*1 Before: MOORE, GIBBONS, and READLER, Circuit Judges.
_________________
COUNSEL ON BRIEF: Dаnielle Lang, Jonathan Diaz, Molly Danahy, Ravi Doshi, Caleb Jackson, CAMPAIGN LEGAL CENTER, Washington, D.C., William L. Harbison, Christopher C. Sabis, SHERRARD, ROE, VOIGT & HARBISON, PLC, Nashville, Tennessee, for Appellants. Sarah K. Campbell, Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.
GIBBONS, J., delivered the opinion of the court in which READLER, J., joined. MOORE, J. (pp. 17–53), delivered a separate dissenting opinion.
_________________
OPINION _________________ JULIA SMITH GIBBONS, Circuit Judge. In the midst of the COVID-19 pandemic, absentee voting has found its way into the spotlight. Record numbers of voters are expected to vote by mail in the November 2020 election, and the increased interest in absentee voting has also led to increased interest in the policies and procedures governing how and when voters may vote absentee. In resolving cases of significant public interest, judges must, as they do in all cases, reach decision by employing independent, unbiased analysis, based on the law and the facts of a particular case.
The plaintiffs in this case consist of individuals and organizations located in Tennessee, and together they have brought five claims challenging the Tennessee statutory scheme that governs absentee voting. One claim challenges the eligibility criteria that Tennessee has imposed for absentee voters, one claim challenges limits on the plaintiffs’ ability to distribute unsolicited absentee ballots, two claims challenge Tennessee’s procedures for verifying voter signatures on absentee ballots, and the final claim challenges a restriction on first-time voters’ ability to vote absentee. Our decision today deals only with the two claims involving Tennessee’s signature verification procedures. For the reasons that follow, we AFFIRM the district court’s order denying the plaintiffs’ requested preliminary injunction on those claims, although we do so on a basis different from that relied on by the district court.
I.
Tennessee gives voters who fall within certain enumerated categories the opportunity to
“vote absentee by mail.” Tenn. Code Ann. § 2-6-201. One such category includes people who
are hospitalized or ill, those with physical disabilities, or caretakers for such persons. § 2-6-
201(5)(C)–(D). Tennessee has recently interpreted this category to encompass “persons who
have underlying medical or health conditions which render them more susceptible to contracting
COVID-19 or [are] at greater risk should they contract it . . . , as well as those who are caretakers
*3
for persons with special vulnerability to COVID-19.”
See Fisher v. Hargett
,
Historically, only about 2.5% of Tennesseans have voted absentee by mail. That number could be expected to rise for the upcoming election due to the COVID-19 pandemic.
Since the identity of a person who votes by mail cannot be verified as easily as someone who votes in person—in-person voters must present photo identification—the legislature has established procedures and conditions for absentee voting with which it demands “strict compliance.” Tenn. Code Ann. § 2-7-112(a)(1); § 2-6-101(c); see also City of Memphis v. Hargett , 414 S.W.3d 88, 110 (Tenn. 2013). The voter must first send a formal request or application to vote absentee by mail to the county election commission office, which must take place “not more than ninety (90) and not later than seven (7) days before the election.” Tenn. Code Ann. § 2-6-202(a)(1). The request must be written, signed, provide certain identifying information, and establish the voter’s eligibility to vote absentee by mail. Id. § 2-6-202(a)(1)– (3). The county administrator of elections reviews requests to vote absentee by mail. Id. § 2-6- 202(b), (d). In addition to determining whether the voter has provided the requisite information and established eligibility to vote absentee by mail, the administrator “shall compare the signature of the voter [on the request] with the signature on the voter’s registration record.” Id. If the administrator determines the signatures are “not the same,” then the request is rejected, and the voter is notified in writing. Id. §§ 2-6-202(b), 2-6-204(a)(3). If, however, the voter’s signatures are the same and the voter otherwise qualifies to vote absentee by mail, then the administrator “shall” mail the voter absentee ballot materials. Id. § 2-6-202(d).
Voters who qualify to vote absentee by mail receive (1) an absentee ballot; (2) an inner envelope in which to place the completed ballot; (3) an outer envelope in which to return those materials; and (4) instructions. Id. § 2-6-202(d). On the inner envelope is an affidavit that the voter must sign under penalty of perjury to verify that he or she is eligible to vote in the election. Id. § 2-6-202(e); § 2-6-309. Once the voter has completed the ballot, signed the affidavit, and placed the materials in the outer envelope, the voter returns the materials by mail to have the ballot counted. § 2-6-202(e). The ballot must be received by no later than the time the polls close. Id . §§ 2-6-202(e), 2-6-303(b). “Upon receipt by mail of the absentee ballot, the *4 administrator shall open only the outer envelope and compare the voter’s signature on the [affidavit [1] ] with the voter’s signature on the appropriate registration record.” Id. § 2-6-202(g). If the signatures match, then the ballot is counted. Id. (“This signature vеrification is the final verification necessary before the counting board counts the ballots.”). If, however, the administrator determines the signatures do not match, then the ballot is rejected, and the voter is “immediately” notified in writing. §§ 2-6-202(g), 2-6-204(b). This method of signature verification is not a new requirement in Tennessee. See 1994 Tennessee Laws Pub. Ch. 859 (S.B. 2556). Historically, county election officials have quickly notified voters whose absentee ballots were rejected, including contacting voters by mail, phone, and email.
The statutory scheme does not provide a voter an opportunity to cure a signature defect before her absentee ballot is rejected. However, voters whose ballots are rejected may submit a new absentee ballot or cast a provisional ballot in person (either during early voting or on election day), provided they do so by close of polls on election day. Tenn. Code Ann. § 2-7- 112(a)(3). Additionally, voters who are concerned that their absentee ballot might be rejected may cast a provisional ballot even before being notified of a rejection. Tenn. Code Ann. § 2-7- 112(a)(3)(A). If the voter’s absentee ballot is ultimately accepted and counted, the provisional ballot will be discarded. But if the absentee ballot is rejected, the provisional ballot will be counted. See Tenn. Code Ann. § 2-7-112(a)(3)(B)(iii)-(v).
The plaintiffs—a Tennessee voter who wishes to vote absentee by mail in the upcoming general election [2] and organizations engaged in voter outreach with members who wish to vote absentee by mail—do not dispute Tennessee’s authority to impose a signature verification requirement for absentee ballots. Nor do they challenge the first signature verification step, which takes place before election officials send the voter an absentee ballot. Rather, they allege that Tennessee’s second and final signature verification process is constitutionally inadequate, *5 violating their right to procedural due process under the Fourteenth Amendment and fundamental right to vote under the First and Fourteenth Amendments.
Although the statutory scheme is silent as to how election officials are to go about the business of verifying signatures on absentee ballots, the parties do not dispute the salient features of Tennessee’s signature verification program, which the defendants—Tennessee’s Secretary of State and the Coordinator of Elections for the State of Tennessee [3] —are charged with executing. In particular, the parties agree that the officials charged with verifying absentee ballot signatures receive at least some training on signature verification. This training consists of a video prepared by the Election Division of the Oregon Secretary of State, which is supplemented by directives from the Division of Elections for the Tennessee Office of the Secretary of State. Among other things, the Division of Elections directs officials to apply a presumption in favor of the validity of the signature. The training video instructs officials that “all but the most obvious of inconsistent signatures are to be regarded as acceptable.” (R. 46-1, Goins Decl., at ¶¶ 23–24.) Election officials must compare the questionable signature “with as many exemplars on file as possible.” Id . at ¶ 26. A signature should not be rejected unless three officials, including the county election administrator, determine that it is inconsistent with the signature on file.
The parties are also in general agreement as to the number of ballots that have been reported rejected for inconsistent signatures in the 2016 and 2018 national elections— around 0.03% and 0.09% respectively—although they disagree about the significance of these figures.
Of course, it does not follow from the lack of dispute over the salient features of Tennessee’s signature verification program that the parties agree on that program’s effectiveness. The defendants, pointing to the strikingly small rejection rate, insist that the state’s signature verification procedures are effective and that there is no evidence that the rejections that did occur were erroneous, rather than proper rejections of invalid ballots. In particular, the defendants point to an absentee ballot cast in 2018 by a voter who had already died as evidence that the signature-verification process has prevented fraudulent ballots from being counted. The *6 plaintiffs, for their part, insist that Tennessee’s training is more likely to produce erroneous signature verification determinations than to accurately reject ballots that do not have a genuine signature. This is because, according to the plaintiffs’ expert, a forensic document examiner, it is particularly difficult without extensive training to tell the difference between the natural discrepancies in a voter’s signature from signing to signing—attributable to factors “including age, health, native language, and writing conditions”—and variations attributable to the signature being forged by a different person. (R. 40-4 Mohammed Decl. I, at ¶¶ 21–23, 28–37.)
The plaintiffs filed suit on May 1, 2020, one week after Tennessee issued its April 23, 2020 COVID-19 Election Contingency Plan, which had allowed voters to claim the risk from COVID-19 as a valid reason to vote absentee. On June 12, 2020, one day after the defendants filed their answer, appellants filed the operative amended complaint and moved for a preliminary injunction.
The plaintiffs argue that Tennessee’s signature-verification procedures violate procedural due process and infringe on the right to vote. The plaintiffs challenged the signature-verification laws on their face, and not as applied during the COVID-19 pandemic, arguing that the laws “will have serious consequences on the ability of Tennesseans to vote” due to increased absentee voting during the pandemic. (R. 39, Am. Compl., at ¶ 65.) The plaintiffs sought an injunction that would require Tennessee election officials to provide absentee voters notice and an opportunity to cure signature inconsistencies before rejecting their absentee ballots.
