Lead Opinion
OPINION
I. Facts and Procedural History
On May 30, 2011, the Governor signed into law the Tennessee Voter Identification Act (the “Act”), which modified the requirement for Tennessee voters to supply “evidence of identification” in order to cast an election ballot. Tenn.Code Ann. § 2-7-112(a)(1)(B) (Supp.2012). The Act, which took effect on January 1, 2012, required photographic identification (“photo ID”) in one of the following forms: (1) a Tennessee driver’s license; (2) “a valid identification card issued by a branch, department, agency or entity of the State of Tennessee, any other state, or the United States authorized by law to issue personal identification,” excluding any identification card issued to a student by an institution of higher learning; (3) an identification card issued pursuant to Tennessee Code Annotated section 55-50-336;
As part of an effort to inform the public about the photo ID requirement, the Tennessee Department of State, Division of Elections (the “Division of Elections”) provided notice by letter to every registered voter in possession of a non-photo ID card, encouraging those individuals to contact the Division of Elections for a determination of whether they had a compliant identification card and, if not, how to obtain one. On January 18, 2012, the Memphis City Attorney issued an opinion to City of Memphis Mayor A C Wharton, Jr., advising that the City of Memphis Public Library (the “Library”) qualified as an “entity of the state” under Tennessee Code Annotated section 2-7-112(c)(2)(A), and that a photo ID card issued by the Library would serve as valid evidence of identification for voting purposes. After discussing the issue, the Library’s administration decided to offer photo ID cards to its patrons.
On July 5, 2012, Mayor Wharton held a press conference to announce that the Library would offer photo ID cards that could be used in the upcoming August primary election. On the following day, the State Coordinator of Elections, Mark Goins, sent an email to the Shelby County Election Commission (the “Election Commission”) expressing the view that the Library was not an entity of the state and that its photo ID cards were not valid evidence of identification. At a press conference four days later, Mr. Goins confirmed that the photo ID cards issued by the Library did not qualify as an acceptable form of identification under the Act.
On separate occasions in July of 2012, Robert White, the Chief of Staff for Mayor Wharton, accompanied Shelby County residents Daphne Turner-Golden and Sullis-
On July 24, 2012, the City of Memphis, Ms. Turner-Golden, and Ms. Bell
The state and federal primary election was held as scheduled in August of 2012. Approximately 700,000 Tennesseans voted in the primary, and approximately 132,000 of those voters were residents of Shelby County. Thirty-two Shelby County residents who were deemed to have invalid photo ID cards cast provisional ballots, and four of those voters ultimately complied with the Election Commission’s instructions to return with a valid photo ID card by the August 6, 2012 deadline. Of the remaining twenty-eight provisional voters, twenty had a Tennessee driver’s license but chose not to report to the Election Commission by the deadline. Five more were eligible to cast an absentee ballot but chose not to do so.
The Plaintiffs voluntarily dismissed their federal suit following the primary and on August 31, 2012, filed a complaint in Davidson County Chancery Court, asserting claims against Mr. Goins, Secretary of State Hargett, and Tennessee Attorney General Robert Cooper, Jr. (collectively, the “Defendants”). The Plaintiffs sought injunctive relief, alleging that obtaining a photo ID before the November general election was too burdensome for Ms. Turner-Golden and Ms. Bell. At the conclusion of a hearing held in September of 2012, the
Following an expedited briefing schedule and oral argument, the Court of Appeals affirmed in part and reversed in part, holding that the Plaintiffs had standing; that the Act met the facial constitutional standard; and that the photo ID cards issued by the Library qualified as valid proof of voter identification. City of Memphis v. Hargett, No. M2012-02141-COA-R3-CV,
This Court granted the Defendants’ application for permission to appeal on November 1, 2012. Although the filing of an application under Tennessee Rule of Appellate Procedure 11 ordinarily stays issuance of the mandate of the Court of Appeals, Tenn. R.App. P. 42(b), this Court lifted the stay for the limited purpose of requiring the Election Commission to accept photo ID cards issued by the Library for the November 6, 2012 general election.
