489 F.Supp.3d 742
M.D. Tenn.2020Background
- Plaintiffs (four organizations and an individual) seek a preliminary injunction against enforcement of Tenn. Code Ann. § 2-6-202(c)(3), which makes it a Class E felony for anyone other than election commission employees to give an application for an absentee ballot to another person.
- Plaintiffs contend the statute chills their First Amendment speech and association activities because it forbids distributing blank absentee-ballot applications as part of voter outreach during the COVID-19 pandemic.
- Defendants include the Tennessee Secretary of State, Coordinator of Elections, and the Shelby County District Attorney; plaintiffs seek to enjoin enforcement by the DA and referrals/participation by state officials.
- The court reviewed related procedural history in a different but overlapping case (No. 3:20-cv-00374) addressing a neighboring statutory subsection and observed earlier confusion about whether a particular form was an application or a request for an application.
- The court treated the motion as seeking extraordinary preliminary relief and applied the four-factor preliminary injunction test, focusing primarily on likelihood of success on the merits (First Amendment issue).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the distribution of absentee-ballot applications is "expressive conduct" protected by the First Amendment | Distribution is part of core political speech and protected; Meyer-Buckley strict/exacting scrutiny applies | Distribution is non‑expressive conduct (or at most marginal); rational-basis or lesser review applies | Court held distribution is not inherently expressive of core political speech and thus not within Meyer-Buckley strict scrutiny (likely non‑expressive) |
| If the statute implicates the First Amendment, which doctrinal framework applies (Meyer‑Buckley strict scrutiny vs. Anderson‑Burdick sliding-scale)? | Meyer‑Buckley applies (exacting/strict scrutiny) because activity relates to election participation | Anderson‑Burdick or rational-basis applies; even under Meyer‑Buckley the statute is not necessarily subject to strict scrutiny, but if so it survives | Court concluded Meyer‑Buckley inapplicable because activity is not core political speech; Anderson‑Burdick could apply but would yield only rational‑basis (or rational‑basis plus) review |
| Whether the statute survives rational‑basis or Anderson‑Burdick review given state interests | Plaintiffs argue statute is overbroad, unnecessary in the internet era, and unduly burdens outreach | State asserts important interests in preventing voter confusion and protecting election integrity; the statute plausibly furthers those interests | Court found a plausible (rational) relationship between the prohibition and the State's interests; statute survives rational‑basis (and rational‑basis plus) review |
| Whether laches bars plaintiffs' motion for preliminary injunction | Plaintiffs: any delay was inadvertent and not prejudicial | Defendants: plaintiffs delayed bringing the correct challenge and timing prejudices defendants | Court declined to apply laches: even if delay existed, defendants failed to show the requisite prejudice |
Key Cases Cited
- Meyer v. Grant, 486 U.S. 414 (1988) (petition-circulation precedent on protection of core political speech and application of exacting/strict scrutiny)
- Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) (discusses Meyer and exacting scrutiny in election-related contexts)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (framework for balancing burdens on voting‑related speech against state interests)
- Burdick v. Takushi, 504 U.S. 428 (1992) (Anderson‑Burdick sliding‑scale approach for election‑law challenges)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (treats certain political speech as entitled to highest protection)
- Crawford v. Marion County Election Board, 553 U.S. 181 (2008) (upholds election regulations aimed at preventing fraud even with limited empirical proof)
- Feldman v. Arizona Secretary of State’s Office, 840 F.3d 1057 (9th Cir. 2016) (holding ballot collection is facilitative conduct, not inherently expressive)
- Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) (discusses limits of First Amendment protection for registration/collection activities)
- Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014) (interprets exacting scrutiny and election‑law analysis under Meyer and Anderson frameworks)