The defendants opposed the request for preliminary injunctive relief on multiple grounds. As relevant to this appeal, the defendants argued that the plaintiffs lacked Article III and third- party standing, that the plaintiffs were unlikely to succeed on the merits of their claims, and that the harm an injunction would cause to the State and the public interest outweighed the plaintiffs’ alleged harms.
The district court proceeded on the plaintiffs’ motion—which also sought to enjoin other facets of Tennessee’s vote by mail procedures—in pieces. It reached the plaintiffs’ signature verification claims on August 28, 2020 and denied the plaintiffs a preliminary injunction on the grounds that they had failed to establish a likelihood of success on the merits or that they would *7 suffer irreparable harm if the district court denied the injunction. This interlocutory appeal followed.
II.
A.
“A district court must balance four factors in determining whether to grant a preliminary
injunction: ‘(1) whether the movant has a strong likelihood of success on the merits; (2) whether
the movant would suffer irreparable injury absent the injunction; (3) whether the injunction
would cause substantial harm to others; and (4) whether the public interest would be served by
the issuance of an injunction.’”
Am. Civil Liberties Union Fund of Mich. v. Livingston Cnty.
,
Whether the movant is likely to succeed on the merits is a question of law, which this
court reviews de novo.
Ammex, Inc. v. Wenk
,
1.
While the district court did not directly consider the question, we begin our analysis with
whether the plaintiffs have standing. Without standing, we lack subject matter jurisdiction over
the claims before us.
Lyshe v. Levy
,
The doctrine of standing arises from Article III of the Constitution, which gives federal
courts jurisdiction over cases and controversies. U.S. C ONST . art. III § 2;
see also Lujan v.
Defenders of Wildlife
,
This court recently applied
Lyons
in another case challenging Tennessee elections
procedures.
See Shelby Advocates for Valid Elections v. Hargett
,
Here, the plaintiffs have clearly not demonstrated that they face an actual, concrete, particularized, and imminent threat of harm. The plaintiffs’ allegations involve two layers of speculation about the upcoming election. First, they argue that based on historiсal rejection rates, which were 0.03% in 2016 and 0.09% in 2018, that some absentee ballots will be rejected for inconsistent signatures. Second, the plaintiffs claim that an unknown number of the ballots that are rejected will be erroneously rejected because of human error, thereby infringing on the plaintiffs’ members’ constitutional rights. The plaintiffs do not cite any official data to support their theory that some of the absentee ballots will be incorrectly rejected. They also do not allege that one of their members has had an absentee ballot erroneously rejected in the past. Instead, they rely on the expert opinion of a forensic document examiner. After reviewing the Tennessee statutes and academic literature, the plaintiffs’ expert concluded that it was highly likely that the Tennessee officials will erroneously reject some absentee ballots in the upcoming election. The expert explained that even forensic examiners make mistakes when verifying signatures, so it is likely that Tennessee election officials will make mistakes as well.
While the dissent contends that the forensic examiner’s opinion is unrefuted, in the district court the defendants argued that the expert’s opinion was based on a misunderstanding of Tennessee election safeguards. Specifically, the defendants provided declarations from Tennessee election officials who detailed the procedures they have put in place to protect against human errors in the signature verification process. For example, election officials watch a mandatory training video, where they are instructed to accept all but the most obviously inconsistent signatures and to compare each signature to as many examples on file as possible. Officials are required to start from the presumption that signatures are valid and look for ways to accept rather than reject each ballot. Before any ballot is rejected for inconsistent signatures, three trained election officials, including an administrator, must agree that the signature on the absentee ballot does not match the signature in the voter registration records. Given the training and protections practiced by Tennessee officials, it is far from inevitable that an absentee ballot will be incorrectly rejected due to an inconsistent signature.
Moreover, the dissent’s reliance on the forensic document examiner’s opinion goes beyond the bounds of the examiner’s expertise. A forensic document examiner is a forensic *11 scientist who gives expert opinions about the authenticity of particular documents. Perhaps such experts are qualified to tout generally their own expertise in verifying documents over that of a lay examiner. But that is not the approach of the plaintiffs’ expert. Instead, he speculates that lay election workers, in the face of increased absentee ballots, will not do as well as they have done in the past in verifying signatures. This opinion relates to the personal characteristics of Tennessee election workers, suggesting that they will be less diligent than they have been in the past if they are faced with more work. This is an area in which the document examiner has no expertise and one in which his opinion amounts to pure speculation. His opinion on this point fails to support an inference of imminent harm.
Furthermore, even if an individual’s ballot is erroneously rejected as part of the signature verification process, the individual may still have an opportunity to vote through another means. Under Tennessee law, officials are required to notify individuals “immediately” if their ballot is rejected due to an improper signature, and officials go to great lengths to promptly notify affected voters. After they are notified that their absentee ballot has been declined, voters are able to either send a second absentee ballot or cast a provisional ballot in person. Many voters, therefore, will likely have an opportunity to cure any errors in their initial absentee ballot. Tennessee also has procedures for disabled individuals who are unable to write their signature or mark; they may go to their voting precinct and cast a ballot with the assistance of an election administrator. Tenn. Code Ann. § 2-7-112(b). Thus, even in the remote possibility that someone requests an absentee ballot and in the interim suffers an injury rendering him unable to replicate his previous signature, Tennessee provides safeguards for that individual’s right to vote.
In sum, the plaintiffs have failed to meet their burden of establishing that they are at risk of a concrete, imminent injury. Their alleged injury is even more remote than the allegations brought by the plaintiff in Lyons . In Lyons , the plaintiff had actual evidence of past injury. Here, the plaintiffs cannot cite with certainty or specification any past erroneous rejection of an absentee ballot. If concrete evidence of past harm was not enough to establish standing in Lyons , then the speculative allegations of past and future harm in this case are certainly insufficient. Accordingly, the plaintiffs have failed to make a substantial showing of standing because they *12 have failed to demonstrate that they are facing an actual, concrete, particularized, and imminent injury.
Despite the dissent’s insistence, this case is not controlled by Sandusky Cnty. Democratic Party v. Blackwell , 387 F.3d 565 (6th Cir. 2004). In Sandusky , plaintiffs challenged Ohio’s provisional ballot system, which they argued violated federal election laws. See id. at 570–71. There, this court held that the plaintiffs had standing even though they could not identify which future voter would be erroneously turned away at her polling place on election day. at 574. The court explained that:
[A] voter cannot know in advance that his or her name will be dropped from the rolls, or listed in an incorrect precinct, or listed correctly but subject to a human error by an election worker who mistakenly believes the voter is at the wrong polling place. It is inevitable , however, that there will be such mistakes.
Id.
(emphasis added). Unlike the plaintiffs in
Sandusky
, the plaintiffs here have failed to show
that human errors are inevitable. We are not, as the dissent implies, asking the plaintiffs to
predict the future and specifically identify which absent ballots will be erroneously rejected. We
are simply asking for the plaintiffs to show, as is required under
Sandusky
, that such errors surely
will happen. They have not done so. Instead, the plaintiffs’ allegations boil down to fear of “the
ever present possibility that an election worker will make a mistake.”
Shelby Advocates
,
Because we find that the plaintiffs have not demonstrated an injury in fact, they cannot show either direct organizational standing or representative standing on behalf of their members. [4] Even if the dissent is correct that the plaintiffs have significantly shifted their operations, activities, and strategies in response to the COVID-19 pandemic, that would not overcome the plaintiffs’ imminence problem. “An organization can no more spend its way into standing based on speculative fears of future harm than an individual can.” Shelby Advocates , 947 F.3d at 982 (citing Clapper , 568 U.S. at 416); see also Fair Elections Ohio v. Husted , *13 770 F.3d 456, 460 (2014). Therefore, under any theory, the plaintiffs have failed to show a substantial likelihood of standing because they have not shown a threat of actual, imminent harm. This alone is enough to affirm the district court’s denial of plaintiffs’ motion for a preliminary injunction.
2.
Given our conclusion that the plaintiffs have failed to show a substantial likelihood of establishing standing, we need not go further. However, we will provide limited commentary to guide the district court in the ultimate resolution of various issues in this case. On the merits, the plaintiffs advance two theories of how the Tennessee signature verification procedure violates the constitutional rights of their members. First, Tennessee’s failure to provide pre-rejection notice and the opportunity to cure a signature mismatch before the ballot is rejected violates procedural due process. Second, the current procedure violates the fundamental right to vote because the failure to provide pre-rejection notice and an opportunity to cure will result in “the absolute deprivation of eligible voters’ right to vote.” (CA6 R. 28, Appellant Br., at 12.)
When considering whether a challenged state action violates procedural due process, we first consider whether there is a protected liberty interest. Johnson v. Morales , 946 F.3d 911, 922 (6th Cir. 2020). If there is a protected liberty interest, we consider “what process is due.” Id . The plaintiffs assert that there is a state-created liberty interest in voting absentee and having one’s absentee ballot counted and argue, therefore, that this court should determine what process is due under the factors established in Mathews v. Eldridge :
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge
,
A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” 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.”
Burdick v. Takushi
,
The Sixth Circuit has not clearly answered “whether procedural due process claims are
viable in voting rights cases outside the
Anderson-Burdick
framework.”
League of Women
Voters of Ohio v. LaRose
, No. 2:20-CV-3843,
But regardless of whether
Anderson-Burdick
governs the plaintiffs’ procedural due
process claim, it certainly governs their claim that the signature verification procedure violates
the fundamental right to vote. On that claim, the plaintiffs contend that the burdens imposed on
their members’ right to vote are substantial because they could result in ballots being improperly
rejected and votes not being counted.