Following briefing and oral argument, the General Assembly amended the Act, effective April 23, 2013, in several respects. Tennessee Code Annotated section 2-7-112(c)(2)(A), which had permitted any photo ID “issued by a branch, department, or entity of this state, any other state, or the United States,” was amended to allow only photo ID cards “issued by the state of Tennessee[] or the United States.” See Act of Apr. 23, 2013, ch. 178, § 1, available at http://state.tn.us/sos/acts/108/pub/pc 0178.pdf. Similarly, section 2-7-112(c)(5), which had permitted any photo ID card issued to an employee “by a branch, department, agency or entity of this state, any other state, or the United States,” was amended to allow only employee photo ID cards “issued by the state of Tennessee[ ] or the United States.” Id. § 2. Finally, a new section provided that “[a]n identification card issued by a county or municipality or entity thereof, including a public library, containing a photograph shall not be evidence of identification for purposes of verifying the person’s identification on the application for ballot.” Id. § 3 (to be codified at Tenn.Code Ann. § 2—7—112(g)). On April 24, 2013, this Court ordered supplemental briefing to address the effect of the amendments on the justiciability of each issue in this appeal.
II. Analysis
The original briefs present the following issues: (1) whether the Plaintiffs have standing to challenge the constitutionality and construction of the Act; (2) whether the doctrine of sovereign immunity bars the Plaintiffs from pursuing a declaratory judgment concerning the construction of the Act; (3) whether photo ID cards is
A. Justiciability
This Court must first consider questions pertaining to justiciability before proceeding to the merits of any remaining claims. See UT Med. Grp., Inc. v. Vogt,
1. Mootness
To be justiciable, an issue must be cognizable not only at the inception of the litigation but also throughout its pen-dency. Norma Faye Pyles Lynch Family Purpose LLC,
In this instance, the Plaintiffs and the Defendants agree that the 2013 amendments to the Act rendered moot the issues of whether sovereign immunity bars the Plaintiffs’ declaratory judgment suit against officers of the state,
2. Standing
The Defendants contend that the constitutional issues are also non-justiciable because the Plaintiffs lack standing to challenge the validity of the Act. While acknowledging that municipalities generally have the right to bring a declaratory judgment action, the Defendants argue that the City of Memphis has failed to show that it has any cognizable interest in the right to vote — a right that belongs to individual citizens rather than municipalities. As to the individuals’ claims, the Defendants concede that Ms. Turner-Golden and Ms. Bell have alleged injuries pertaining to the August 2012 primary, but argue that because they have failed to establish the likelihood of future injury, their injuries cannot be redressed. The Defendants further contend that the absentee voting procedure in this state and the availability of free photo ID cards preclude the individual Plaintiffs from demonstrating any injury resulting from the photo ID requirement.
Courts use the doctrine of standing to determine whether a litigant is entitled to pursue judicial relief as to a particular issue or cause of action. ACLU of Tenn. v. Darnell,
To establish constitutional standing, a plaintiff must satisfy “three ‘indispensable’ elements.” Darnell,
The application of these principles establishes that the individual Plaintiffs have standing to challenge the constitutionality of the Act. The City of Memphis, however, does not. The constitutional issues presented by the Plaintiffs are all premised upon injuries resulting from infringements of the right to vote, which is protected under both the state and federal constitutions. Tenn. Const. art. IV, § 1 (providing that “every person” who meets certain specified qualifications “shall be entitled to vote in all federal, state, and local elections held in
The individual Plaintiffs have met the first, or “injury,” element of standing by asserting multiple infringements of their right of suffrage, including claims that the photo ID requirement established by the Act unlawfully burdens their ability to cast an in-person ballot, impermissibly adds a voting qualification to those enumerated in our constitution, and violates their right to equal protection by imposing different requirements for in-person and absentee voters. These claimed injuries are palpable, as opposed to conjectural or hypothetical, because they are founded upon the undisputed allegations that Ms. Turner-Golden and Ms. Bell attempted to cast in-person ballots in the August 2012 primary election but were unable to do so because they did not possess photo ID cards recognized by election officials as valid evidence of identification under the Act. Ms. Turner-Golden and Ms. Bell have likewise met the requirement of asserting a distinct injury by alleging that they were personally prevented from having their votes counted, as opposed to merely relying upon their status as citizens who may eventually seek to exercise their right to vote. As to the second element, Ms. Turner-Golden and Ms. Bell have alleged facts that demonstrate a fairly traceable causal connection between their claimed injuries and the challenged conduct. Specifically, they maintain that the Defendants’ enforcement of the Act precluded them from voting without presenting one of the forms of photo ID recognized as valid under the Act, which in turn caused the various asserted infringements of their constitutional right to vote. Ms. Turner-Golden and Ms. Bell have likewise met the third element of standing because a declaratory judgment in their favor on any of their constitutional claims would render the photo ID requirement unenforceable, thereby allowing them to exercise their right to vote free of its constraints.
