Ashe v. Hargett

1

VICTOR ASHE, et al., Plaintiffs, v. TRE HARGETT, et al., Defendants.

No. 3:23-cv-01256

United States District Court, M.D. Tennessee, Nashville Division

March 4, 2024

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE.

Plaintiffs brought this action against Defendants^[1] challenging the constitutionality of both Tenn. Code Ann. § 2-7-115(b) (“Section 115(b)”) and Tenn. Code Ann. § 2-7-115(c) (“Section 115(c)”) (collectively “Sections 115(b) and (c)”). Specifically Plaintiffs allege that Section 115(b) is unconstitutionally vague in violation of Plaintiffs' right to due process of law under the Fourteenth Amendment to the United States Constitution, and that Sections 115(b) and (c) both deter voting and chill their freedom of political speech in violation of the First and Fourteenth Amendments to the United States Constitution. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants from enforcing Sections 115(b) and (c).

Pending before the Court is the motion (Doc. No. 31 “Motion”) filed by Tre Hargett, Tennessee Secretary of State (“Hargett”), Mark Goins Tennessee Coordinator of Elections (“Goins”), and Jonathan Skrmetti, Tennessee Attorney General (“Skrmetti”) (collectively “Defendants”) to dismiss the claims against it set forth in the Complaint (Doc. No. 1) filed by Victor Ashe (“Ashe”), Phil Lawson (“Lawson”), and the League of Women Voters of Tennessee (“the League”) (collectively, “Plaintiffs”). Defendants filed a memorandum (Doc. No. 32, “Memo”) in support of the Motion. Plaintiffs filed a response (Doc. No. 34, “Response”) in opposition, to which Defendants filed a reply (Doc. No. 36, “Reply”).

For the reasons stated herein, the Motion (Doc. No. 31) will be granted.

FACTUTAL ALLEGATIONS^[2]

Ashe and Lawson are residents of, and voters registered in, Knox County, Tennessee. (Id. at ¶¶ 15-16.) The League is a non-profit, non-partisan political organization whose mission is to empower voters and defend democracy. (Id. at ¶ 17). The League accomplishes this mission in part by helping Tennessee citizens register to vote, educating voters about the issues, and encouraging voters to be active participants in democracy by engaging with elected officials and their policy decisions. (Id. at ¶ 17).

While as a general matter Tennesseans must register to vote in order to vote, they do not and cannot register as members of any party. (Id. at ¶ 26). Instead, when the state holds primary elections, a would-be voter who otherwise is eligible to vote must select at the polling place which party's ballot (e.g., Democratic or Republican) he or she intends to fill out. (Id.). In a given primary, no voter may fill out a ballot for more than one party. (Id.). Once a voter has made his or her selections and deposited his or her ballot, the voter's choice of party ballot is marked and maintained as public record. (Id.). Since there are no formal party voter rolls, voters may (and often do) switch to vote in a different party's primary from one election to the next. (Id.).

Ostensibly to deter voting by supporters of one political party in the primary election of another political party (i.e., “cross-over voting”), the Tennessee State Legislature passed Sections 115(b) and (c) Section 115(b). Section 115(b), signed into law in 1972, requires that a person seeking to vote in a particular party's primary election be a “bona fide member of and affiliated with” that party or “declare[ ] allegiance” to that party at the time the voter seeks to vote.^[3] (Id. at ¶¶ 22, 28-30). Failure to do so may result in criminal prosecution. (Id. at ¶ 30). Section 115(c), enacted in May 2023, requires that the officer of elections at each polling place post prominent notices to warn voters that they will be subject to prosecution if they vote in the primary of a particular party but neither are a “bona fide member of or affiliated with that political party” nor “declare allegiance to that party” (i.e., if they do not comply with either of the alternative requirements of Section 115(b) for voting on that party's primary). (Id. at ¶¶ 34-35).

The relevant portion of Section 115(c) states:

(1) On primary election days, a sign that is a minimum of eight and one-half inches by eleven inches (8.5 "x11") with a yellow background and bold, black text containing the following language must be posted in each polling place:

It's the Law! Please Read... It is a violation of Tennessee Code Annotated, Section 2-7-115(b), and punishable as a crime under Tennessee Code Annotated, Section 2-19-102 or Section 2-19107, if a person votes in a political party's primary without being a bona fide member of or affiliated with that political party, or to declare allegiance to that party without the intent to affiliate with that party.