See Mays
,
Determining whether a violation of the fundamental right to vote is likely to occur under Anderson-Burdick involves careful balancing of the burden on the voters with the state’s legitimate interests. Given that we have already concluded that the plaintiffs likely lack standing to pursue their claims, we need not engage in that balancing here.
C.
Finally, we note, briefly, that the plaintiffs have also failed to demonstrate that they are
likely to suffer irreparable harm. Irreparable harm is an “indispensable” requirement for a
preliminary injunction, and “even the strongest showing” on the other factors cannot justify a
preliminary injunction if there is no “imminent and irreparable injury.”
D.T. v. Summer Cnty.
Schs.
,
Our focus during our inquiry into irreparable harm “is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Planned Parenthood of S.E. Pennsylvania v. Casey , 505 U.S. 833, 894 (1992)). If a ballot is improperly rejected and the voter has no ability to cure that rejection, that might amount to a restriction of a constitutional right. But, as we discussed during our analysis of whether the plaintiffs have standing, the plaintiffs are not facing a certain and immediate risk of harm. The plaintiffs have not presented any evidence that demonstrates that members of their organizations are likely to have their ballots erroneously rejected under the current procedures. And the plaintiffs have not demonstrated that anyone whose ballot may be erroneously rejected will ultimately be unable to cast a ballot, either absentee or by provisional ballot. Therefore, there is no evidence that anyone’s constitutional rights are likely to be infringed by the Tennessee procedures. For that reason, the plaintiffs cannot show that they will be irreparably harmed if they are not issued a preliminary injunction.
III.
For these reasons, we AFFIRM the district court’s denial of a preliminary injunction. *17 _________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. Make no mistake: today’s
majority opinion is yet another chapter in the concentrated effort to restrict the vote.
See, e.g.
,
Raysor v. DeSantis
, 140 S. Ct. 2600 (2020) (mem.);
Republican Nat’l Comm. v. Democratic
Nat’l Comm.
, 140 S. Ct. 1205 (2020);
Democratic Nat’l Comm. v. Bostelmann
, --- F.3d ----,
I.
To read the majority opinion, you would be forgiven for thinking that there was no
question that Plaintiffs likely lack standing to pursue their constitutional claims. The majority
crafts this illusion by misapplying inapposite authority, glossing over binding case law, and
torturing the evidentiary record. In doing so, it sets a dangerous precedent of its own that will
doubtless close the courthouse door to litigants, like Plaintiffs, seeking nothing more than to
ensure that their votes are counted. That result strikes at the core of our democratic system. As
the Supreme Court said in
Reynolds v. Sims
,
Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.
The majority has abdicated this fundamental duty by conjuring up fictional barriers at the threshold that allow them to turn a blind eye to the merits. Their justifications for doing so are feeble.
A plaintiff’s likelihood of success on the merits “‘necessarily includes a likelihood of the
court’s
reaching
the merits, which in turn depends on a likelihood that plaintiff has standing.’”
Waskul v. Washtenaw Cnty. Cmty. Mental Health
,
The foundational elements of standing are well established: “The plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v.
Robins
, 136 S. Ct. 1540, 1547 (2016),
as revised
(May 24, 2016) (citing
Lujan v. Defs. of
Wildlife
,
At its core, “[t]he purpose of the standing doctrine is to ensure that courts do not render
advisory opinions rather than resolve genuine controversies between adverse parties.”
Lujan
,
Decisional law recognizes that organizational plaintiffs are no less able to demonstrate
standing than individuals. Indeed, an organization has two avenues for establishing that they
have standing to sue: “(1) on its own behalf because it has suffered a palpable injury as a result
of the defendants’ actions; or (2) as the representative of its members.”
MX Grp., Inc. v. City of
Covington
,
A.
To begin with, I believe that Plaintiffs have demonstrated a likelihood that they have standing as representatives of their members. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc. , 528 U.S. 167, 181 (2000). The only question in dispute here is whether any of Plaintiffs’ members would likely have standing to sue in their own right—Defendants do not contend that the issue falls outside of Plaintiffs’ organizational purposes or that the suit requires individual members’ participation (nor could they).
Defendants’ argument boils down to this: Plaintiffs do not have standing to sue on behalf of their members because they have failed to—indeed, cannot—identify a specific member who would have standing to sue in their own right. But, in these circumstances, Plaintiffs were required to do no such thing. That is because we do not require organizational plaintiffs to specify members who would themselves have standing where the injury in question could not be “specifically identified in advance.” Sandusky Cnty. Democratic Party v. Blackwell , 387 F.3d *20 565, 574 (6th Cir. 2004) (per curiam); see also Block Commc’ns, Inc. v. F.C.C. , 808 F. App’x 332, 336 (6th Cir. 2020). In other words, where an organizational plaintiff seeking to establish standing to sue as a representative of its members could not identify the specific member that will be harmed due to the nature of the injury, this court does not hold them to an impossible standard—it is enough to demonstrate that at least one of their members will likely suffer the injury. See Sandusky , 387 F.3d at 573–74. Here, Plaintiffs cannot know which of their members’ absentee ballots will be rejected until election day, and thus they cannot identify the injury that will occur with the level of specificity that Defendants demand and the majority implicitly requires. But under this court’s precedent, that is not an insurmountable barrier.
This doctrine is typified by
Sandusky
, a case to which the majority barely pays lip
service. In
Sandusky
, a panel of this court considered a challenge to Ohio’s provisional ballot
system brought by various political groups and labor unions.
Acknowledging that the plaintiffs had not identified specific members “who will seek to vote at a polling place that will be deemed wrong by election workers,” the Sandusky panel nevertheless concluded the organizational plaintiffs had standing to pursue their claim. at 574. The panel explained its reasoning thus:
Appellees have not identified specific voters who will seek to vote at a polling place that will be deemed wrong by election workers, but this is understandable; by their nature, mistakes cannot be specifically identified in advance. Thus, a voter cannot know in advance that his or her name will be dropped from the rolls, or listed in an incorrect precinct, or listed cоrrectly but subject to a human error by an election worker who mistakenly believes the voter is at the wrong polling place. It is inevitable, however, that there will be such mistakes. The issues [that the organizational plaintiffs] raise are not speculative or remote; they are real and imminent. To the Sandusky panel, then, the touchstone for representative organizational standing was
not the identification of a specific member who was sure to be denied a provisional ballot.
Instead, under
Sandusky
, in cases where the injury cannot be “specifically identified in advance,”
it is enough for a plaintiff organization to demonstrate that mistakes are certain to occur and that
at least some of the organization’s members will be affected.
See id.
Especially in the context of
suits involving elections, this rule makes good sense. Forcing plaintiffs to wait until they (or
their members) have been denied the opportunity to vote on election day would preclude any
meaningful relief because there is no casting a new ballot once the election is over.
See League
of Women Voters of N. Carolina v. North Carolina
,
Applying
Sandusky
to the matter at hand, Plaintiffs have established a likelihood that
some of their members will have their ballots erroneously rejected, and that is the most that this
court’s precedent requires.
See Sandusky
In order to avoid
Sandusky
, the majority resorts to a lame attack on the evidence
supporting Plaintiffs’ position and two inapplicable cases, namely,
Lyons
, 461 U.S. 95, and
Shelby Advocates for Valid Elections v. Hargett
,
Dr. Mohammed set forth a comprehensive analysis of the risk of error inherent in signature verification, explaining that even highly trained FDEs will erroneously conclude that a signature is non-genuine. See id. at ¶ 46 Page ID #1550). Indeed, in one study referenced by Dr. Mohammed, FDEs erroneously concluded that signatures were non-genuine at a rate of 7.05%. Id. at ¶ 29 (Page ID #1538–39). If FDEs—who typically receive two-to-three years of full time training—will erroneously conclude a signature is non-genuine, then it does not require any speculation whatsoever to conclude that Tennessee election officials—even with the benefit of a 45-minute video and the directives the majority recounts—will make the same error at a higher rate. See id. at ¶ 33 (Page ID #1541). Moreover, Dr. Mohammed identified numerous features of Tennessee’s signature verification program that would increase the rate of error, such as inadequate training, a lack of the requisite equipment, time pressure, a failure to screen of election officials for “form blindness,” and limited comparison signatures upon which to base the conclusion that a given absentee ballot held an invalid signature. at ¶¶ 33, 45 (Page ID #1541, 1549). In light of this, Dr. Mohammed had no trouble opining that Tennessee election *24 officials are “highly likely” to erroneously reject absentee ballots due to perceived signature invalidity, id. at ¶ 20 (Page ID #1535), going so far as to say that “Tennessee’s signature matching procedures are all but guaranteed to result in the erroneous rejection of properly cast ballots,” id. at ¶ 50 (Page ID #1551–52). To take this evidence and conclude that errors may not occur at all—as the majority does—is downright unreasonable.