The Defendants’ arguments that the individual Plaintiffs lack standing are without merit. The assertion that Ms. Turner-Golden and Ms. Bell could have procured a valid photo ID card free of charge or avoided the photo ID requirement by casting an absentee ballot does not negate their claimed injuries, which are predicated upon their entitlement to vote in person, free of the photo ID requirement. Addressing a virtually identical standing issue, the United States Court of Appeals for the Eleventh Circuit ruled as follows:
*100 Even if [the plaintiffs] possessed an acceptable form of photo identification, they would still have standing to challenge the statute that required them to produce photo identification to cast an in-person ballot. A plaintiff need not have the franchise wholly denied to suffer injury. Any concrete, particularized, non-hypothetical injury to a legally protected interest is sufficient. Requiring a registered voter either to produce photo identification to vote in person or to cast an absentee or provisional ballot is an injury sufficient for standing.
Common Cause/Ga. v. Billups,
We likewise reject the Defendants’ argument that Ms. Turner-Golden and Ms. Bell lack standing because their injuries relate only to their experience in past elections. The Defendants rely upon City of Los Angeles v. Lyons, in which the United States Supreme Court held that a plaintiffs standing to seek equitable relief “depended on whether he was likely to suffer future injury from the [challenged conduct].”
Unlike the individual Plaintiffs, the City of Memphis lacks standing to contest the constitutionality of the Act. The Declaratory Judgment Act, Tenn. Code Ann. §§ 29-14-101 to -113 (2012), authorizes municipalities, such as the City of Memphis, to seek a judicial determination of the validity of a statute, see id. §§ 29-14-101, -103 (2012) (providing in pertinent part that any “person” may seek a declaratory judgment regarding the validity of a statute and defining “person” to include municipalities). Nevertheless, in order to demonstrate standing to seek a declaratory judgment, a political subdivision of the state, including a municipality, “is limited to asserting rights that are its own,” meaning that it cannot merely “assert the collective individual rights of its residents.”
B. Constitutionality
The individual Plaintiffs
1. Undue Burden
The Plaintiffs argue that the Act creates an undue burden on their right to vote in violation of article I, section 5 of the Tennessee Constitution, which provides, in its entirety, that “[t]he elections shall be free and equal, and the right of suffrage, as hereinafter declared, shall never be denied to any person entitled thereto, except upon conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction.” The right of suffrage is expounded upon in article IV, section 1, which provides in pertinent part as follows:
Every person, being eighteen years of age, being a citizen of the United States, being a resident of the State for a period of time as prescribed by the General Assembly, and being duly registered in the county of residence for a period of time prior to the day of any election as prescribed by the General Assembly, shall be entitled to vote in all federal, state, and local elections held in the county or district in which such person resides. All such requirements shall be equal and uniform across the state, and there shall be no other qualification attached to the right of suffrage.
The General Assembly shall have power to enact laws requiring voters to vote in the election precincts in which they may reside, and laws to secure the freedom of elections and the purity of the ballot box.
Before addressing the merits of the Plaintiffs’ claims under these provisions, we must first determine the applicable standard of review.
This Court has not previously addressed the standard of review applicable to claims arising under article I, section 5 of the Tennessee Constitution. The Court of Appeals determined that laws burdening the right to vote “must be subjected to strict scrutiny.” Hargett,
To satisfy strict scrutiny, the Defendants must demonstrate that any burden on the right to vote is justified by a compelling state interest. Bemis Pentecostal Church,
b. Facial Challenge
The Plaintiffs first assert that pursuant to article I, section 5, the photo ID requirement is facially unconstitutional, meaning “‘that no set of circumstances exist[s] under which the Act would be valid.’ ” Davis-Kidd Booksellers, Inc. v. McWherter,
This Court has previously recognized the compelling nature of the state’s interest in the integrity of the election process. In Bemis Pentecostal Church, for example, this Court concluded in the context of a First Amendment challenge that “[t]he authority of the Tennessee Legislature to control the conduct of elections held in this State is manifest.”
We find this argument unpersuasive. A number of courts, including the United States Supreme Court, have rejected the notion that a state must present evidence that it has been afflicted by voter fraud in order to enact laws pursuant to its authority to protect the integrity of the election process. Munro v. Socialist Workers Party,
The holding in Hawk, the decision relied upon by the Plaintiffs, is based upon the principle that, absent a showing of danger or harm to the child, our state constitution does not authorize state interference with parental rights.