(2) The officer of elections at each polling place shall ensure that the sign prescribed by subdivision (c)(1) is posted in a prominent, highly visible location within the polling place.

Tenn. Code Ann. § 2-7-115(c). (Doc. No. 32 at 2.).

As noted in Section 115(c), violation of Section 115(b) is punishable as a crime under Tenn. Code Ann. §§ 2-19-102 and 2-19-107. (Doc. No. 1 at ¶ 35). Section 2-19-107 makes it a felony, for a person who knows that he or she is not entitled to register or vote under Title 2, to register or vote (or attempt to do so) intentionally.^[4] (Id. at ¶ 32). Thus, a violation of Section 115(b) amounts to a felony only if the violator intentionally registers or votes (or attempt to do so) despite knowing that he or she is not entitled to register or vote under Section 115(b).^[5] (Id.). Section 2-19102, by contrast, makes it a misdemeanor for a person either to knowingly do any act that is prohibited by Title 2 of the Tenn. Code Ann. (which includes Section 115(b)) or to knowingly fail to do any act that he or she is required to do by Title 2 (including, as noted, Section 115(b)).^[6] (Id. at ¶¶ 31-32).

Despite the fact that there have been no known prosecutions under Section 115(b) in the roughly 50 years since it became law, Plaintiffs allege that Defendants, along with other state officials, have recently indicated their intent to begin enforcing it via prosecution.^[7] (Doc. No. 1 at ¶¶ 39-42). Moreover, Plaintiffs claim that because no statutory definitions are provided for the terms “bona fide member of,” “affiliated with,” or “allegiance to” a political party, Sections 115(b) and (c) are void for vagueness under the Fourteenth Amendment. (Id. at ¶¶ 78-83). Plaintiffs further claim that “[b]y combining a prominently threatening sign with an impossibly vague law,” Sections 115(b) and (c) violate their rights under the First Amendment “to engage in the political process and to exercise their fundamental right to vote.” (Id. at ¶¶ 92-95).

Plaintiffs seek a declaration from this Court that Sections 115(b) and (c) are (i) void for vagueness under the Fourteenth Amendment, and (ii) overbroad in violation of the Free Speech Clause of the First Amendment's. (Id. at 19). Additionally, Plaintiffs seek an injunction^[8]prohibiting Defendants from enforcing Sections 115(b) and (c).

Via the instant Motion, Defendants seek dismissal of this action pursuant to Fed.R.Civ.P. 12(b)(1) and (6) on grounds that Plaintiffs lack standing to sue and that Plaintiffs' claims are barred by sovereign immunity, laches, and the applicable statute of limitations. (Doc. No. 32 at 1). For the reasons stated below, the Court concludes that it is devoid of subject-matter jurisdiction because Plaintiffs lack standing to sue. This conclusion pretermits the Court's consideration of any other aspects of this case. Accordingly, the Court will decline to consider Defendants' other arguments in favor of dismissal, including arguments that the Court lacks subject-matter jurisdiction for additional reasons and that Plaintiffs have failed to state a claim upon which relief may be granted.

LEGAL STANDARD

Rule 12(b)(1) “provides for the dismissal of an action for lack of subject matter jurisdiction.” Cartwright v Garner, 751 F.3d 752, 759 (6th Cir. 2014). “Subject matter jurisdiction is always a threshold determination.” Am. Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007). “As always, the party invoking federal jurisdiction has the burden to prove that jurisdiction.” Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015) (citing Russell v. Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015)). Thus, “where subject matter jurisdiction is challenged under Rule 12(b)(1), as it was here, the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Wayside Church v. Van Buren Cnty., 847 F.3d 812, 817 (6th Cir. 2017) (quoting Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)).

There are two types of motions to dismiss for lack of subject-matter jurisdiction: facial and factual attacks. Gentek Bldg. Prods., Inc. v. Sherman-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack questions merely the sufficiency of the pleading. When reviewing a facial attack, a district court takes the allegations in the complaint as true. Id. If those allegations establish federally cognizable claims, jurisdiction exists. Id. A factual attack instead raises a factual controversy concerning whether subject-matter jurisdiction exists. Id.

Where there is a factual attack on the subject-matter jurisdiction of the court under Fed.R.Civ.P. 12(b)(1), no presumptive truthfulness applies to the complaint's allegations instead, the court must weigh the conflicting evidence to arrive at the factual predicate that subject-matter jurisdiction does or does not exist. Gentek Bldg. Products, Inc., 491 F.3d at 330. “[T]he district cour...