EARLE J. FISHER, ET AL. v. TRE HARGETT, ET AL.
No. M2020-00831-SC-RDM-CV
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
August 5, 2020
July 30, 2020 Session; Appeal by Permission from the Chancery Court for Davidson County No. 20-0435-III, Ellen Hobbs Lyle, Chancellor
BENJAMIN LAY, ET AL. v. MARK GOINS, ET AL.
No. M2020-00832-SC-RDM-CV
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
August 5, 2020
July 30, 2020 Session; Appeal by Permission from the Chancery Court for Davidson County No. 20-0453-III Ellen Hobbs Lyle, Chancellor
We assumed jurisdiction over these appeals1 pursuant to
With respect to those plaintiffs and persons who do not have special vulnerability to COVID-19 or who are not caretakers for persons with special vulnerability to COVID-19, we hold that the trial court erred in issuing the temporary injunction. Accordingly, we vacate the temporary injunction. Recognizing that absentee ballots already have been cast for the August 6, 2020 election consistent with the trial court‘s temporary injunction, and mindful of the goal of avoiding alterations to election rules on the eve of an election, the absentee ballots of all Tennessee registered voters who timely requested and submitted an absentee ballot by mail for the August 6, 2020 election pursuant to the trial court‘s temporary injunction and which absentee ballots otherwise meet the requirements of the absentee voting statutes shall be duly counted. These cases are remanded to the trial court for further proceedings consistent with this opinion.
This opinion is not subject to rehearing under
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Janet M. Kleinfelter, Deputy Attorney General; and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for the appellants, Mark Goins, Tre Hargett, William Lee, and Herbert H. Slatery III, each in his official capacity for the State of Tennessee.
Steven J. Mulroy, Jacob W. Brown, and Bruce S. Kramer, Memphis, Tennessee, for the appellees, Reverend Earle J. Fisher, Julia Hiltonsmith, Jeff Bullard, Allison Donald, and #UptheVote901.
Thomas H. Castelli, Nashville, Tennessee, Elizabeth Sitgreaves, Brentwood, Tennessee, Angela M. Liu, Chicago, Illinois, Dale E. Ho, Sophia Lin Lakin, Neil A. Steiner, New York, New York, and Gregory P. Luib and Tharuni A. Jayaraman, Washington, D.C. for the appellees, Benjamin William Lay, Carole Joy Greenawalt, and Sophia Luangrath.
William S. Consovoy, Cameron T. Norris, and Jordan M. Call, Arlington, Virginia, for the amicus curiae, Honest Elections Project.
Brian K. Kelsey, Chicago, Illinois and Sue L. Becker, Indianapolis, Indiana, for the amicus curiae, The Public Interest Legal Foundation.
Jason B. Torchinsky, Dennis W. Polio, Jonathan P. Lienhard, Warrenton, Virginia, and Justin N. Joy, Memphis, Tennessee, for the amicus curiae, The Republican National Committee and Tennessee Republican Party.
Danielle M. Lang, Ravi R. Doshi, Dana Paikowsky, Pooja Chaudhuri, Ezra D. Rosenberg, Washington, D.C. and William L. Harbison, Lisa K. Helton, Christopher C. Sabis, Christina R.B. López, Nashville, Tennessee, for the amici curiae, League of Women Voters of Tennessee, Tennessee State Conference of the NAACP, Memphis Central Labor Council, Memphis A. Philip Randolph Institute, The Equity Alliance, and Free Hearts.
Stephen J. Zralek, Nashville, Tennessee, and Debo P. Adegbile, New York, New York, for the amici curiae, David M. Aronoff, M.D., Nina Fefferman, Ph. D., James E.K. Hildreth, Sr., Ph. D., M.D., William Schaffner, M.D., Thomas Talbot, M.D., M. P.H, Edwin Trevathan, M.D., M.P.H., C. William Wester, M.D., M.P.H., Doctors and Professors Specializing in Epidemiology and Infectious Diseases.
OPINION
I. Factual and Procedural History
The State of Tennessee, like the entirety of the United States, is in the midst of an unprecedented public health crisis due to COVID-19. The Tennessee Attorney General recently described the situation faced by the State and the country:
The United States is in a public health crisis due to COVID-19. On January 31, 2020, the United States Department of Health and Human Services determined that, as of January 27, 2020, COVID-19 constituted a nationwide public health emergency. On March 11, 2020, the World Health Organization classified COVID-19 as a global pandemic. The pandemic remains ongoing and is currently surging.
Symptoms of COVID-19 can include fever, cough, shortness of breath, fatigue, loss of the senses of taste and smell, and body aches, among others. And the health effects of the disease can be severe, including serious damage to the lungs and other internal organs, and death. People with certain underlying health conditions and older adults have a heightened vulnerability to severe illness and death if they contract the virus.
