 8, 2022, election have already been printed
and sent for overseas and military voters. The court reasoned that issuance of a TRO would require
reprinting the entire ballot and re-sending the new ballots, which could cause confusion and
potential disenfranchisement of eligible voters. Weighing all the factors, the district court found
that Burrell had not met his burden to receive a TRO and denied his motion.
Burrell timely appealed. On September 30, Burrell filed an emergency motion seeking a
stay of the district court’s order. Because early voting is set to begin on October 19, 2022,3 Burrell
seeks expedited consideration of his appeal.
On appeal, Burrell asserts that the district court applied the wrong standard to his
constitutional claims when assessing their likelihood of success on the merits. He claims that the
district court professed to apply intermediate scrutiny to his constitutional claim concerning the
right to travel, but in practice applied only rational basis review. He claims that this is reversible
error and that the district court order should be stayed because Burrell is likely to prevail on the
merits if his claims are actually reviewed under intermediate scrutiny. Burrell asks us to enjoin
the Commission “from removing Mr. Burrell as a candidate pending appeal or he will be
3
Burrell is inconsistent in his claims about which day early voting begins—sometimes writing
October 18, other times October 19. A review of the Tipton County website shows that early
voting is set to begin on October 19. https://www.tiptonco.com/news_detail_T34_R974.php.
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No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n
irreparably harmed due to the inability to campaign” in the days until early voting begins. CA6
R. 8, Emergency Mot., at 8.
II.
We review a district court’s decision regarding a preliminary injunction for abuse of
discretion. Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). Under
this standard, we review the district court’s legal conclusions de novo and its factual findings for
clear error. Id. Determination of whether the movant is likely to succeed on the merits is a question
of law and is reviewed de novo. Id. “However, the district court’s ultimate determination as to
whether the four preliminary injunction factors weigh in favor of granting or denying preliminary
injunctive relief is reviewed for abuse of discretion.” Certified Restoration Dry Cleaning Network,
L.L.C. v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007).
To determine whether a TRO should be stayed, the court considers the same factors
considered in determining whether to issue a TRO or preliminary injunction. NE Ohio Coal. for
Homeless & Serv. Emps. Int’l Union, Loc. 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).
These factors are: (1) whether the movant has a strong likelihood of success on the merits, (2)
whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay
would cause substantial harm to others, and (4) whether the public interest would be served by
granting the stay. Id. When the government is the defendant, the final two factors merge. Nken
v. Holder, 556 U.S. 418, 435 (2009). Importantly, the factors for a TRO are not a checklist, they
are “interrelated considerations that must be balanced together.” Mich. Coal. of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
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III.
We begin by reviewing de novo whether Burrell is likely to succeed on his constitutional
claims. Burrell argues that he is likely to succeed on his § 1983 claim that Mason’s six-month
residency requirement violates his Fourteenth Amendment right to travel. He states that the proper
standard for review is intermediate scrutiny. Burrell further claims that the district court purported
to apply intermediate scrutiny but in reality applied rational basis review when it determined that
the durational residency requirement was “reasonably necessary” to “accomplish legitimate state
objectives.” DE 24, Order, PageID 220-221.
Burrell confuses the proper standard of review and its application in his case. While he
seeks application of “intermediate scrutiny,” that is not the standard applied to durational residency
requirements.4 When the Supreme Court reviews barriers to candidacy for public office, it requires
such laws to be “‘closely scrutinized’ and found reasonably necessary to the accomplishment of
legitimate state objectives in order to pass constitutional muster.” Bullock v. Carter, 405 U.S. 134,
144 (1972). While Bullock focused on a Texas filing-fee requirement for candidates, this court
has applied Bullock’s standard to durational residency requirements for state or municipal office.
Beil v. City of Akron, 660 F.2d 166 (6th Cir. 1981). Beil upheld the City of Akron’s requirement
that candidates for the position of ward councilman have resided for at least one year in the ward
they seek to represent. Id. at 167, 169. Beil adopted and applied the same standard of scrutiny
from Bullock, determining that “the one year durational residency requirement of the City of Akron
is reasonably necessary to effectuate an important municipal interest.” Id. at 169. In no case has
4
We can see where the confusion arose. The district court referred to the standard it was applying
as “a type of intermediate review between ‘rational basis’ and ‘strict scrutiny.’” DE 24, Order,
PageID 220. The district court appeared to be using the term “intermediate” as a descriptive term,
not a reference to “intermediate scrutiny,” a term of art for constitutional review as used in cases
like Craig v. Boren, 429 U.S. 190 (1976).
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No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n
this court or the Supreme Court demanded that municipalities must affirmatively show that
durational residency requirements are “substantially related to an important government interest,”
as Burrell suggests. CA6 R. 8, Emergency Mot., at 7. Rather, the correct standard is whether the
requirement is reasonably necessary to effectuate an important government interest.
The district court correctly concluded that Mason’s six-month durational residency
requirement is reasonably necessary to effectuate an important municipal interest. Municipal
interests for durational residency requirements include exposing candidates to the scrutiny of the
electorate, protecting the community from outsiders not seriously committed to the community,
and having officeholders who are familiar with the problems of the community. Joseph v. City of
Birmingham, 510 F. Supp. 1319, 1336 (E.D. Mich. 1981). In both Joseph and Beil, one-year
durational residency requirements were upheld as serving these legitimate interests. The Supreme
Court has upheld even longer residency requirements for state office. Sununu v. Stark, 420 U.S.