We further find that the means adopted by the state — i.e., the photo ID requirement — is narrowly tailored to achieve the state’s interest in the integrity of the election process. As recognized by our Court of Appeals, a photo ID require
While the Plaintiffs do not directly dispute the relationship between the photo ID requirement and the state interest, they do contend that the photo ID requirement would not prevent fraudulent voters from avoiding the photo ID requirement in light of Tennessee Code Annotated section 2-7-112(f), which provides an exemption from the photo ID requirement for voters who are indigent or who object to being photographed on religious grounds upon submission of an affidavit attesting to the voter’s identity and the basis for the exemption. This contention misapprehends the nature of our strict scrutiny analysis. The Defendants are not required to show that the photo ID requirement will eradicate voter fraud. Even without an exception for indigent voters and religious objectors, any measure aimed at securing the integrity of the election process will inevitably prove less than perfect. The General Assembly’s decision to impose an affidavit requirement instead of a photo ID requirement in the case of voters with exceptional circumstances does not, in our assessment, undermine the conclusion that the photo ID requirement imposed by the Act is narrowly tailored to serve the state’s interest in securing the integrity of the election process.
In addition, we conclude that the photo ID requirement is not an impermissibly intrusive method for the state to achieve its interest in preventing voter fraud. Addressing the degree to which the state may burden the citizens’ right to vote in furtherance of its authority to regulate elections, this Court noted over a century ago that our “constitution surrounded the right of suffrage with some inconveniences, and authorized the legislature to attach more. In the exercise of its power, the legislature must be reasonable and just; not imposing impossible or oppressive conditions, else its legislation will be void.” Cook v. State,
In our view, our Court of Appeals properly concluded that the degree of intrusion on the right to vote caused by the photo ID requirement is not constitutionally intolerable. It is undisputed that a significant percentage of qualified Tennessee voters already possessed a valid photo ID card at the time the new requirement took effect. Furthermore, various Tennessee election statutes contain measures that mitigate the impact of the photo ID requirement. For example, registered voters who need a photo ID card to vote are entitled to obtain one for free, TenmCode Ann. § 55—50—336(g)(1), and indigent voters may vote without photo ID by submitting an affidavit attesting to their indigen-cy and identity, id. § 2—7—112(f). Also, citizens who qualify to cast an absentee ballot may do so without complying with the photo ID requirement, which allows many of the potential voters who would otherwise suffer the greatest impact to avoid the requirement altogether, including persons who are sixty years of age or
Notwithstanding these allowances, the Plaintiffs contend that the photo ID requirement excessively burdens their right to vote because in order to obtain a free photo ID card, a voter must expend the time and money needed to appear at one of the forty-eight “Driver Service Centers” that issue such cards and must provide identification that meets specified criteria, such as a United States passport or birth certificate, both of which entail a fee. See Tenn. Dep’t of Safety & Homeland Sec., Voter Photo ID, TN.gov, http://www.tn. gov/safety/photoids.shtml (last visited Sept. 16, 2018). Relying upon Weinschenk v. State,
Although similar in many respects, Tennessee’s photo ID requirement differs from the Missouri law in an important way. Unlike the Missouri law, which provided no relief for voters lacking the funds needed to obtain a valid photo ID card, see id. at 206, this state’s Act contains an exception for any in-person voter who “is indigent and unable to obtain proof of identification without payment of a fee,” Tenn.Code Ann. § 2—V—112(f). By its plain language, this provision exempts from the photo ID requirement any voter unable to pay the fees needed to obtain valid evidence of identification, including any fee associated with the documentation necessary to obtain a “free” photo ID card pursuant to section 55-50-336(g)(1). Because of this provision, we cannot endorse the Plaintiffs’ characterization of the photo ID requirement as a poll tax.
As for the remaining burdens alleged by the Plaintiffs, such as the time and expense of making a trip to a Driver Service Center to obtain a photo ID, we hold that the General Assembly’s compelling interest in protecting the ballot box against the risk of voter fraud justifies the imposition of such inconveniences. See Tenn. Const. art IV, § 1; Cook,
As an alternative to their facial challenge, the Plaintiffs assert an “as-applied” challenge to the Act, arguing that even if the photo ID requirement is constitutional in general, its application to their particular circumstances creates an impermissible burden on their right to vote. See 16 C.J.S. Constitutional Law § 187, at 274 (2005) (“An ‘as applied’ challenge to the constitutionality of a statute is evaluated considering how it operates in practice against the particular litigant and under the facts of the instant case, not hypothetical facts in other situations.” (footnote omitted)).