As of July 16, 2020, at least 3,416,428 people in the United States have been infected with the virus and over 135,991 people have died from the disease that it causes. In Tennessee, there have been 68,441 confirmed cases, 3,434 hospitalizations, and 755 deaths since the first case was reported by the Tennessee Department of Health on March 5, 2020.2
COVID-19 is particularly dangerous not only because it results in severe illness, but also because it is easily and rapidly transmitted. The disease is believed to be transmitted through respiratory droplets produced by an infected person, close personal contact, or touching a surface with the virus on it. The virus spreads very easily through “community spread.” While infected individuals are thought to be the most contagious when they are showing symptoms, asymptomatic individuals are also capable of spreading the virus, which makes response efforts particularly daunting.
Because there is currently no vaccine, cure, or proven effective treatment for COVID-19, the best way to prevent illness is to avoid being exposed to the virus. The Centers for Disease Control and Prevention (“CDC“) recommends frequent hand washing, maintaining good social distance (at least [six] feet), routinely cleaning and disinfecting frequently touched surfaces, and covering mouth and nose with a cloth face covering when around others.
Op. Tenn. Att‘y Gen. No. 20-14 at **1–2 (July 24, 2020) (internal citations and footnotes omitted). In his most recent executive order related to the COVID-19 pandemic, defendant Governor William Lee similarly recognized the continuing “threat to our citizens, our healthcare systems, and our economy” posed by COVID-19. 2019 Tenn. Exec. Order No. 55 at 1 (July 31, 2020).
In response to the COVID-19 pandemic, the Governor declared a state of emergency on March 12, 2020. As recently as July 31, 2020, the Governor declared that the state of emergency remains in effect. Id. The Governor additionally has continued to issue executive orders “designed to slow the spread of the disease and to protect the health of Tennessee residents.” Op. Tenn. Att‘y Gen. No. 20–14 at *2 (July 24, 2020) (footnote omitted).
In response to the COVID-19 pandemic, defendant Coordinator of Elections Mark Goins oversaw the Tennessee Division of Elections’ preparation and issuance of the April 23, 2020 Tennessee Election COVID-19 Contingency Plan (the “Plan“). The Plan contains numerous COVID-19 related measures delineating procedures for in-person voting for the August and November 2020 elections. The Plan anticipates an increase in those voters who choose to vote absentee by mail pursuant to Tennessee‘s absentee
Relevant to this appeal, the statutory qualifying reasons for voting absentee by mail include the following:
A registered voter in any of the following circumstances may vote absentee by mail in the procedures outlined in this part:
…
(5) Persons Over 60--Persons Hospitalized, Ill or Disabled. . . .
(C) The person is hospitalized, ill or physically disabled, and because of such condition, the person is unable to appear at the person‘s polling place on election day; or
(D) The person is a caretaker of a hospitalized, ill or disabled person
On May 8, 2020, plaintiffs Reverend Earle J. Fisher, Julia Hiltonsmith, Jeff Bullard,4 Allison Donald, and #UptheVote9015 filed a complaint seeking injunctive and
The Fisher plaintiffs sought declaratory and injunctive relief to expand access to vote-by-mail procedures to all registered Tennessee voters who wish to vote absentee during the COVID-19 pandemic. They contended that, in the midst of the COVID-19 pandemic, restricting Tennesseans’ vote-by-mail access to voters over sixty years of age, or who otherwise meet one of the other absentee ballot eligibility criteria in Tennessee
The Fisher plaintiffs requested that the court declare that:
(a) . . . every registered voter in Tennessee shall be eligible, upon request, to vote absentee in the August 2020 and November 2020 elections;
(b) . . . any registered Tennessee voter attempting to vote absentee in the August 2020 or November 2020 election, or both, shall be considered “otherwise eligible to vote absentee” for purposes of the voter‘s attestation on any voter‘s affidavit form contemplated by
Tenn[essee] Code Ann[otated section] 2-6-309(b) ;(c) . . . because of [COVID-19]‘s threat to individual and public safety, requiring the individual [p]laintiffs and similarly situated others to vote in person for the August 2020 and November 2020 elections would impose an impermissibly burdensome condition on these individuals’ voting rights, in violation [sic] the Tennessee Constitution;
(d) . . . because of [COVID-19]‘s threat to individual and public safety, requiring these individual [p]laintiffs and similarly situated others to vote in person for the August 2020 and November 2020 elections would
constitute an improper classification burdening the fundamental right to vote under that Constitution; or in the alternative, (e) . . . in the midst of the COVID-19 pandemic, Tennessee law allows a Tennessee-licensed physician to validly certify to a county election commission that all voters in that county are medically unable to vote in person due to the pandemic . . .