In an ineffective effort to undercut Dr. Mohammed’s testimony, the majority points out that Defendants offered affidavits showing that Dr. Mohammed was unaware of certain extra- statutory features of Tennessee’s signature verification process when he offered his opinions. But none of Defendants’ evidence—detailing the (meager) signature verification training that Tennessee election officials receive, including directives to employ a presumption favoring the validity of signatures and vague assertions that a ballot will not be rejected unless three officials deem the signature invalid—directly refuted Dr. Mohammed’s opinion that when signature rejections occur, they highly likely to be erroneous. Indeed, Defendants produced no evidence suggesting what the actual rate of error for signature verification rejections might be—assuming Dr. Mohammed was incorrect—aside from a single, unverified case of suspected voter fraud. R. 46-3 (Warren Decl. at ¶ 7) (Page ID #1854). Moreover, Defendants’ evidence largely affirmed that Tennessee’s signature verification process lacked the features that Dr. Mohammed had originally opined would be required of a system that resulted in reliable signature verification determinations. Thus, even after reviewing Defendants’ evidence, Dr. Mohammed did not change his earlier opinions. R. 54-7 (Mohammed Decl. II at ¶¶ 1–6) (Page ID #2311– 12); see also R. 40-4 (Mohammed Decl. I at ¶ 36) (Page ID #1544) (opining that “Tennessee election officials, even if put through a short training session, are unlikely to be able to accurately account for these differences, particularly in an expedient time frame or when only one or a few specimen signatures are available for comparison.”). In short, the majority’s effort to downplay Dr. Mohammed’s expert opinions fails. Coupled with the certainty that ballots will be rejected on the basis of a perceived signature invalidity and the historic rate for such *25 rejections, Dr. Mohammed’s opinion renders it a certainty that erroneous rejections will happen (and will very likely happen to Plaintiffs’ members). [3]
The majority takes further issue with one of Dr. Mohammed’s other opinions: that the rate of erroneous rejections due to perceived signature invalidity will increase along with the number of absentee ballots Tennessee election officials must review. Maj. Op. at 10–11. But as explained above, my conclusion that Plaintiffs are likely to establish standing does not depend upon that particular opinion because Plaintiffs can establish that one or more of their members will likely have their absentee ballots erroneously rejected due to perceived signature invalidity even if the historic rate of rejection remains the same. In any case, the majority’s suggestion that Dr. Mohammed is not qualified to render that particular opinion is ludicrous. Dr. Mohammed is an accomplished researcher and academic in the field of document examination and signature authenticity in particular. In addition to his 2019 Book, Forensic Examination of Signatures , he has published sixteen peer-reviewed articles in the field, many focused specifically on “the analysis of genuine, disguised, and forged signatures, and handwriting examination.” R. 40-4 (Mohammed Decl. I at ¶¶ 7, 8) (Page ID #1532–34). Moreover, he has trained investigators, attorneys, and graduate students in document verification, and developed standards and practices regarding the same. Id. at ¶¶ 4–5 (Page ID #1531–32). Even ignoring Dr. Mohammed’s other accomplishments and experience, this would more than qualify him to opine that “In my experience, the more signatures an election official has to review, the more likely they are to make mistakes, particularly when they laсk adequate time in which to conduct a review.” R. 54- 7 (Mohammed Decl. II at ¶ 3) (Page ID #2312). Contrary to the majority’s characterization, this opinion is based not on Dr. Mohammed’s assessment of the “personal characteristics” of election officials but on the conditions under which the election officials must perform their duties—and in particular the insufficient time the election officials would have to examine the signatures in question. ; R. 40-4 (Mohammed Decl. I at ¶ 25) (Page ID #1536–37) (opining that “because a minimum of two hours is required to accurately compare signatures, election officials with *26 insufficient time to evaluate the signature on the ballot return envelope are likely to make additional errors”); R. 46-1 (Goins Decl. at ¶ 9) (Page ID #1826) (anticipating delays in counting absentee ballots due to significant increase in volume received). Dr. Mohammed was qualified to offer that opinion, even though Plaintiffs’ standing argument does not depend on it.
As for the two cases the majority relies on, they do not compel its strained conclusion, which is contrary to this court’s binding precedent in Sandusky . First, the majority points to Lyons , where the Supreme Court rejected, on standing grounds, a suit that sought to enjoin the Los Angeles Police Department (“LAPD”) from employing the use of chokeholds. 461 U.S. at 97–98. Specifically, the Court concluded that the plaintiff’s allegation that the LAPD sometimes used chokeholds in the course of policing (including in the past on plaintiff himself) did not establish an injury that was sufficiently imminent. Id. at 105. In other words, the plaintiff failed to demonstrate that he was likely to once again have a chokehold used upon him in the future as would be required to seek injunctive relief. But Lyons involved an individual plaintiff, not organizations like Plaintiffs, and this distinction is fatal to the majority’s reasoning. Although evidence of the LAPD’s regular use of chokeholds would not establish a likelihood that it will employ a chokehold on a given individual, that same evidence could establish that the LAPD will employ a chokehold in an interaction with a plaintiff organization’s members, so long as the membership was large enough relative to the rate at which the LAPD employed chokeholds. In the language of Sandusky , such an organizational plaintiff could not “know in advance” the member who would find themselves on the receiving end of an LAPD chokehold, but it could demonstrate the inevitability of such an interaction taking place. Sandusky , 387 F.3d at 574. Lyons is of no consequence here. [4]
Second, the majority relies on Shelby Advocates . But that case serves only to underscore the applicability of Sandusky and the sufficiency of Plaintiffs’ asserted injury. In Shelby *27 Advocates , the plaintiffs, including at least one organization, contended that the past occurrence of election administration issues—“system vulnerabilities, previous equipment malfunctions, and past election mistakes”—created a future risk of vote denial that was sufficient to constitute an injury in fact. 947 F.3d at 981 . The panel rejected this theory as lacking the requisite imminence. See id. at 981–83. But in doing so, the panel specifically took the time to distinguish Sandusky :
In Sandusky , the challenged policy . . . made it “inevitable” that the defendants would deny individuals their voting rights. Here, by contrast, plaintiffs allege only policies that add risk to the ever present possibility that an election worker will make a mistake. No injury may occur at all. Any analogy to Sandusky falls short. at 983. As explained at length above, Plaintiffs have established the inevitability of erroneous
absentee ballot rejections due to perceived signature issues, and they have further demonstrated a significant likelihood that their members will be among the ones inevitably affected. Accordingly, Shelby Advocates does not control the outcome of this case.
In sum, the majority’s analysis of Plaintiffs’ standing to represent the interests of its members is flawed in numerous respects—misconstruing the evidence and the law in a misguided effort to affirm the denial of a preliminary injunction. I have no doubt that Plaintiffs have a “‘personal stake in the outcome’” that “‘assure[s] that concrete adverseness which sharpens the presentation of issues’ necessary for the proper resolution of constitutional questions.” Lyons , 461 U.S. at 101 (quoting Baker v. Carr , 369 U.S. 186, 204 (1962)). By concluding that Plaintiffs likely have not demonstrated such an interest, the majority has assured there will be no timely resolution of Plaintiffs’ constitutional questions, let alone a proper one. Such a resolution would not have been a mere advisory opinion, undermining the separation of powers. It would have been the resolution of a genuine constitutional controversy, central to this court’s fundamental role—one with hundreds if not thousands of legitimate votes in the balance.
B.
I would also conclude that Plaintiffs are likely to establish direct organizational standing to pursue their constitutional claims. To demonstrate direct organizational standing, a plaintiff organization must show that it suffered a “palpable injury as a result of the defendants’ actions.” *28 MX Group , 293 F.3d at 333. To do so, Plaintiffs point to various changes made to their operations, activities, and expenditures to account for and protect against Tennessee’s signature verification process.
Plaintiffs’ direct organizational standing argument turns on this court’s decision in
Coalition for the Homeless
,
(1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; [and] (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven . . . .
Id. at 618, 624. The defendants argued that the organizational plaintiffs’ asserted injury, which stemmed from actions undertaken in response to the changes in the law, was insufficient to establish direct organizational standing. Id. at 624. The panel disagreed, reasoning that the change in law triggered a comprehensive shift in the advocacy organization’s voter outreach sufficient to establish an injury in fact; before the new laws the organization had focused its outreach efforts towards encouraging homeless individuals to vote early in-person, whereas after the shift in the law occurred the organization had focused its outreach efforts on encouraging homeless individuals to vote by mail. This represented “an overhaul of the get-out-the-vote strategy of an organization that uses its limited resources helping homeless voters cast ballots” requiring “more volunteers, time, and expenditures” that went beyond “the ‘effort and expense’ associated with advising voters how to ‘comport’ with the law,” which alone would have been insufficient to establish an injury in fact. Id. (quoting Fair Elections Ohio v. Husted , 770 F.3d 456, 460 (6th Cir. 2014)).
Here, organizational plaintiffs have offered evidence of a similar overhaul in their outreach and advocacy activities sufficient to constitute an injury in fact for standing purposes. Take, for example Plaintiff Equity Alliance, a “grassroots advocacy group that seeks to equip citizens with tools and strategies to engage in the civic process and empower them to take action *29 on issues affecting their daily lives.” R. 40-8 (Equity Alliance Decl. at ¶ 5) (Page ID #1585). This year, Equity Alliance has redirected significant time, effort, and resources towards absentee voting advocacy in Tennessee, which previously was not a focus for thе organization due to the high rate of in-person voting in the state prior to the COVID-19 pandemic. Id. (¶ 23–25) (Page ID #1588). This shift in focus includes plans to dedicate the organization’s limited resources to voter outreach regarding Tennessee’s signature verification process. (¶¶ 40–41) (Page ID #1591). The other organizational plaintiffs have demonstrated similar overhauls of their advocacy and outreach activities in response to the expected surge in absentee voting due to the COVID-19 pandemic, including efforts specifically targeting signature verification. See R. 40-7 (APRI Decl. at ¶¶ 27–30) (Page ID #1580) (prior to this year, efforts focused on encouraging in- person voting, but have shifted to absentee voting, including informing voters about signature verification issues); R. 40-6 (MCLC Decl. at ¶¶ 17–19, 27–29) (Page ID #1570–72) (diverted resources from in-person voting initiatives towards absentee voter outreach including informing voters about the signature verification process and how to avoid erroneous rejections); R. 40-5 (Tennessee NAACP Decl. at ¶¶ 41–46, 56–66) (Page ID #1561–64) (shifted outreach to focus on absentee voting, including efforts directed towards signature verification); R. 40-9 (Free Hearts Decl. at ¶¶ 14–15, 27–31) (Page ID #1597, 1599–1600) (to the same effect). These efforts have gone beyond simply informing constituents about how to comply with absentee voter laws, to include activities that encourage voters to practice their signatures in order to avoid erroneous rejections and to proactively reach out to election officials to ensure their absentee ballot has been accepted. See, e.g. , R. 40-5 (Tennessee NAACP Decl. at ¶¶ 61–63) (Page ID #1564). These injuries are fairly traceable to Tennessee’s signature verification procedures and would be redressed by a favorable judicial outcome because, if Plaintiffs obtained their desired injunction, they could redirect the resources currently being expended on signature verification efforts to other initiatives. See, e.g. , id. (¶ 66) (Page ID #1564).