Initially, we note that the trial court found that the Plaintiffs’ complaint failed to assert an as-applied challenge to the constitutionality of the Act, and the Court of Appeals neither acknowledged the Plaintiffs’ as-applied challenge nor explicitly found it waived. The Defendants contend that the trial court’s conclusion was proper and that the Plaintiffs have thus waived their right to raise an as-applied challenge. See In re Estate of Smallman,
Ms. Turner-Golden contends that the Act is unconstitutional as applied to her because “getting an acceptable photo ID would have required taking hours out of her day, while also balancing her career education program and caring for the two young grandchildren over whom she has custody, one of whom has special needs.” She asserts that when she obtained a photo ID card in January of 2012, she made a two-and-a-half-hour trip to a Shelby County Driver Service Center to obtain the photo ID card and made a separate trip to obtain a copy of her birth certificate, for which she paid a fee. She further contends that fifty-three of the ninety-five counties in Tennessee are without an office that issues free photo ID cards. Ms. Turner-Golden concedes, however, that Shelby County, where she resides, has four such offices.
Ms. Bell, also a Shelby County resident, is in her seventies, and, while she no longer drives a ear, she has a Tennessee driver’s license that does not include her photograph. As in the case of Ms. Turner-Golden, Ms. Bell asserts that significant time and travel would be involved in acquiring identification compliant with the Act. It is undisputed, however, that because of her age, Ms. Bell may vote without photo ID by casting an absentee ballot.
As the Defendants point out, neither Ms. Turner-Golden nor Ms. Bell claim that they lacked the financial means necessary to obtain a photo ID card. Even if they lacked sufficient funds to obtain a photo ID card or the documentation necessary to obtain a free photo ID card, either could
In our view, the Plaintiffs have failed to establish that the burdens of time and travel are sufficient to sustain an as-applied challenge to the constitutionality of the Act. While these difficulties arising from the Plaintiffs’ individual circumstances make casting a vote less convenient for them, such inconveniences, without more, are insufficient to elevate the photo ID requirement to the level of an impermissibly burdensome condition on the right to vote. See Cook,
2. Additional Qualification
The Plaintiffs next argue that the photo ID requirement constitutes an unlawful qualification on the right to vote. As indicated, article IV, section 1 of the Tennessee Constitution enumerates several voting qualifications: one must be at least eighteen years of age, a United States citizen, a Tennessee resident for a period of time as prescribed by the General Assembly, and registered to vote in the county of residence for a period of time prescribed by the General Assembly. These qualifications constitute the exclusive criteria for the right to vote: “there shall be no other qualification attached to the right of suffrage.” Tenn. Const. art. IV, § 1. Article IV, section 1, however, also explicitly authorizes the General Assembly to enact laws “to secure the freedom of elections and the purity of the ballot box.” The Plaintiffs attempt to portray the photo ID requirement as an additional qualification attached to the right of suffrage, whereas the Defendants maintain that the provision is a proper exercise of the General Assembly’s constitutional authority.
Initially, the legislative power to secure the purity of the ballot box does not authorize the General Assembly to unduly burden the right of suffrage or to impose qualifications beyond those enumerated in article IV, section 1. See Mills v. Shelby Cnty. Election Comm’n,
Over one hundred years ago, an individual who was charged with casting an illegal vote for having failed to register contended that the statutory registration requirement constituted an improper voting qualification. State v. Weaver,
Courts from other jurisdictions have specifically refused to classify photo ID requirements as an additional voting qualification. The Indiana Supreme Court, for example, concluded that a statutory photo ID requirement did not run afoul of a state constitutional requirement prohibiting the addition of voting qualifications. League of Women Voters of Ind., Inc. v. Rokita,
requirement that an in-person voter present a government-issued [photo ID] card ... is merely regulatory in nature. The voter qualifications established in [the state constitution] relate to citizenship, age, and residency. Requiring qualified voters to present a specified form of identification ... functions merely as an election regulation to verify the voter’s identity.