They further requested temporary and permanent injunctive relief prohibiting election administrators across the State from:
(a) [d]enying any written or in-person absentee ballot request for the August 2020 or November 2020 election on the basis of the applicant‘s not meeting one or more of the conditions enumerated in
Tenn[essee] Code Ann[otated section] 2-6-201 ;(b) [u]nduly delaying the review, processing, or both of any absentee-ballot request made or purporting to be made by, or lawfully on behalf of, a registered Tennessee voter;
(c) [r]ejecting any absentee ballot cast in the August 2020 or November 2020 election cycles on the basis of the voter‘s not meeting one or more of the conditions enumerated under
Tenn[essee] Code Ann[otated section] 2-6-201 ; [and](d) [f]ailing to timely process any absentee ballot timely received by the deadlines provided under Tennessee Law.
By order filed May 12, 2020, the trial court set the Fisher plaintiffs’ request for a temporary injunction for hearing on May 28, 2020, without oral testimony pursuant to Davidson County Local Rule 19.04.
On May 15, 2020, plaintiffs, Benjamin William Lay, Carole Joy Greenawalt,7 and Sophia Luangrath, filed a complaint seeking injunctive and declaratory relief against defendants, Mark Goins, Tre Hargett, and William Lee, each in his official capacity for
The Lay plaintiffs alleged that Mr. Lay is a cancer survivor who suffers from a compromised immune system and that his wife, Carole Joy Greenawalt, also is immunosuppressed. The Lay plaintiffs further alleged that “Mr. Lay has been self-quarantining at home with his wife and has been practicing the social distancing measures prescribed by the CDC.” The Lay plaintiffs alleged that Mr. Lay is registered to vote in Tennessee and has previously voted in elections in Tennessee. “Due to his wife‘s immunocompromised status and his cancer history, however, he cannot vote safely in person during the COVID-19 pandemic.” The Lay plaintiffs alleged that the State‘s construction of the statutory eligibility requirements prevents Mr. Lay from voting absentee by mail. The Lay plaintiffs alleged that Ms. Luangrath is a twenty-one-year-old resident of Rutherford County, Tennessee, that she voted in the 2018 midterm election, and that the State‘s construction of the statutory eligibility requirements prevents Ms. Luangrath from voting absentee by mail.
The Lay plaintiffs alleged that the State had construed the statutory eligibility requirements for absentee voting by mail to mean that fear of contracting the coronavirus does not constitute illness and, therefore, does not meet the criteria to vote absentee ballot by mail in Tennessee. Instead, the Lay plaintiffs alleged that the State had construed the statute to mean that only individuals who have quarantined because of a potential exposure to COVID-19 or who have tested positive for COVID-19 are permitted to vote absentee by mail as a person who is ill. The Lay plaintiffs alleged that this construction is “plainly unreasonable.” The Lay plaintiffs further alleged that the State‘s construction and enforcement of the statutory eligibility requirements for absentee voting by mail “severely burdens the fundamental right to vote of all eligible voters who are practicing [s]ocial [d]istancing [m]easures and/or are self-quarantining to prevent exposure to COVID-19,” that this construction “will likely disenfranchise tens of thousands of Tennesseans,” and that this construction will “deny the fundamental right to vote guaranteed by the Tennessee Constitution.” The Lay plaintiffs asserted violations of the fundamental right to vote under
The Lay plaintiffs asked the court to declare that the State‘s construction and enforcement of the statutory eligibility requirements for absentee voting by mail as stated in
to prevent:
- any eligible voter, regardless of age and physical condition;
- any eligible voter who lives with an individual who is at a higher risk of complications should they contract COVID-19; and/or
- any eligible voter who is at a higher risk of complications should they contract COVID-19
to request, receive, and have counted an absentee ballot by mail at least for the 2020 election calendar and until the State‘s ongoing “state of emergency” is lifted and the CDC no longer advises individuals to engage in any of its recommended [s]ocial [d]istancing [m]easures . . .
On May 22, 2020, the Lay plaintiffs filed a motion for a temporary injunction pursuant to
On June 4, 2020, following the hearing, the trial court filed its “Memorandum and Order Granting Temporary Injunction to Allow Any Tennessee Registered Voter to Apply for a Ballot to Vote by Mail Due to COVID-19.” The trial court characterized the issue before it as “whether, in this time of the pandemic, the States’ [sic] construction and application of Tennessee law constitutes an unreasonable and discriminatory burden on the fundamental right to vote vigorously guaranteed by the Tennessee Constitution.” The court characterized the relief sought by the plaintiffs on their motion for a temporary injunction as “seek[ing] for the Court to enjoin the States’ [sic] restrictive application of the law and for a mandate that the State must provide the Plaintiffs access to voting by mail.” The trial court then summarized its holding as follows:
After studying the evidence and the law, and considering argument of [c]ounsel, the [c]ourt finds that the evidence does not support the State‘s
claims that it is impossible for it to provide expanded access to voting by mail. Respectfully, the evidence is that the assumptions the State has employed in its fiscal and resource calculations are oddly skewed and not in accordance with the methodology of its own expert and industry standards. When, however, normal industry-recognized assumptions are used, the evidence establishes that the resources are there to provide temporary expanded access to voting by mail in Tennessee during the pandemic if the State provides the leadership and motivation as other states have done. As to voter fraud, the State‘s own expert debunks and rejects that as a reason for not expanding access to voting by mail. From this evidence and upon using the legal standard of Anderson-Burdick, the Court concludes that the State‘s restrictive interpretation and application of Tennessee‘s voting by mail law (
Tennessee Code Annotated section 2-6-201 ), during the unique circumstances of the pandemic, constitutes an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution. Accordingly[,] the Plaintiffs are entitled to issuance of a temporary injunction.