Defendants raise a distinction between Coalition for the Homeless and this case. Specifically, they point out that unlike in Coalition for the Homeless , where the organizational plaintiff’s shift in organizational strategy resulted from newly enacted laws, Tennessee’s absentee voting laws are “hardly new.” Appellees’ Br. at 32. I acknowledge that the newly enacted status of the Ohio laws at issue in Coalition for the Homeless was a factor considered by *30 that panel, but I do not believe that renders the case inapplicable here. That is because Coalition for the Homeless does not stand for the proposition that challenges to newly enacted laws and only challenges to newly elеcted laws can result in a cognizable injury for the purposes of direct organizational standing in cases involving state-law challenges. The case does not purport to make such an all-encompassing pronouncement that would hamstring countless legitimate lawsuits, and indeed, if it did so purport, that would be dicta. At most, the case stands for the proposition that some sort of change in circumstances must have led to an organizational plaintiff redirecting its efforts in some fashion. That could result from a change in the law, but it could also result from any number of other things. The recent change in circumstances resulting from the COVID-19 pandemic identified by the organizational plaintiffs here suffices to meet such a standard, to the extent Coalition for the Homeless calls for it.
But I do not think that
Coalition for the Homeless
stands for even that much. The upshot
of that case is that an organization must establish that it has changed or will change its activities
in some fashion to address the challenged law—it cannot rely on insignificant changes to
activities that it was already conducting. I glean this from the context in which the panel in
Coalition for the Homeless
invoked the newly enacted status of the Ohio laws at issue, which
was in distinguishing the case from an earlier decision of this court,
Fair Elections Ohio
,
In this context, the panel’s invocation in
Coalition for the Homeless
of the newly enacted
status of the Ohio laws at issue is best understood as a helpful explanation for why the
organizational plaintiffs in that case stood on different footing rather than the articulation of a
new limitation on direct organizational standing. Whereas in
Fair Elections Ohio
the
*31
organization claimed an injury on the basis of substantially similar pre-existing activities, in
Coalition for the Homeless
the organizations claimed standing on the basis of overhauled
operations due to a change in the law. Read together, these cases stand for the uncontroversial
position that an organization may not manufacture standing from its pre-existing work, but must
demonstrate a significant shift in their operations, activities, or strategies.
See, e.g.
,
Common
Cause Ind. v. Lawson
,
The majority’s only retort to this argument is to repeat its assertion that there is no imminent threat that Plaintiffs’ members’ absentee ballots will be erroneously rejected, which would justify Plaintiffs’ overhauls and expenditures. For the reasons explained above, that false premise cannot support the majority’s conclusion that Plaintiffs are unlikely to establish direct organizational standing any more than it can support the majority’s conclusion that Plaintiffs are unlikely to establish standing as representatives of their members. Indeed, Plaintiffs have demonstrated a likelihood of establishing standing under either avenue. Accordingly, I would resolve the question of whether Plaintiffs are likely to succeed on the merits of their constitutional claims—a question the majority so eagerly has avoided. [5]
II.
For the first time on appeal, Defendants argue that this court should apply the same
analytical framework to address both of Plaintiffs’ constitutional claims. Specifically,
Defendants contend that this court should eschew the typical procedural due process analysis—
characterized by a two-step inquiry and balancing test the Supreme Court articulated in
Mathews
*32
v. Eldridge
,
To begin, our precedent rejects Defendants’ position—a point the majority neglects to
mention in unhelpfully noting the existence of these two constitutional tests but nothing further.
[6]
Take, for example,
Miller v. Lorain County Board of Elections
, where a panel of this court
addressed the constitutionality of an Ohio ballot access law, which required an independent
congressional candidаte to “file a nominating petition that contains valid signatures of at least
one percent of qualified electors voting in the last gubernatorial election who reside within the
district . . . where the election is to be held” in order to be placed on the ballot.
To be sure, as Defendants point out, our precedent also broadly states that
Anderson
-
Burdick
is “a single standard for evaluating challenges to voting restrictions.”
Obama for Am. v.
Husted
, 697 F.3d 423, 430 (6th Cir. 2012). Indeed, we have applied
Anderson
-
Burdick
in
analyzing challenges alleging that a state’s deadline for requesting an absentee ballot
impermissibly infringes upon the right to vote protected by the First and Fourteenth
Amendments,
Mays v. LaRose
,
The typical constitutional challenge to a state election law is an effort to vindicate a substantive right. For example, as in Miller , an independent candidate for Congress might argue that requiring that they obtain a certain number of signatures before they can appear on a ballot violates their rights to freedom of speech and political association protected by the First and Fourteenth Amendments. The gravamen of the claim is that the Constitution outright forbids the challenged conduct of the state: in the example, imposing the signature requirement as constituted. Put differently, the allegation is that the state’s conduct is constitutionally “wrongful,” however it goes about undertaking it. See Zinermon v. Burch , 494 U.S. 113, 125 (1990).
Procedural due process claims are different. The gravamen of a procedural due process
claim is not that the government’s conduct—in the procedural due process context, the
deprivation of liberty or property—is constitutionally prohibited of its own accord, but that the
state’s procedures do not adequately protect against mistaken, unjustified, or erroneous
*34
deprivations.
See Carey v. Piphus
,
Miller
and cases like it, which apply
Anderson
-
Burdick
to substantive constitutional
challenges to state election laws but apply the usual procedural due process analysis to related
procedural due process claims, appropriately preserve the conceptual distinction between these
two kinds of challenges. Doing so is important because those two tests are carefully calibrated to
vindicate substantive and procedural rights respectively. On the one hand, the
Anderson
-
Burdick
standard is classically substantive, balancing the state’s justification for regulating an election in
a particular way against thе burden that regulation places on a substantive right.
Compare
Burdick
,
The standards are superficially similar—balancing factors and considering state and
private interests—but differ in crucial respects. Most obviously,
Anderson
-
Burdick
does not
expressly account for procedure. That is not to say that
Anderson
-
Burdick
forbids the
consideration of procedure, but the standard relegates procedural inquires to the background,
even where they bear on the substantive question. Moreover, these two standards do not always
focus the inquiry on the same government interests. Under
Anderson
-
Burdick
, the inquiry
centers on the state interest that justifies burdening the substantive right,
Burdick
, 504 U.S. at
434, but under
Mathews
, the inquiry turns, at least in part, on a consideration of the state’s
interest in avoiding more burdensome procedures,
Defendants do not convince me otherwise. They contend that applying
Anderson
-
Burdick
to procedural due process challenges “respects the States’ broad constitutional authority
to regulate elections and its [sic] important interests in ‘assur[ing] that elections are operated
equitably and efficiently.” Appellees’ Br. at 36 (quoting
Burdick
,
With this discussion behind us, I will now turn to the application of these two standards. I will apply the usual procedural due process analysis to Plaintiffs’ procedural due process claim. As for Plaintiffs’ claim that Tennessee’s signature verification requirement violates the fundamental right to vote, I will apply Anderson - Burdick . Ultimately, I would conclude that Plaintiffs are likely to succeed under either standard, rendering much of what I have said above somewhat academic. Nevertheless, that may not always be the case for other plaintiffs, and so it is important to lay out the reasons that support taking this path before I begin upon it.
III.
Plaintiffs’ first challenge to Tennessee’s signature verification process seeks to vindicate
their members’ (and Tennessee voters’) procedural due process rights, which the Fourteenth
Amendment protects. “The Fourteenth Amendment prohibits states from depriving individuals
of life, liberty, or property without due process of law.”
Johnson v. Morales
,
A.
“Protected liberty interests spring from two possible sources, the due process clause itself
and the laws of the state involved.”
Codd v. Brown
,
This court synthesized the standard for determining whether state law creates a protected liberty interest in Tony L. By and Through Simpson v. Childers :
State-created liberty interests arise when a state places “substantive limitations on official discretion.” A state substantively limits official discretion “by establishing ‘substantive predicates’ to govern official decisionmaking . . . and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” The state statutes or regulations in question also must use “explicitly mandatory language” requiring a particular outcome if the articulated substantive predicates are present. Finally, the statute or regulation must require a particular substantive outcome. State-created procedural rights that do not guarantee a particular substantive outcome are not protected by the Fourteenth Amendment, even where such procedural rights are mandatory.