Id. The Georgia Supreme Court recently rejected a claim virtually identical to the circumstances here, holding that the state’s photo ID requirement did not violate the state constitutional prohibition against additional voting qualifications because it fell within the legislature’s “wide ‘latitude in determining how the qualifications required by the [constitution may be determined.’ ” Democratic Party of Ga., Inc. v. Perdue,
Based upon the holdings of this Court and other jurisdictions, we conclude that the photo ID requirement imposed by the Act cannot be fairly characterized as an additional voting qualification. Instead, the photo ID requirement is more properly classified as a regulation pertaining to an existing voting qualification. As with the registration requirements at issue in Weaver and Trotter, the photo ID requirement is “merely a mode of ascertaining ... whether or not a [person] possesses the necessary qualifications of a voter.” Trotter,
3. Equal Protection
The Plaintiffs’ final contention is that the Act violates their right to equal protection under article XI, section 8 of the Tennessee Constitution because it requires a photo ID for in-person voting but not for absentee voting. Article XI, section 8, commonly known as the class legislation clause, provides that
[t]he Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie[s] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.
This Court has consistently held that the class legislation clause confers upon individuals the same protections as the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Lynch v. City of Jellico,
The threshold inquiry is whether the classes of persons at issue are similarly situated; if not, then there is no basis for finding a violation of the right to equal protection. Posey v. City of Memphis,
In this instance, the Court of Appeals held that the classes at issue — in-person voters and absentee voters — are not similarly situated. We agree. The Plaintiffs rely primarily upon two cases in their equal protection argument: Hilliard v. Park,
The practical differences between in-person and absentee voters with respect to identity verification further serve to demonstrate their lack of similarity. See Loesel,
There are essential differences between in-person and absentee voters. The Plaintiffs, therefore, have failed to establish that these two classes of voters are so similarly situated that they are entitled to equal protection of the law with respect to the issue of identity verification.
III. Conclusion
In summary, the 2013 amendments to the Act rendered moot all issues pertaining to the validity of the photo ID cards issued by the Library. As for the remaining claims, the individual Plaintiffs, but not the City of Memphis, have demonstrated standing to challenge the constitutionality of the Act. Although the Plaintiffs’ constitutional claims qualify as justiciable, we find no basis for invalidating the Act on constitutional grounds. The judgment of the Court of Appeals is, therefore, affirmed. Costs are taxed to the City of Memphis, Daphne Turner-Golden, and Sullistine Bell, for which execution may issue if necessary.
Notes
. Section 55-50-336 (2012) authorizes the issuance of photo ID cards that are valid for identification purposes only. The cost of obtaining or renewing a photo ID card is ordi
. Retired state employee identification cards were not included in the original version of the Act but were added in a later amendment. See Act of May 10, 2012, ch. 938, § 2, 2012-3 Tenn.Code Ann. Adv. Legis. Serv. 78, 78 (LexisNexis).
. The federal suit was originally filed by the City of Memphis and Ms. Turner-Golden. On July 30, 2012, Ms. Bell joined the suit as a plaintiff.
. Ms. Bell was one of the voters eligible to cast an absentee ballot. She was eligible because she was sixty years of age or older. See Tenn.Code Ann. § 2-6-201(5)(A).
. In addition, prior to oral argument, the Plaintiffs filed a motion for consideration of post-judgment facts pursuant to Tennessee Rule of Appellate Procedure 14. We have denied that motion by separate order.
. None of the issues raised by the parties in this appeal relate to the issue addressed by the decision of the United States Supreme Court filed on June 17, 2013, in Arizona v. Inter Tribal Council of Arizona, Inc., - U.S. -,
. The Defendants originally argued that the doctrine of sovereign immunity prohibits the Plaintiffs from seeking a judicial determination that the City of Memphis or the Library qualify as entities of the state that are authorized to issue photo ID cards under the Act. The trial court did not address whether sovereign immunity barred the Plaintiffs from seeking relief. The Court of Appeals noted that the doctrine does not preclude a challenge to the constitutionality of a statute, but did not
. Ordinarily, issues of non-constitutional standing are not essential to subject matter jurisdiction and are waived if not properly preserved. See In re Estate of Smallman,
. In Baker, the mayor of Nashville and the cities of Knoxville and Chattanooga had intervened as plaintiffs, but the United States Supreme Court declined to address whether those parties had standing in view of the fact that their claims were identical to the claims of the individual plaintiffs.