(Footnote omitted). The trial court granted the plaintiffs’ motion for a temporary injunction and ordered as follows:
[T]he Plaintiffs’ motion for a temporary injunction is granted to the extent that, until further order of the [c]ourt, the Defendants are enjoined from:
— enforcing their current construction of the “excuse requirement” for absentee voting stated in
Tennessee Code Annotated section 2-6-201(5)(C) and(D) , andare mandated to:
— provide any eligible Tennessee voter, who applies to vote by mail in order to avoid transmission or contraction of COVID-19, an absentee ballot in upcoming elections during the pendency of pandemic circumstances; and
— implement the construction and application of
Tennessee Code Annotated section 2-6-201(5)(C) and(D) that any qualified voter who determines it is impossible or unreasonable to vote in person at a polling place due to the COVID-19 situation shall be eligible to check the box on the absentee ballot application that, “the person is hospitalized, ill or physically disabled and becauseof such condition, the person is unable to appear at the person‘s polling place on election day; or the person is a caretaker of a hospitalized, ill or physically disabled person,” and have that absentee voting request duly processed by the State in accordance with Tennessee law. In addition[,] it is ORDERED that the Defendants are mandated to:
— prominently post on their websites and disseminate to County Election Officials that voters who do not wish to vote in-person due to the COVID-19 virus situation are eligible to request an absentee ballot by mail or that such voters still have the option to vote in-person during Early voting or on Election Day.
Not ordered herein is a requirement that the State must automatically mail absentee ballots to all Tennessee registered voters, a practice being implemented in some states before and in response to the pandemic.
(Footnotes omitted). As the trial court explained:
[t]he difference is that the injunction issued above keeps in place and tracks the requirement of Tennessee law that to obtain a mail-in ballot, a voter must first apply for one so that it is only voters who apply to vote by mail that the State must print and mail absentee ballots to as the applications come in.
On June 5, 2020, the State filed a motion for an interlocutory appeal pursuant to
On June 12, 2020, the State filed in the Court of Appeals an application for permission to appeal pursuant to
Also on June 12, 2020, the State filed in this Court a motion to assume jurisdiction of the appeal pursuant to
II. Analysis
A. Scope of Review
This is an interlocutory appeal. The Court‘s review is limited to those questions clearly within the scope of the issue certified for interlocutory appeal. Funk v. Scripps Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019). As noted, the trial court and the State broadly stated the issue as the propriety of the trial court‘s entry of the temporary injunction. In their reply brief, the State restated the issue more narrowly: “The only question before this Court is whether the Tennessee Constitution requires the State to allow all Tennessee voters to vote by mail in the August and November elections.”
The parties acknowledge, however, that there are two distinct categories of plaintiffs and persons within the scope of the trial court‘s temporary injunction: 1) persons with special vulnerability to COVID-19 and persons who are caretakers for persons with special vulnerability to COVID-19; and 2) persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19. At oral argument before this Court, the State agreed that persons in the first category are eligible to vote absentee by mail under the provisions of
B. Plaintiffs and Persons with Special Vulnerability to COVID-19
As noted, the State has agreed that those plaintiffs and persons with special vulnerability to COVID-19 or who are caretakers of persons with special vulnerability to COVID 19 are eligible to vote absentee by mail pursuant to the statutory eligibility
C. Plaintiffs and Persons without Special Vulnerability to COVID-19
1. Temporary Injunction and Standard of Review
The interlocutory appeal in this case is from the trial court‘s grant of a temporary injunction.
[a] temporary injunction may be granted during the pendency of an action if it is clearly shown by verified complaint, affidavit or other evidence that the movant‘s rights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury, loss or damage
pending a final judgment in the action, or that the acts or omissions of the adverse party will tend to render such final judgment ineffectual.
In these cases, the temporary injunction sought and ordered was mandatory, as opposed to prohibitory. A mandatory injunction is one which alters the status quo and orders the defendant to take action to remedy the alleged wrong. See Lawrence A. Pivnick, 2 Tenn. Cir. Ct. Prac. § 31:2 (Dec. 2019 update). This Court has long recognized the extraordinary nature of mandatory injunctions and has cautioned that this relief should be granted only in exceptional circumstances. Cole v. Dych, 535 S.W.2d 315, 322 (Tenn. 1976); King v. Elrod, 268 S.W.2d 103, 106 (Tenn. 1954).