To begin, Tennessee law establishes substantive criteria that, if met, entitle a voter to vote
absentee by mail. Tenn. Code § 2-6-201. If these predicates are met, then election officials
“shall” mail the voter an absentee ballot upon receiving a proper request and “shall” deposit the
absentee ballot to be counted upon receiving the ballot and concluding that the voter is entitlеd to
vote. § 2-6-202(b), (g). In other words, Tennessee law mandates that election officials
provide absentee ballots to voters who satisfy established criteria, and mandates that those ballots
be counted upon their return.
See Tony L.
,
Tennessee law thus goes beyond providing voters a mere “expectation of receiving a certain process,” insufficient to create a liberty interest, and directs “a particular substantive outcome” with regard to a voter’s right to vote absentee by mail. See id. at 1185–86. Tennessee voters “have an expectation that a particular result”—having their absentee ballots counted— “will follow from a particular, required action”—an official determining that they are entitled to vote absentee—that is mandated where the voter meets established substantive criteria. See id. at 1186 (concluding that no liberty interest is created by a statute that requires state official to take certain steps in response to reports of child abuse, but that does not mandate a particular outcome from those actions); see also Pusey v. City of Youngstown , 11 F.3d 652, 656 (6th Cir. 1993) (“The Ohio victim impact law does not create a liberty interest here because it only provides that the victim has the right to be notified. The statute does not specify how the victim’s statement must affect the hearing nor does it require a particular outcome based on what the victim has said.”). The analysis is no more complicated than that. In these circumstances, Tennessee has created a liberty interest in voting absentee by mail sufficient to trigger due process protection.
And yet, the district court concluded otherwise. On appeal, Plaintiffs have correctly
identified the two primary errors that led the district court astray. First, the district court placed
undue significance on this court’s decision in
League of Women Voters of Ohio v. Brunner
,
In Brunner , a panel of this court dealt with a complaint alleging that Ohio was “utiliz[ing] ‘non-uniform rules, standards, and procedures’ that result[ed] in ‘mаssive disenfranchisement and unreasonable dilution of the vote.’” 548 F.3d at 478. The plaintiffs in that case brought equal protection, substantive due process, and procedural due process claims, seeking injunctive and declaratory relief in the face of allegations of myriad issues saturating Ohio’s voting system. at 466. When the district court denied the defendants’ motion to dismiss each of these claims, *39 they sought and were granted interlocutory review. Id. at 473. On appeal, the panel affirmed the district court’s ruling as to the plaintiffs’ equal protection and substantive due process claims but reversed the district court as to their procedural due process claims. Id. at 479. In a single paragraph—reflecting the “brevity of argument” supporting the procedural due process claim— the panel remarked, without citing authority, that the plaintiffs’ procedural due process claim “subsume[d] procedural due process into the substantive due process analysis” and that the plaintiff had failed to “allege[] a constitutionally protected interest.” Id.
Brunner does not control the outcome of this case for at least three reasons. First, as Plaintiffs rightly point out, Brunner does not address the circumstances in which state law can create a liberty interest, let alone a liberty interest in voting absentee by mail under Tennessee law. Indeed, the Brunner plaintiffs’ asserted liberty interest was simply the constitutionally protected right to vote, and they do not appear to have argued that Ohio law created a cognizable liberty interest for the purposes of procedural due process. See id. Cases do not stand for propositions they did not consider.
Second, unlike the procedural due process claim in
Brunner
, Plaintiffs’ procedural due
process claim is wholly distinct from its claim that Tennessee’s absentee ballot laws burden the
fundamental right to vote. In
Brunner
, the plaintiffs alleged that a litany of state practices
amounted, in the aggregate, to a “fundamentally unfair” voting system in violation of their
substantive due process rights.
Third, and finally, the plaintiffs in Brunner failed to adequately brief their procedural due process argument. at 479. For this reason alone, Brunner is not controlling here, nor was it controlling on the district court below.
As for the prison litigation cases that the district court relied on, they simply do not stand
for the proposition that “the kinds of interests that will be deemed ‘liberty’ interests in [the
procedural due process] context is narrow, relating only to freedom from restraint.” R. 77 (Mem.
Op. at 16) (Page ID #2473).
Sandin v. Conner
,
Thus, Sandin does represent a change in the legal framework for analyzing the existence of state-law created liberty interests in the context of prison regulations, shifting the inquiry from one focused on the language of the regulation (as is the case for the typical state-created interest analysis) back to one focused on the “nature of the deprivation” relative to the strictures of prison life. See id. at 479–82, 485–87. But Sandin did not purport to displace the established standard for determining whether a state law establishes a liberty interest triggering due process requirements outside of the context of prison regulations. Instead, the Court expressly limited its inquiry to “the circumstances under which state prison regulations afford inmates a liberty interest protected by the Due Process Clause.” Id. at 474. Indeed, the Court emphasized the unique position of prison litigation, reiterating its view that in the context of prisoner litigation “federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” at 482. Moreover, the considerations that motivated the Court—a desire to avoid “disincentives for States to codify prison management procedures” while affording state officials the flexibility to “fine-tun[e] . . . the ordinary incidents of prison life”—have no bearing when considering procedural due process claims that do not involve *41 prison regulations or incarcerated prisoners. Id. at 482–83. The Court recognized as much, remarking that a focus on mandatory language “may be entirely sensible in the ordinary task of construing a statute defining rights and remedies available to the general public” but that “[i]t is a good deal less sensible in the case of a prison regulation primarily designed to guide correctional officials in the administration of a prison.” at 481–82.
Although this court has embraced
Sandin
in the context of prisoner litigation, it has done
so while reiterating the same unique concerns implicated by prisoner litigation that motivated the
Court in
Sandin
.
See Bazzetta v. McGinnis
,
The district court brushed aside these material distinctions, reading a sweeping holding
into a narrowly drawn Supreme Court decision. This was unwarranted. As explained above,
Tennessee law creates a protected liberty interest in voting absentee by mail. Lower courts
addressing substantively similar state laws have come to the same conclusion with near
uniformity.
See also Self Advoc. Sols. N.D. v. Jaeger
, --- F. Supp. 3d ---,
B.
Having concluded that Plaintiffs are likely to prove that there is a constitutionally
protected, Tennessee-law created liberty interest in voting absentee by mail, I would accеpt
Plaintiffs’ invitation to address the second step of the procedural due process inquiry, which the
district court eschewed. “Once it is determined that due process applies, the question remains
what process is due.”
Morrissey v. Brewer
, 408 U.S. 471, 481 (1972). Courts answer that
question using the familiar balancing test from
Mathews
, which directs us to balance the private
interest at stake “against the government’s interest in avoiding additional or substitute process, in
light of ‘the risk of an erroneous deprivation’ of a [liberty] interest ‘and the probable value, if
any, of additional or substitute procedural safeguards.’”
Hicks v. Comm’r of Soc. Sec.
, 909 F.3d
786, 799 (6th Cir. 2018) (quoting
Mathews
,
In cases like this one—where the state has failed to provide even the most rudimentary
ingredients of due process—it is appropriate to begin with a consideration of “‘the risk of
erroneous deprivation’” and the value inherent in additional procedures.
See id.
(quoting
Mathews
, 424 U.S. at 333). That is because, despite all the case-specific flexibility of the
procedural due process inquiry,
Leary v. Daeschner
, 228 F.3d 729, 743 (6th Cir. 2000) (“Due
process is a flexible principle whose requirements depend on the facts of the individual case”),
“‘the government is never relieved of its duty to provide
some
notice and
some
opportunity to be
heard prior to a final deprivation of a [liberty] interest,’”
Hicks
, 909 F.3d at 799 (original
emphasis) (quoting
Propert v. District of Columbia
, 948 F.2d 1327, 1332 (D.C. Cir. 1991)).
Thus, “[a]t some foundational level, this factor is dispositive.”
Hicks
,
Tennessee’s absentee voting law fails to provide these fundamental protections against the risk of erroneous rejections of absentee ballots on account of perceived signature invalidity. Presently, Tennessee law requires election officials to notify absentee voters if their ballot is rejected, apparently including where there is a signature verification issue. Tenn. Code §§ 2-6- 202(g), 2-6-204(b). However, the state does not afford the voter an opportunity to cure the signature issue before the rejection occurs. See id. Plaintiffs seek, primarily, a procedure that would provide for pre-rejection notice, and an opportunity to cure any signature defect before their absentee ballot is rejected.
I begin with notice. The Tennessee statute does provide notice, but only after election
officials have rejected the ballot. Post-deprivatiоn notice is appropriate in only limited
circumstances that do not apply here—this is not an emergency situation requiring immediate
action, and Tennessee cannot effectively remedy an erroneously rejected absentee ballot once the
election is over.
See Johnson
,
As for an opportunity to be heard, Tennessee provides none. Even with adequate notice, this would doom the state’s argument—“after all, ‘ some form of hearing is required before an individual is finally deprived of a [liberty] interest,’ no matter how small the interest or how great the governmental burden.” Hicks , 909 F.3d at 800 (quoting Mathews , 424 U.S. at 333 (emphasis added)). Plaintiffs are asking Defendants to provide the baseline requirements of due process—their request for an opportunity to cure is best understood as one for a form of hearing—but have been denied.