958 (1975) (affirming a seven-year residency requirement for state senators); Chimento v. Stark,
414 U.S. 802 (1973) (affirming a seven-year residency requirement for governor). While these
offices may be more powerful than the position of town mayor, “[t]he smaller governmental unit
is equally entitled to protect its smaller self.” Beil, 660 F.2d at 168. Because the length of the
residency requirement for the mayor of Mason is proportional to the power of the position, it
satisfies the standard of being reasonably necessary to effectuate the town’s interests.5 Burrell has
not established any likelihood of success on the merits of his freedom-to-travel claim.
5
As noted by the district court, the municipality’s important interests do not have to be
affirmatively displayed in a town or city charter alongside the durational residency requirements.
In both Beil and Joseph, these municipal interests were not explicitly advanced in the charter and
in both the one-year durational residency requirements were upheld. See Beil, 660 F.2d at 167-68;
Joseph, 510 F. Supp. at 1337-38.
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Next, we review the district court’s determination that Burrell did not show a likelihood of
success on the merits of his claim that the Commission violated his right to vote by not allowing
him on ballot. At the district court, Burrell argued that he would “suffer irreparable injury to [the]
fundamental right to vote absent an injunction.” DE 2, Mot. for TRO, PageID 42. Burrell does
not specify whether he is referring to his right to run for office, his right to vote for himself, or the
rights of others to vote for him.
Burrell presents no cognizable constitutional violation of his right to vote. There is no
fundamental right to run for office, but “the rights of voters and the rights of candidates do not
lend themselves to neat separation; laws that affect candidates always have at least some
theoretical, correlative effect on voters.” Bullock, 405 U.S. at 143. Although laws creating
qualifications for candidates will always create some distant impact on available voting choices,
would-be candidates cannot reframe every ballot limitation as a voting rights infringement. The
types of candidacy laws that trigger Equal Protection include property ownership requirements,
Quinn v. Millsap, 491 U.S. 95 (1989), and excessive filing-fee requirements, Bullock, 405 U.S. at
144, because these laws threaten to discourage less wealthy candidates and give less wealthy
citizens fewer opportunities to elect candidates who represent them. However, we have held that
requirements that candidates be current on their property taxes are not cognizable violations of the
right to vote. Corrigan v. City of Newaygo, 55 F.3d 1211 (6th Cir. 1995). There is no bright line
distinction, but the relationship between the candidacy restriction and the threat to voters must be
close. Candidacy qualifications like reasonable term limits, age requirements, or durational
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residency requirements generally do not rise to the level of a constitutional claim. Burrell has
shown no likelihood of success on his right-to-vote claim.6
IV.
We turn to the second preliminary injunction factor, where we agree with the district court
that Burrell has not shown irreparable injury. Burrell asserts that he will be irreparably injured if
he is denied the opportunity to campaign. However, Burrell’s injuries all stem from his claimed
constitutional violations. Denial of an injunction can be the basis for irreparable harm if
constitutional rights are at stake, but when the plaintiff has not presented a cognizable
constitutional claim, the plaintiff is not entitled to a presumption of irreparable harm. Overstreet
v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). Beyond the alleged
constitutional violations, Burrell has presented no independent physical, financial, reputational, or
other injuries that would result from the denial of his candidacy.
V.
Finally, the public interest and the interests of the defendants would be harmed by a stay
of the district court’s order. In his emergency motion, Burrell mentions public interest only in
passing, and his arguments before the district court were a continuation of his claims concerning
irreparable injury to his right to vote. However, the Commission has explained the logistical
hurdles that an injunction for Burrell would present. We must respect the vital role that state and
6
Burrell raises several state-law claims under the Tennessee Open Meetings Act in his complaint
and emergency motion. However, it would be inappropriate for us to review these claims. First,
the district court properly declined to exercise supplemental jurisdiction over Burrell’s state-law
claims in light of his failed federal claims. Second, although Burrell’s emergency motion dedicates
much argument to the Commission’s alleged violations of the Tennessee Open Meetings Act, there
is no indication that the proper recourse for lack of public notice would be an injunction ordering
the Commission to change the contents of their already-printed ballots. This is an issue that has
not been fully briefed or even raised. We therefore decline to review Burrell’s state-law claims.
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No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n
local governments play in administering elections and developing their own laws to make that
possible. “A State indisputably has a compelling interest in preserving the integrity of its election
process.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Ballots for the forthcoming election, which
includes the Mason mayoral race, have already been printed and shipped overseas. Issuing new
ballots could disrupt the integrity of the voting process and potentially lead to confusion and
disenfranchisement of these overseas and military voters who might be confused by receiving a
second ballot, might have already submitted the first ballot before receiving the second, and likely
would not receive their new ballots in time to cast a timely vote. Additionally, as the district court
notes, there could be threats to the integrity of the election process if Burrell were to be placed on
the ballot and then later determined to be ineligible. The public interest weighs heavily against
injunctive relief for Burrell.
VI.
As Burrell satisfies none of the factors we consider when issuing temporary injunctive
relief, we decline to stay the district court’s order and affirm.
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