The trial court‘s decision to grant the plaintiffs’ request for a temporary injunction is discretionary and is reviewed under an abuse of discretion standard. Gentry v. McCain, 329 S.W.3d 786, 793 (Tenn. Ct. App. 2010), perm. app. denied (Tenn. Oct. 18, 2010); Hughes v. Tenn. Dep‘t of Corr., No. M2016-02212-COA-R3-CV, 2017 WL 4125378, at *2 (Tenn. Ct. App. Sept. 18, 2017); Curb Records, Inc. v. McGraw, No. M2011-02762-COA-R3-CV, 2012 WL 4377817, at *3 (Tenn. Ct. App. Sept. 25, 2012), perm. app. denied (Tenn. Feb. 12, 2013). “A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305–06 (Tenn. 2020) (citations omitted).
Whether the trial court applied an incorrect legal standard is a question of law and is reviewed de novo with no presumption of correctness. Funk, 570 S.W.3d at 211 (citing Wallace v. Metro. Gov‘t of Nashville, 546 S.W.3d 47, 52 (Tenn. 2018)). Questions of fact normally are reviewed de novo but with a presumption of correctness unless the
2. Likelihood of Success on the Merits
a. Standard of Review
Whether a plaintiff is likely to succeed on the merits for purposes of a temporary injunction is a question of law and is reviewed de novo. See Obama for America, 697 F.3d at 428. The underlying claim as to which the Court must determine the likelihood of success on the merits is the constitutionality of the State‘s construction and application of
b. Standing
As part of its argument to the trial court on the temporary injunction factor of likelihood of success on the merits, the State raised a challenge to the plaintiffs’ standing. This argument was also included in the State‘s initial brief in its Rule 9 application to the Court of Appeals. It is not entirely clear from the State‘s supplemental brief and supplemental reply brief filed in this Court whether it continues to assert a challenge to plaintiffs’ standing. We nonetheless preliminarily address standing.
The question of standing is one that ordinarily precedes a consideration of the merits of a claim. City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013). “The proper focus of a determination of standing is a party‘s right to bring a cause of action, and the likelihood of success on the merits does not factor into such an inquiry.” Id. at 97 (citing ACLU of Tenn. v. Darnell, 195 S.W.3d 612, 620 (Tenn. 2006)); Wood v. Metro. Nashville & Davidson Cnty. Gov‘t, 196 S.W.3d 152, 158 (Tenn. Ct. App. 2005)
The State challenged the plaintiffs’ constitutional standing. Constitutional standing is a fundamental requirement of a justiciable controversy. Id. at 98. To establish constitutional standing, a plaintiff must satisfy three elements: 1) a distinct and palpable injury; that is, an injury that is not conjectural, hypothetical, or predicated upon an interest that a litigant shares in common with the general public; 2) a causal connection between the alleged injury and the challenged conduct; and 3) the injury must be capable of being redressed by a favorable decision of the court. Id. (citing Darnell, 195 S.W.3d at 620). As this Court has explained these three elements:
First, a party must show an injury that is “distinct and palpable“; injuries that are conjectural, hypothetical, or predicated upon an interest that a litigant shares in common with the general citizenry are insufficient in this regard. Second, a party must demonstrate a causal connection between the alleged injury and the challenged conduct. While the causation element is not onerous, it does require a showing that the injury to a plaintiff is “fairly traceable” to the conduct of the adverse party. The third and final element is that the injury must be capable of being redressed by a favorable decision of the court.
Id. (citations omitted). In this appeal, the proper focus of the standing inquiry is on the asserted infringement to the right to vote and the alleged facts regarding that asserted infringement and resulting injury to the plaintiffs. See id. at 99-100. We find that the plaintiffs have asserted a sufficient infringement and have alleged sufficient facts regarding an injury to establish constitutional standing. As in City of Memphis, it appears here too that the State‘s arguments actually “pertain to the merits of the claim of undue burden, rather than the issue of standing.” Id. at 100 (citing Darnell, 195 S.W.3d at 620).
c. Nature of Constitutional Challenge and Burden
A constitutional challenge to a statute may be either facial or as-applied. In a facial challenge, the plaintiff contends that there are no circumstances under which the statute, as written, may be found valid. City of Memphis, 414 S.W.3d at 103 (citing
Initially, it appeared that the parties disputed whether the plaintiffs’ challenge to the constitutionality of
The hybrid nature of the plaintiffs’ constitutional challenge, however, does impact the burden placed upon them to establish their claim and, concomitantly, their likelihood of success on the merits of that claim. To the extent that the plaintiffs’ claims extend beyond their circumstances, they must satisfy the standards for a facial challenge. Green Party of Tenn., 791 F.3d at 692 (quoting John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010)).