I do not place any significance on Defendants’ (and now the majority’s) insistence that some voters whose absentee ballots are rejected, may, if they receive their rejection notice in time, be able to request a new absentee ballot or vote in person. This relies, as Defendants acknowledge, on the assumption that the voter will receive the notice of signature invalidity *44 sufficiently ahead of the election, such that they could take advantage of these other avenues. But aside from Defendants’ vague assertions that this is possible “if time allows,” Appellees’ Br. at 10, it is far from clear that the notice would arrive in time. At the absolute least, it seems exceedingly unlikely that notices of signature invalidity would arrive in time for those voters who submitted the absentee ballot requests a week before election day, as Tennessee law allows them to do. See Tenn. Code § 2-6-202(a). And even if the state were able to timely send these notices in prior years, delay is inevitable given the anticipated surge in absentee ballots this year. Furthermore, even where an absentee voter did receive notice of signature invalidity in time, there is no reason to think that they would be able to avail themselves of the in-person voting options, given that voting absentee by mail in Tennessee is generally limited to voters who cannot go to the poll for significant reasons. See generally id. § 2-6-201. That being the case, and given Plaintiffs’ unrefuted expert testimony regarding the significant flaws in Tennessee’s signature verification training regimen, it is a certainty that a significant number of erroneous rejections of ballots will occur, and that this will result in disenfranchisement. Especially given the anticipated surge in voting absentee by mail in Tennessee—the state has printed four million absentee ballots in preparation for the election, R. 40-2 (Doshi Decl., Ex. 2 at 7) (Page ID #221)—this is a disgrace.
In any case, the remaining factors also favor Plaintiffs. Whether derived from the
Constitution or Tennessee law, the private interest at stake is significant. Simply put, voters—
however they cast their ballot—have a profound interest in having that ballot counted.
See McCutcheon v. Fed. Election Comm’n
,
As for the state’s interests, first, Defendants assert an interest in “‘counting
only
the votes
of eligible voters.’” Appellees’ Br. at 48 (quoting
Crawford v. Marion Cnty. Election Bd.
,
553 U.S. 181, 196 (2008) (plurality opinion) (emphasis added)). Fair enough. But an
opportunity to cure signature defects is fully consistent with this interest because it ensures votes
will be counted more accurately than they would be otherwise.
See Frederick
, 2020 WL
4882696, at *15 (“The State’s claimed interests here, to wit, in preventing voter fraud and
maintaining election integrity, are undeniably compelling interests. As Plaintiffs point out,
however, providing mail-in absentee voters notice and the opportunity to cure a perceived
signature mismatch by confirming their identity in fact
promotes
these important governmental
interests.”);
Saucedo
, 335 F. Supp. 3d at 220 (“[I]f anything, additional procedures further the
State’s interest in preventing voter fraud while ensuring that qualified voters are not wrongly
disenfranchised.”). Indeed, the state itself, as much as the public, has an interest in “permitting
as many qualified voters to vote as possible.”
See Obama for Am.
, 697 F.3d at 436.
Furthermore, the state’s interest in maintaining voter confidence,
see Crawford
,
Second, Defendants assert an interest in orderly elections. Again, however, an opportunity to cure perceived signature defects furthers the government’s interest rather than harming it. Defendants’ preferred alternative to an opportunity to cure is to have voters take steps to ensure their vote is counted, before or after receiving a signature rejection notice. For example, Defendants insist that a voter whose absentee ballot is rejected can request another absentee ballot, cast a provisional ballot in person prior to the election, or vote in person on election day. Appellees’ Br. at 10. They even suggest that a concerned voter could cast a provisional ballot in person before receiving a rejection of their absentee ballot. I fail to see how these are more orderly alternatives to a streamlined opportunity to cure a perceived signature defect that forecloses the possibility of confused voters clogging up polling places *46 despite the fact that they have already attempted to vote. And to the extent the state’s argument targets Plaintiffs’ request that the opportunity to cure should extend beyond election day, I fail to see how this disrupts the state’s electoral process where Tennessee law provides election officials until the third Monday after the election to certify election results, Tenn. Code § 2-8- 101(a), Defendants themselves acknowledge that counting absentee ballots may end up taking days, R. 46-1 (Goins Decl. at ¶ 9) (Page ID #1826), and Tennessee law already provides post- election-day cure periods for failures to provide proper identification when submitting a provisional ballot, id. § 2-7-112(e)(5). Finally, Defendants’ suggestion that absentee voters who are concerned that their mail ballots will be rejected should cast a preemptive provisional ballot in person in addition to their absentee ballot is more that “passing strange,” Appellants’ Reply at 14 n.11; indeed, it is downright farcical. Asking voters to work under the assumption that the state will fail to accurately employ its procedures is not a replacement for due process. Rather, it is an acknowledgement that the state has no interest in counting these votes at all. The effect of the majority is to tolerate this sham.
Defendants do not seriously argue that Plaintiffs’ requested procedures would create a significant administrative burden. Nor could they given their insistence that a “strikingly small” number of ballots are likely to be rejected. See, e.g. , Appellees’ Br. at 11. Indeed, some counties in Tennessee already go beyond the statutory procedure and take informal steps to help voters cure signature irregularities, suggesting it would not be burdensome to mandate an opportunity to cure across the board. R. 46-4 (Farley Decl. at ¶ 6) (Page ID #1857); R. 46-3 (Warren Decl. at ¶ 5) (Page ID #1854).
In sum, Tennessee’s absentee ballot signature verification procedures fail to provide even the baseline protections required by due process. As a result, Plaintiffs would be likely to succeed on the merits even if their liberty interest were minimal and the state’s interests were significant. The opposite is true here—Plaintiffs’ interests are significant and the state’s interests are not substantial—further demonstrating Plaintiffs’ likelihood of success on their procedural due process claim. The district court erred in concluding otherwise, and the majority erred further in evading the question.
IV.
Plaintiffs also allege that Tennessee’s absentee ballot signature process unconstitutionally burdens their right to vote under the First and Fourteenth Amendments. This claim does not turn on whether Plaintiffs have a constitutionally protected right to vote absentee by mail; rather, it turns on the burden that Tennessee has placed on their right to vote, which their members indisputably enjoy, and whether that burden exceeds that which the Constitution will endure.
“The right to vote is a ‘precious’ and ‘fundamental’ right.”
Obama for Am.
, 697 F.3d at
428 (quoting
Harper v. Va. State Bd. of Elections,
As explained above, we assess whether a state has unduly burdened the right to vote by
applying the “flexible”
Anderson
-
Burdick
standard.
Daunt
, 956 F.3d at 406. “Under this
standard, the rigorousness of our inquiry into the propriety of a state election law depends upon
the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”
Burdick
, 504 U.S. at 434. Thus, “[u]nder
Anderson-Burdick
, we first look to the burden the
State’s regulation imposes on the right to vote.”
Mays
, 951 F.3d at 784. If the burden is
“severe,” then we apply strict scrutiny. If the burden is reasonable, nondiscriminatory, and
otherwise minimal, then we apply rational basis review.
See id.
;
Timmons v. Twin Cities Area
New Party
,
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 plaintiffs’ rights.’”
*48
(quoting
Burdick
, 504 U.S. at 434). After all, especially in this intermediate zone,
“[n]o bright line separates permissible election-related regulation from unconstitutional
infringements on First Amendment freedoms.”
Timmons
,
This case falls in such an intermediate zone, as most cases do.
See Obama for Am.
,
697 F.3d at 429 (“Most cases fall in between these two extremes.”). On the one hand, where
Tennessee’s signature verification process results in an erroneous rejection, the burden is
significant, particularly so in those cases where due to the timing of the rejection the voter has no
opportunity to cast a ballot. On the other hand, it does seem as though at least some voters who
are timely notified of the rejection of their absentee ballots due to a perceived signature error will
be able to successfully vote (although I harbor significant doubts about how often that will be the
case), either by requesting and resubmitting a new absentee ballot by mail or voting in person, to
the extent they are able. Unlike the district court, I do not think
Anderson
-
Burdick
requires us to
artificially divorce the signature verification
requirement
from the
procedures
that render it
burdensome.
See Crawford
,
To resolve this case, I do not think it necessary further to delineate where exactly that
burden on the right to vote falls on the
Anderson-Burdick
scale. That is because, “[h]owever
slight that burden may appear, . . . it must be justified by relеvant and legitimate state interests
‘sufficiently weighty to justify the limitation.’”
Crawford
,
V.
“When a party seeks a preliminary injunction on the basis of a potential constitutional
violation, ‘the likelihood of success on the merits often will be the determinative factor.’”
Obama for Am.
,
Beginning with irreparable harm, “[w]hen constitutional rights are threatened or
impaired, irreparable injury is presumed.”
Obama for Am.
,
The district court took a different approach, concluding that Plaintiffs failed to establish an irreparable harm after concluding that there is an “exceeding[ly] low” rejection rate for absentee ballots. R. 77 (Mem. Op. at 39) (Page ID #2496). It followed, according to the district court, that even though rejections occur, and even though “presumably,” some of those rejections are erroneous, and even though Plaintiffs had “tens of thousands of members,” Plaintiffs had not shown a likelihood of irreparable harm without some more specific assertion from Plaintiffs as to why they are likely to be harmed. at 38–42 (Page ID #2495–99). The majority beats a similar track, repeating аgain its perception that Plaintiffs’ harm is entirely speculative.
I think, to reverse the old adage, that the district court—and now the majority—missed
the trees for the forest. When we review a facial challenge like Plaintiffs have presented here,
*50
our focus “is the group for whom the law is a restriction, not the group for whom the law is
irrelevant.”
Planned Parenthood of Se. Pennsylvania v. Casey
,
Moving on, neither party spends much time on the public and government interests at
stake, which makes sense given that it was not a focus for the district court and would be
somewhat duplicative of the constitutional arguments above. Nor does the majority pass upon
these factors. Suffice it to say, “[t]he public interest . . . favors permitting as many qualified
voters to vote as possible.”
Obama for Am.
,
More fervently briefed is one final factor—timing. Indeed, this factor is high fashion in
election cases these days.
See, e.g.