. In this regard, political subdivisions are distinguishable from private organizations. Private organizations have standing to bring suit based on the rights of their members as long as the members would have standing to sue in their own right, the interests at issue are germane to the purpose of the organization, and neither the claim asserted nor the relief requested requires the participation of individual members. Darnell,
. Having determined that the City of Memphis lacks standing to challenge the constitutionality of the Act, we will hereinafter refer to the individual Plaintiffs simply as "the Plaintiffs.”
. Because we have decided, for the reasons set out below, that the Act withstands strict scrutiny review, it is apparent that the Act would also satisfy the less demanding federal standard. The concurrence suggests that the standard of review for claims under article I, section 5 should be decided now; however, courts routinely assume, rather than decide, that strict scrutiny applies when the parties have not adequately addressed which standard of review should apply and when the level of scrutiny is not determinative as to the issues presented. See, e.g., Alaska Right to Life Comm. v. Miles,
. After July 1, 2017, the age requirement for absentee voting eligibility will increase from sixty to sixty-five. Id. § 2-6-201(5)(A).
. At the time Weaver was decided, registration was not one of the constitutionally enumerated voting qualifications. Id.
Concurrence Opinion
filed a concurring opinion.
In 2011, the Tennessee General Assembly amended Tennessee’s voting procedures to provide for the use of photographic identification in elections.
I.
Throughout this litigation, the plaintiffs have insisted that the courts should employ the equal protection “strict scrutiny” standard of review to analyze the constitutionality of the photographic identification requirements in Tenn.Code Ann. § 2-7-112. The State has acquiesced in this standard. Based on this “concession,” the Court has decided that it “will assume, rather than decide, that strict scrutiny applies.” Because other challenges to Tennessee’s voting procedures will surely arise in the future, the question of the proper standard of review should be settled now.
The standards of review are “the metaphorical hinges on the door to the realm of appellate review.”
Standards of review have been an integral part of American jurisprudence since the earliest days of our country.
The question of the application of the proper standard of review is a question of law. Warehime v. Warehime,
Parties cannot choose or control the standard or standards of review applicable to their case. United States v. Vontsteen,
Although Tenn. R.App. P. 27(a)(7)(B) envisions that the parties will identify for the appellate court 'the standard or standards of review they propose to apply to the issues being presented, a party’s failure to propose a standard of review or to propose the correct standard of review does not prevent the appellate court from applying the correct standard of review. Accordingly, it is the appellate court’s “duty ... to plainly identify the appropriate standard of review and then to clearly employ that standard when reviewing the prior decision.” Stevens v. Employer-Teamsters Joint Council No. 81 Pension Fund,
II.
If the plaintiffs were asserting their rights under the United States Constitution, the choice of the correct standard of review would have been simple because the United States Supreme Court has already authoritatively identified it. In a recent case involving the use of photographic identification in state elections, the Court held, based on the facts of the case, that the challenged photographic identification requirement does not “impose[ ] ‘excessively burdensome requirements’ on any class of voters.” Crawford v. Marion Cnty. Election Bd.,
Sensing the futility of a challenge to Tenn.Code Ann. § 2-7-112 based on the
There can be little debate that the right to vote protected by Article I, Section 5 is a fundamental right. May v. Carlton,
In 1869, this Court held that “[t]he duty of the Legislature is, to protect both the public interest and the private right in the franchise, and for this purpose, it may provide reasonable regulations for the exercise of the right ... and adopt precautions against frauds and violence.” State v. Staten,
Article I, Section 5 and Article IV, Section 1 should be read together. Earnest v. Greene Cnty.,
may employ every legislative means, however vigorous, to accomplish the ends contemplated by the framers of the Constitutions. The Legislatures are, as a rule, the judges of the means13 to be adopted, and their necessity. The power to regulate and reform is theirs. They are presumed to know the condition and wants of the State.
Cook v. State,
In 1891, this Court, striking what it believed to be the proper balance between Article I, Section 5 and Article IV, Section 1, articulated a standard for reviewing constitutional challenges to statutes regulating the manner in which elections are conducted. The case involved a challenge to a statute requiring voters to mark their ballot to signify the candidate for whom they had voted. The Court stated:
The Constitution surrounded the right of suffrage with some inconveniences, and authorized the Legislature to attach more. In the exercise of its power, the Legislature must be reasonable and just, not imposing impossible or oppressive conditions, else its legislation will be void.