This Court recently reiterated the general burden faced by a plaintiff mounting a constitutional challenge to a statute:
“In evaluating the constitutionality of a statute, we begin with the presumption that an act of the General Assembly is constitutional.” “[I]n reviewing [a] statute for a possible constitutional infirmity, we are required to indulge every presumption and resolve every doubt in favor of the constitutionality of the statute.”
“The Court must uphold the constitutionality of a statute wherever possible[.]” “[T]he Court must be controlled by the fact that our Legislature may enact any law which our Constitution does not prohibit, and the Courts of this State cannot strike down one of its statutes unless it clearly appears that such statute does contravene some provision of the Constitution.”
Willeford v. Klepper, 597 S.W.3d 454, 465 (Tenn. 2020) (citations omitted). That burden is even greater when the challenge is facial. Waters, 291 S.W.3d at 882 (citing Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003)). A facial challenge to a statute is “‘the most difficult challenge to mount successfully since the challenger must establish that no set of circumstances exist under which the Act would be valid.‘” Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006) (citations omitted). Plaintiffs asserting a facial challenge, therefore, undertake an especially heavy legal burden. Id.
d. Analytical Framework for Constitutional Review
The plaintiffs contend that the State‘s construction and application of the statutory criteria for absentee voting by mail under
Tenn. Const., art. 1, § 5 § 5. Elections and suffrage
The 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.
Tenn. Const., art. 4, § 1 § 1. Qualifications; precincts; military duty
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.
This Court has not definitively determined the appropriate analytical framework by which to evaluate claims alleging violations of the Tennessee constitutional right to vote. In City of Memphis, we acknowledged this open question:
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.” While the Plaintiffs challenge the Court of Appeals’ analysis of their claims, they maintain that strict scrutiny is the proper standard of review. The Defendants agree, conceding that “the Court of Appeals correctly applied the strict scrutiny standard of review.” Notably, however, the United States Supreme Court has rejected the notion that strict scrutiny applies to every statute imposing a burden on the right to vote under the United States Constitution. Instead, addressing claims arising under the First and Fourteenth Amendments, the Court has adopted a “more flexible standard,” pursuant to which a showing of important governmental regulatory interests may justify lesser restrictions on the right to vote, whereas strict scrutiny is reserved for laws that impose “‘severe’ restrictions.” Thus, there is a potential question as to whether this Court should adopt a more stringent standard for voting rights challenges under article I, section 5 than is applied under the United States Constitution.
414 S.W.3d at 102 (citations omitted). Because the parties in City of Memphis had agreed that strict scrutiny review applied, however, we left for another day the determination of the appropriate analytical framework. Id.
Here, in contrast to City of Memphis, the plaintiffs and the State disagree as to the appropriate standard, with the plaintiffs urging strict scrutiny review and the State urging rational basis review.
Under the strict scrutiny standard urged by the plaintiffs, the State “must demonstrate that any burden on the right to vote is justified by a compelling state interest.” City of Memphis, 414 S.W.3d at 102 (citation omitted). The State must further
In contrast, under the rational basis standard of review urged by the State, a statute will survive a constitutional challenge if any reasonably conceivable state of facts could provide a rational basis for its application of the statute. See Armour v. City of Indianapolis, 566 U.S. 673, 681 (2012).
The trial court resolved this dispute about the appropriate standard of review for evaluating the plaintiffs’ constitutional claim by employing the so-called Anderson-Burdick analytical framework.11
The Sixth Circuit Court of Appeals recently described the Anderson-Burdick framework in the context of a voting rights case arising as a result of the COVID-19 pandemic:
Under Anderson-Burdick, we first look to the burden the State‘s regulation imposes on the right to vote. When States impose “‘reasonable nondiscriminatory restrictions‘” on the right to vote, courts apply rational basis review and “‘the State‘s important regulatory interests are generally sufficient to justify’ the restrictions.” But when States impose severe restrictions on the right to vote, such as poll taxes or limiting access to the ballot, strict scrutiny applies. It is when cases fall between these two extremes that the Anderson-Burdick framework departs from the traditional tiers of scrutiny and creates its own test.
For these intermediate cases, where the burden on the right to vote is moderate, we must 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.‘” Only where the State‘s interests
outweigh the burden on the plaintiff‘s right to vote do voting restrictions not offend the Equal Protection Clause. While this standard is flexible, we must ultimately “make the ‘hard judgment’ that our adversary system demands.”
Mays v. LaRose, 951 F.3d 775, 784 (6th Cir. 2020) (citations omitted); see also Thompson v. DeWine, 959 F.3d 804, 808-09 (6th Cir. 2020); Obama for America, 697 F.3d at 429-30.