,
Republican Nat’l Comm.
,
As for Defendants’ second timing argument, I do not think Supreme Court precedent
forecloses Plaintiffs’ relief due to the proximity of the November 3, 2020 General Election,
although I am cognizant that the Supreme Court “has repeatedly emphasized that lower federal
courts should ordinarily not alter the election rules on the eve of an election.”
Republican Nat’l
Comm.
,
Regarding voter confusion, Plaintiffs’ injunction would add a final step to Tennessee’s signature verification process, requiring election officials to give an opportunity to cure signature defects before a ballot is rejected. This added procedural safeguard would prevent voter confusion caused by erroneous signature rejections by offering voters a clear mechanism by which to ensure their vote is counted. Without this added procedure, Defendants suggest voters could ensure their vote is counted by voting early or the day of the election in person, even if they are not sure whether their absentee ballot has been counted . This is certain to lead to confusion for the voter themselves, for poll workers, and for others. Purcell does not mandate us to rubber- stamp such a warped outcome. Moreover, even if this added mechanism somehow prompted voter confusion, it would be far from widespread. As Defendants have tirelessly repeated, absentee ballot rejections are relatively rare. Defendants have not presented any cogent argument for why these rare occurrences would lead to the sort of voter confusion that would mandate leaving in place an otherwise constitutionally inadequate procedure. Aftеr all, there is *52 no reason to think most voters will even become aware of the absentee ballot curing system if they are not one of the relative few who have their absentee ballots rejected.
Similarly, I do not think Plaintiffs’ requested relief disincentivizes voter turnout. To the contrary, I think it more likely that it will increase the number of proper votes counted. Specifically, it seems to me that absentee voters in Tennessee who receive signature rejection notices are unlikely to make use of the alternative voting methods that might be available to them even if they were to receive notice in time that their ballots were rejected. Absentee voters in Tennessee must qualify as such, in many cases because they are unable to vote in person, at least without seriously risking their health and safety during the COVID-19 pandemic. And having their absentee ballots rejected for perceived signature issues is likely to lead to frustration and a lack of confidence in their state’s electoral process as much as anything else.
To quote Plaintiffs, “[t]he Purcell doctrine . . . is not a magic wand that prevents voters from obtaining relief in an election year.” Appellants’ Br. at 49. Rather, it is an equitable doctrine that mandates that we consider concerns unique to election cases. Those considerations would not warrant withholding Plaintiffs’ requested relief of an opportunity to timely cure perceived signature issues. The COVID-19 pandemic has upended American life in countless ways. In Tennessee, one of those ways is an expected surge in absentee voting, which has shone the spotlight on heretofore unscrutinized aspects of Tennessee’s absentee voting system. Having concluded that one of those aspects—the state’s signature verification procedure—is likely constitutionally inadequate in failing to provide an opportunity to cure, I do not think Purcell would have prevented us from acting. Indeed, the equities favor the issuance of a preliminary injunction, and the district court erred in refusing it. The majority—in failing to even reach the merits—irreparably compounded that mistake.
VI.
“While I am saddened, I am not surprised by today’s ruling.”
Warshak v. United States
,
532 F.3d 521, 538 (6th Cir. 2008) (en banc) (Martin, J., dissenting). That is because many
federal courts—more specifically, many federal courts of review—have sanctioned a systematic
effort to suppress voter turnout and undermine the right to vote. Rarely does this have anything
*53
to do with the merits of the case. No, thе effort has not been so bold as that. Most often,
Purcell
provides the cover—a convenient court-made doctrine that provides plausible deniability
sounding in vague cries of “confidence in the electoral process.”
See Purcell
, 549 U.S. at 4.
Today, however, standing is the shroud of choice. Whatever the disguise, the result is the same.
Hiding behind closed courthouse doors does not change the fact that ruling by ruling, many
courts are chipping away at votes that ought to be counted. It is a disgrace to the federal courts’
foundational role in ensuring democracy’s function, and a betrayal to the persons that wish to
participate in it fully.
See Wesberry v. Sanders
,
On its own, today’s ruling may not—likely
will
not—change the course of this election.
But it is another drop in the bucket that is the degradation of the right to vote in this country.
See, e.g.
,
Raysor
, 140 S. Ct. at 2600 (“This Court’s order prevents thousands of otherwise
eligible voters from participating in Florida’s primary election simply because they are poor.”)
(Sotomayor, J., dissenting);
Republican Nat’l Comm.
,
I dissent.
Notes
[1] Unaltered, the statute reads: “Upon receipt by mail of the absentee ballot, the administrator shall open only the outer envelope and compare the voter’s signature on the application with the voter’s signature on the appropriate registration record.” Tenn. Code § 2-6-202(g) (emphasis added). We agree with the defendants that in context the statute is referring to the affidavit on the inner envelope. The plaintiffs do not suggest this apparent error is significant.
[2] On September 29, 2020, while this interlocutory appeal was pending, the district court dismissed Plaintiff Kendra Lee, who was not a party to this appeal, without prejudice at her request.
[3] Plaintiffs also sued the Shelby County District Attorney General in her official capacity seeking to enjoin her from enforcing a separate section of the Tennessee law. She is not involved in thе signature verification process.
[4] The plaintiffs make the barest of arguments that the remaining individual Plaintiff, Sekou Franklin, is likely to have standing of his own accord. Because this argument was not raised below and was only raised on appeal in a footnote in the plaintiffs’ reply brief, we decline to address it.
[1]
Plaintiffs count at least 30,000 members between them.
See
R. 40-6 (MCLC Decl. at ¶ 4) (Page ID #1568
(20,000 members); R. 40-5 (Tennessee NAACP Decl. at ¶ 11) (Page ID #1556) (10,000 members). Assuming one
third of those members (10,000) will vote absentee by mail, then it is reasonably likely somewhere around nine of
Plaintiffs’ members will have their ballots rejected for signature invalidity. At least some of those rejections are
likely to be erroneous according to the unrefuted opinion of Plaintiffs’ expert, who opined that untrained
comparisons are highly likely to result in erroneous rejections. R. 40-4 (Mohammed Decl. I at ¶¶ 21–23, 28–37)
(Page ID #1535–45); R. 54-7 (Mohammed Decl. II at ¶¶ 4–6) (Page ID #2312). I chose this rough one-third
estimate based on Tennessee’s own evidence that over 30% of the state’s registered voters are over the age of sixty,
thus qualify to vote absentee, Tenn. Code § 2-6-201(5)(A), and have a strong incentive to do so.
See
R. 40-2 (Doshi
Decl., Ex. 4 at 46) (Page ID #260). Of course, not all of those individuals will vote absentee by mail. But the 30%
number represents just one of the nine classes (not to mention further sub-classes) of Tennesseans who are
statutorily eligible to vote absentee by mail, including the significant-but-unknown number of Tennesseans who
qualify under the new interpretation rendering those at high risk for COVID-19 and their caretakers eligible to vote
absentee by mail.
See
Tenn. Code § 2-6-201;
Fisher v. Hargett
,
[2]
The Supreme Court has not since limited this principle, as Defendants assert. In
Summers v. Earth Island
Institute
, the case Defendants point to as abrogating
Sandusky
, the Supreme Court faulted an environmental
organization for failing to identify a specific member who would be injured by the application of the regulation in
question to particular national forests.
See
555 U.S. 488, 494–95 (2009). But there, the organization had a
straightforward way to identify specific members who would be injured by the regulation—offering evidence that
the member intended to visit the impacted forests.
See id.
Here, in contrast, there is no dispute that a significant
proportion of Plaintiffs’ membership will vote, there is simply the unanswerable question as to which of them will
have their ballots erroneously rejected.
Summers
, accordingly, is no bar.
See also Nat’l Council of La Raza v.
Cegavske
,
[3] The majority suggests—citing no authority—that the only injury that would satisfy the standing inquiry would be the state’s wholesale denial of a member’s ability to vote. See Maj. Op. at 11. Nonsense. The erroneous rejection of a validly cast absentee ballot is plainly a concrete, particularized, and actual or imminent injury sufficient to demonstrate standing.
[4]
The majority faults Plaintiffs for failing to present evidence that one of their members has had their
absentee ballot erroneously rejected in the past, analogizing to the plaintiff in
Lyons
, who had presented that
evidence the LAPD had previously used a chokehold on him in the past. Maj. Op. at 11–12. The majority’s
suggestion is that a plaintiff cannot have standing to seeking forward-looking injunctive relief unless they have
suffered a past injury. This is absurd. Nothing in the law of standing—which allows suits seeking injunctive relief
upon a showing of an “imminent” injury and the possibility of “future harm”—supports the majority’s careless
suggestion.
See Grendell
,
[5]
Commensurate with the brevity of Defendants’ argument that Plaintiffs lack prudential standing, I will
briefly address it here. Given that Plaintiffs are asserting the rights of their members, they have plainly established a
“close relationship” justifying their bringing suit.
Cf. Fair Elections Ohio
,
[6] Noting that there was no need to carry on after their conclusion that Plaintiffs “failed to show a substantial likelihood of establishing standing,” the majority nevertheless offers musings on a few merits issues under the guise of “provid[ing] limited commentary to guide the district court in the ultimate resolution of various issues in this case.” Maj. Op. at 13. The question of which standard to apply to Plaintiffs’ procedural due process claim is one of those the majority deigned to pass upon, although its musings on this question are particularly lackluster. The majority simply notes the existence of the two tests and informs the district court it will need to choose between them. Maj. Op. at 13–15. This does nothing to “guide” the district court—it is the equivalent of directions that tell you that there is a fork in the road but not which prong to take.