83 F.4th 575
6th Cir.2023Background
- Tennessee law (Tenn. Code Ann. § 2-6-202(c)(3)) makes it a Class E felony for anyone other than an election-commission employee to give the state’s official absentee-ballot application form to another person; the official form is available online.
- Plaintiffs (five civic/labor organizations and an individual) run get-out-the-vote programs and allege distributing the official form during outreach materially increases absentee-voter participation; they challenged the statute under the First Amendment (speech and expressive-association claims).
- District court dismissed the complaint; plaintiffs appealed to the Sixth Circuit seeking strict scrutiny or Anderson-Burdick review.
- Sixth Circuit majority (Murphy, J.) held distribution of the official form is conduct (not core speech), declined to apply Meyer/exacting or Anderson-Burdick, applied at most the O’Brien expressive-conduct test, and concluded the statute survives; dissent (White, J.) would apply exacting scrutiny and would allow further factual development.
- Central state interest the majority relied on: preventing voter confusion and administrative burdens that could follow mass distribution of official applications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether distributing the official absentee-application is protected 'core' First Amendment speech triggering exacting/strict scrutiny | Distributing the form during GOTV is inherently expressive and intertwined with core political speech (Meyer analog) | The act of handing out a government form is conduct, not speech; statute is content-neutral and doesn't restrict plaintiffs' oral/written advocacy | Distribution is conduct, not core speech; exacting/strict scrutiny does not apply |
| Whether Anderson-Burdick balancing governs | All election-law challenges should be evaluated under Anderson-Burdick | Anderson-Burdick applies to ballot access, voting-rights, or associational ballot issues, not a pure speech claim about distributing a government form | Anderson-Burdick does not extend to this pure speech/expressive-conduct claim |
| If expressive conduct is implicated, which test applies and does statute survive | If the act is expressive, Meyer/Buckley-level scrutiny or Anderson-Burdick should apply; statute is not narrowly tailored | At most O'Brien applies (conduct regulation unrelated to suppressing ideas); Tennessee has a substantial interest in avoiding voter confusion and the ban reasonably furthers it | O'Brien expressive-conduct framework applies and statute survives that lenient review |
| Whether the statute violates freedom of expressive association | The ban impedes groups' ability to organize, educate, and assist members in absentee voting, substantially burdening association | The law is neutral, does not compel or exclude membership, and does not meaningfully impede groups' ability to associate or speak | Associational claim fails: plaintiffs did not plausibly allege a significant burden on expressive association |
Key Cases Cited
- Meyer v. Grant, 486 U.S. 414 (1988) (applied exacting/strict scrutiny to a ban on paid petition circulators because circulation is core political speech)
- United States v. O'Brien, 391 U.S. 367 (1968) (test for when conduct with an expressive element may be regulated: government must have constitutional power, substantial interest, and a fit no greater than essential)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (framework balancing burdens on voters' rights against state interests in election-law challenges)
- Burdick v. Takushi, 504 U.S. 428 (1992) (applied Anderson balancing to determine level of scrutiny for burdens on voting/association in elections)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (distinguishes regulation of conduct from regulation of speech and discusses limits of expressive-conduct protection)
- Texas v. Johnson, 491 U.S. 397 (1989) (content-based conduct regulation—flag burning—triggers strict scrutiny)
- McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (heightened protection for pamphlet distribution and anonymous political literature)
- Pap's A.M. v. City of Erie, 529 U.S. 277 (2000) (plurality applying O'Brien to uphold public-nudity regulation affecting expressive conduct)