While the plaintiffs still suggest that the Court could undertake in these cases to decide the question left open in City of Memphis, they also acknowledge that we need not do so.12 We agree. At this juncture, in an interlocutory appeal from the trial court‘s entry of a temporary injunction, we will assume without deciding that the Anderson-Burdick analytical framework applies to the plaintiffs’ claims.
e. Application of the Anderson-Burdick Framework
(1) Burden on Plaintiffs
Perhaps not surprisingly, the parties do not agree on the appropriate level of constitutional review based on the application of the Anderson-Burdick analytical framework. The plaintiffs appear to accept that the intermediate level of review applied by the trial court may well be appropriate. The State, however, contends that under the Anderson-Burdick framework, only rational basis review is warranted.13 We disagree with the State on this point.
In order to determine the appropriate standard of constitutional review under the Anderson-Burdick framework, we first must determine the extent of the burden on the right to vote. The State‘s contention that only rational basis review is appropriate is founded on its view that the plaintiffs’ constitutional challenge addresses only the “privilege” to vote absentee and not the fundamental right to vote.
The State correctly points out, however, that the right to vote in any particular manner is not absolute. See Burdick v. Takushi, 504 U.S. 428, 433 (1992); Mays, 951 F.3d at 783. The Tennessee Constitution also expressly grants the Legislature the authority to promulgate laws to “secure the freedom of elections and the purity of the ballot box.”
The State also places great reliance on the decision of the United States Supreme Court in McDonald v. Bd. of Election Comm‘rs of Chicago, 394 U.S. 802, 807 (1969). In McDonald, the Court addressed a federal constitutional challenge to Illinois’ absentee voting statute. In determining that the appropriate level of constitutional review was rational basis review, the Court concluded as follows:
[T]here is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants’ claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise.
The State‘s reliance on this Court‘s prior characterization and on McDonald, however, is misplaced. Characterizing absentee voting by mail as a “privilege” begs the question of whether, under some circumstances, limitations on this lawful method of voting can amount to a burden on the right to vote itself. The answer to that question must be yes. If it were not, even when the right to vote is unavailable through any other means, deprivation of absentee voting by mail would nevertheless be deemed not to burden the fundamental right to vote itself.
We find support for this view in a recent decision of the United States District Court for South Carolina. In Thomas v. Andino, No. 3:20-cv-01552-JMC & No. 3:20-cv-01730-JMC, 2020 WL 2617329 (D. S.C. May 25, 2020), the plaintiffs challenged certain South Carolina absentee ballot voting laws as violating the fundamental right to vote under the First and Fourteenth Amendments to the United States Constitution due to the COVID-19 pandemic. Among the laws the plaintiffs challenged, and as to which they sought preliminary injunctive relief “due to alleged vulnerabilities to COVID-19,” was that setting forth witness requirements. Id. at *1.15 The court applied the Anderson-Burdick analytical framework in determining the appropriate level of constitutional review for purposes of evaluating the plaintiffs’ likelihood of success on the merits. Id. at *17. In so doing, the Thomas court was confronted with the same contention which the State makes in this case; namely, that the plaintiffs’ constitutional challenge applied only to a privilege and not a protected right and so was not entitled to constitutional review. Id. (footnote omitted). The court rejected this contention:
Inherent in the rule is that the challenge only applies to protected rights. Thomas/Middleton Plaintiffs and Defendants vigorously debate whether absentee voting is a right or a privilege.
Defendants are correct that under South Carolina law, absentee voting is a “privilege,” not a right to vote itself. However, while this court agrees that the right to an absentee ballot is not guaranteed by the First Amendment, that does not mean that absentee voting is per se unprotected under the First Amendment.
Id. at **17–18 (footnote omitted) (citations omitted). The court went on to find that the “privilege” to vote absentee “so intimately [a]ffects the fundamental right to vote” as to require the court to determine that the plaintiffs’ challenge is to be examined under a “normative constitutional rights framework.” Id. at *18; see also Obama for America, 697 F.3d at 430-31 (rejecting the state‘s reliance on McDonald and noting that “Plaintiffs did not need to show that they were legally prohibited from voting, but only that ‘burdened voters have few alternative means of access to the ballot‘” (citation omitted)); Mays, 951 F.3d at 783 (“So while States can regulate elections, they must be careful not to unduly burden the right to vote when doing so.“). In this time of an unprecedented pandemic, we agree with this analysis and also will use normative constitutional analysis to evaluate the plaintiffs’ constitutional challenge to statutes limiting access to absentee voting by mail.
The category of plaintiffs at issue consists of persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19. Even with no special vulnerability to COVID-19, it is understandable that some voters in this category may wish to vote by mail. As emphasized by the State in the recent Tennessee Attorney General‘s Opinion, “the health effects of the disease can be severe, including serious damage to the lungs and other internal organs, and death” and because “there is currently no vaccine, cure, or proven effective treatment for COVID-19, the best way to prevent illness is to avoid being exposed to the virus.” Op. Tenn. Att‘y Gen. No. 20-14 at **2–3 (July 24, 2020) (footnotes omitted) (citations omitted).