Cook v. State,
The standard of review contained in Cook v. State has remained unaltered for over one hundred twenty years. During this time, the power of the General Assembly to secure the “purity of the ballot box” has not been diminished, and the right to vote is neither more nor less fundamental today than it was in 1891. Accordingly, in the absence of argument from either party regarding the replacement of the Cook standard with another standard, I would review the constitutionality of the 2011 and 2012 amendments to Tenn.Code Ann. § 2-7-112 using the “impossible or oppressive conditions” standard in Cook v. State. Based on my review of the record, I would find that the plaintiffs have failed to present evidence demonstrating that requiring the use of photographic identification in the voting process in the manner authorized by Tenn.Code Ann. § 2-7-112 amounts to an impossible or oppressive condition on the ability of an otherwise qualified voter to cast his or her vote in elections conducted in Tennessee.
. Act of May 20, 2011, ch. 323, 2011 Tenn. Pub. Acts 790 (codified at Tenn.Code Ann. § 2-7-112 (Supp.2011)); Act of May 21, 2011, ch. 386, 2011 Tenn. Pub. Acts 960 (codified at Tenn.Code Ann. § 2-7-112 (Supp. 2011)).
. Act of Feb. 23, 2012, ch. 575, 2012 Tenn. Pub. Acts 364 (codified in part at Tenn.Code Ann. § 2-7-112 (Supp.2012)); Act of Apr. 23, 2012, ch. 938, § 2, 2012 Tenn. Pub. Acts 1395, 1395 (codified at Tenn.Code Ann. § 2-7-112 (Supp.2012)).
. Act of Apr. 4, 2013, ch. 178, 2013 Tenn. Pub. Acts -, (codified at Tenn.Code Ann. § 2-7-112 (Supp.2013)); Act of Apr. 1, 2013, ch. 231, § 9, 2013 Tenn. Pub. Acts-,(codified at Tenn.Code Ann. § 2-7-112 (Supp. 2013)).
. Todd J. Bruno, Say What? ? Confusion in the Courts over V/hat Is the Proper Standard of Review for Hearsay Rulings, 18 Suffolk J. Trial & App. Advoc. 1, 6 (2013) ("Bruno”).
. See also Bruno, 18 Suffolk J. Trial & App. Advoc. at 6 (stating that standards of review are "more often than not, outcome-determinative”); 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 1.02, at 1-16 (4th ed.2010) ("Childress & Davis”) (pointing out that "the proper standard of review ... often turns out to be a vital issue on appeal”); Amanda Peters, The Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark L.Rev. 233, 241 (2009) (quoting Michael D. Zimmerman’s observation that "[sjtandards of review doom any number of appeals from the start”); Barry Sullivan, Standards of Review, in Appellate Advocacy 59, 59 (Peter J. Carre et al., eds., 1981) (noting that "a thoughtful consideration of the appropriate standard of review will often determine the outcome of an appeal”).
. Timothy P. O’Neill, Standards of Review in Illinois Criminal Cases: Tire Need for Major Reform, 17 S. Ill. U. L.J. 51, 51 (1992). Major B. Harding, the former Chief Justice of the Florida Supreme Court, has observed that "[ajfter determining jurisdiction, the next important issue to be resolved in an appellate matter is the standard of review. Making this determination at the outset helps in guiding attorneys and judges in the appropriate resolution of the case.” Raymond T. Elligett, Jr. & John M. Scheb, Appellate Standards of Review — How Important Are They?, Fla. B.J., Feb. 1996, at 33.
. Martha S. Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J.App. Proc. & Process 47, 47 (2000).
. Richard H.W. Maloy, "Standards of Review” — Just a Tip of the Icicle, 77 U. Det. Mercy L.Rev. 603, 609 (2000) ("Maloy”).
. The Michigan Supreme Court has noted that "[ajbsent a comprehensible standard of review, judicial review cannot be undertaken in pursuit of the rule of law, but only in pursuit of the personal preferences of individual judges.” Warda v. City Council of the City of Flushing,
. See also Capshaw v. Gulf Ins. Co.,
. See also Maloy, 77 U. Det. Mercy L.Rev. at 610.
. This case does not present an occasion to analyze the standard of review used by the United States Supreme Court in Crawford. However, a more detailed analysis can be found in 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 18.31(a) (5th ed.2013) ("Rotunda & No-wak”); see also 3 Rotunda & Nowak § 18.3(a) (5th ed.2012).
. The Tennessee Reporter uses the word "means,” but the Southwestern Reporter uses the word "measures.”