However, the risk to this category of voters is significantly less than the risk to voters with special vulnerability to COVID-19 or voters who are caretakers for persons with special vulnerability to COVID-19. “The hallmark of a severe burden is exclusion or virtual exclusion” from voting. See Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016). We cannot say that in-person voting is foreclosed for these plaintiffs, or that they are excluded or virtually excluded from voting. The State‘s Plan for in-person voting includes detailed measures for their protection and the protection of the poll workers, including social distancing, screening questions for poll workers before entry into the polling places, plexiglass shields for check-in procedures, mandatory masks and gloves for poll workers and recommended masks for voters, single use pens for voters to use to sign poll books, single use styluses for voters to use to ensure touchless voting, and frequent and regular sanitation of surfaces.
(2) State‘s Interests
Having determined that the burden on the right to vote is moderate, we now must weigh that burden against the precise interests put forward by the State as justification for the burden imposed, here the burden resulting from the statutory eligibility requirements for absentee voting by mail set forth in
The State contends that it has a compelling interest in the efficacy and integrity of the election process and that the eligibility requirements for absentee voting by mail serve those interests. Subsumed within these broader interests, the State identifies three specific interests: 1) prevention of fraud; 2) fiscal responsibility; and, 3) feasibility.17
With respect to fraud, the State‘s interest is recognized in the Tennessee Constitution, in the election statutes, and in our prior decisions. See City of Memphis, 414 S.W.3d at 103–04. The Tennessee Constitution expressly empowers the Legislature to enact laws to secure the freedom of elections and the purity of the ballot box.
The trial court did not find the State‘s evidence regarding the risk of fraud which would result from an increase in absentee voting by mail persuasive. We tend to agree.18
Our view of the evidence of the potential risk of fraud, however, is not particularly germane to our evaluation of the State‘s interest in preventing fraud. We previously have rejected the notion that the State must demonstrate the existence of voter fraud before it properly may undertake measures intended to prevent it. Specifically, we have stated that
the integrity of the election process empowers the state to enact laws to prevent voter fraud before it occurs, rather than only allowing the state to remedy fraud after it becomes a problem . . . . Because of the nature of the state‘s constitutionally mandated role in the election process, a showing of harm is not a prerequisite to legislative action.
City of Memphis, 414 S.W.3d at 104. The Legislature may act prophylactically to prevent fraud so long as it does not “overstep by infringing on qualified citizens’ right to suffrage.” Id. See Little v. Reclaim Idaho, __S.Ct. __, 2020 WL 4360897 (Mem), at *2 (July 30, 2020) (Roberts, C.J., concurring) (recognizing that the State has a legitimate interest in preventing fraud).
The importance of the Constitution‘s delegation cannot be overstated. The State plainly has an interest in the statutory election scheme which the Legislature has enacted pursuant to its constitutional authority. Bond v. Dunlap, No. 1:20-cv-00216-NT, 2020 WL 4275035, at *11 (D. Maine July 24, 2020) (citation omitted). The election statutes promulgated by the Legislature reflect a preference for in-person voting. That preference represents a policy choice within the scope of the Constitution‘s express delegation to the Legislature. Within the scope of the Constitution‘s delegation also are the policy choices of the Coordinator of Elections, to whom the Legislature has delegated the authority to oversee the conduct of elections in this State. This includes the policy choices made with respect to the conduct of elections during the COVID-19 pandemic. These policy choices will be judged by history and by the citizens of Tennessee. We, however, properly may not and will not judge the relative merits of them, regardless of our own views. To do so would be to exceed the proper scope of our role as jurists.19
We find that the State‘s interests in the efficacy and integrity of the election process are sufficient to justify the moderate burden placed on the right to vote of those plaintiffs and persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19. We, therefore, conclude that those plaintiffs are unlikely to succeed on the merits of their claims.20 Accordingly, we hold that the trial court erred in granting a temporary injunction as to those plaintiffs.
For the reasons stated herein, the judgment of the trial court granting the plaintiffs a temporary injunction is vacated and the cases are remanded to the trial court for further proceedings consistent with this opinion. Recognizing that absentee ballots already have been cast for the August 6, 2020 election consistent with the trial court‘s temporary injunction, and mindful of the goal of avoiding alterations to election rules on the eve of an election, see Republican Nat‘l Comm. v. Democratic Nat‘l Comm., 140 S.Ct. 1205, 1207 (2020) (citations omitted), the absentee ballots of all Tennessee registered voters who timely requested and submitted an absentee ballot by mail for the August 6, 2020 election pursuant to the trial court‘s temporary injunction and which absentee ballots otherwise meet the requirements of the absentee voting statutes shall be duly counted. See
CORNELIA A. CLARK, JUSTICE