Lichtenstein v. Hargett

83 F.4th 575

Jeffrey LICHTENSTEIN; Memphis and West Tennessee AFL-CIO Central Labor Council; Tennessee State Conference of the NAACP; Memphis A. Philip Randolph Institute; Free Hearts, Plaintiffs-Appellants, v. Tre HARGETT, in his official capacity as Tennessee Secretary of State; Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee; Steven John Mulroy, in his official capacity as District Attorney General for Shelby County, Tennessee, Defendants-Appellees.

No. 22-5028

United States Court of Appeals, Sixth Circuit

Argued: October 27, 2022

Decided and Filed: October 5, 2023

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:20-cv-00736—Eli J. Richardson, District Judge.

ARGUED: Danielle Lang, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellants. Clark Lassiter Hildabrand, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. ON BRIEF: Danielle Lang, Molly E. Danahy, Jonathan, Diaz, CAMPAIGN LEGAL CENTER, Washington, D.C., Jon M. Greenbaum, Ezra Rosenberg, Pooja Chaudhuri, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., William L. Harbison, Lisa Katherine Helton, Christopher C. Sabis, SHERRARD ROE VOIGT & HARBISON PLC, Nashville, Tennessee, for Appellants. Janet M. Kleinfelter, Alexander S. Rieger, Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. Kristin C. Cope, O'MELVENY & MYERS, LLP, Dallas, Texas, Charlotte Davis, PUBLIC INTEREST LEGAL FOUNDATION, Indianapolis, Indiana, for Amici Curiae.

Before: McKEAGUE, WHITE, and MURPHY, Circuit Judges.

MURPHY, J., delivered the opinion of the court in which McKEAGUE, J., joined. WHITE, J. (pp. 604-15), delivered a separate dissenting opinion.

OPINION

MURPHY, Circuit Judge.

Since 1979, Tennessee has made it a crime for anyone other than election officials to distribute the State's official form for applying to vote absentee. During much of this time, Tennessee kept close guard of this form to deter fraud. But election officials now make the form widely available online so that eligible voters may more easily apply. According to the Plaintiffs, this change has rendered the ban on distributing the application form "outdated." The Plaintiffs want to hand out this form while they encourage absentee voting at their get-out-the-vote drives. They allege that the First Amendment gives them the right to do so. Because they seek to distribute the form while expressing a political message, they argue, we must subject the ban to strict scrutiny. At the least, they say, we must evaluate the ban using the so-called "Anderson-Burdick" balancing test that applies to some election challenges.

We disagree on both fronts. Tennessee's ban prohibits an act: distributing a government form. This act qualifies as conduct, not speech. Admittedly, the First Amendment provides some protection to "expressive conduct." But strict scrutiny does not apply to Tennessee's ban because it neutrally applies no matter the message that a person seeks to convey and because it burdens nobody's ability to engage in actual speech. We have also never extended Anderson-Burdick's balancing test to this sort of speech claim. At most, the Supreme Court's lenient First Amendment test for neutral laws that regulate conduct applies here. And because the ban survives this nondemanding test, we affirm the district court's dismissal of the Plaintiffs' complaint.

I.

A.

Tennessee permits all voters to vote early in person up to 20 days before most elections. Tenn. Code Ann. § 2-6-102(a)(1).

But only a subset of voters may vote absentee through the mail. Id. § 2-6-201. The list of eligible absentee voters includes students, voters over 60, the hospitalized or disabled, and voters who will remain away from their home county during the voting period. Id. § 2-6-201(1)-(3)(A), (5). To vote absentee, a voter must "request an absentee ballot" from a county election commission within a certain time before the election. Id. § 2-6-202(a)(1).

Over the years, Tennessee has made it easier for eligible voters to vote absentee. Historically, if a voter sent a written request for an absentee ballot to a county election commission, the commission would treat this writing "as a request for an application for absentee ballot." 1979 Tenn. Pub. Acts 687, 690. A state official created the official application "forms." Id. To receive an absentee ballot, the voter would need to fill out this second document—the official application. Id. at 691. Tennessee limited access to this form. An election commission generally could send only one form to any voter. Id. at 690-91. The State also made it "a felony for any private person to supply an application for absentee ballot to any person by any means whatsoever." Id. at 691.

Tennessee simplified the absentee-voting process in 1994. 1994 Tenn. Pub. Acts 633, 637-39 (creating Tenn. Code Ann. § 2-6-202). Today, a voter may submit both a written request for an application and the official application to an election commission "by mail, facsimile transmission or e-mail with an attached document that includes a scanned signature." Tenn. Code Ann. § 2-6-202(a)(3). And if a voter's mere "request" for an application contains several items—including the voter's identifying information and the reason the voter wants to vote absentee—that "request serves as an application" itself. Id. § 2-6-202(a)(3)(A)-(G). This change eliminated the need for every voter to follow a two-step process by submitting a "request" for an application to vote absentee followed by the official "application." If the voter's request includes all required information, an election commission will now simply mail the voter the absentee ballot. Id. § 2-6-202(b). If not, the commission will send the voter the official application form. Id.

A state official still must provide each county election commission with the official "forms for applications for ballots or approve the usage of a county's forms." Id. § 2-6-202(c)(1). But Tennessee no longer keeps close guard of these government forms. State and local officials now post them "online," so any person may freely "download and print" them. Compl., R.1, PageID 7. Tennessee also allows a voter to ask someone else to fill out a request for an application form or the form itself as long as the voter signs these documents. Tenn. Code Ann. § 2-6-203.

At the same time, a county election commission still may not provide more than one official absentee-ballot application form to a voter who requests one unless the voter states that a prior form has been "spoiled" or has not been received. Id. § 2-6-202(c)(2). And Tennessee law still prohibits everyone else from distributing these official forms: "A person who is not an employee of an election commission commits a Class E felony if such person gives an application for an absentee ballot to any person." Id. § 2-6-202(c)(3).

Soon after the 1994 changes, an election official asked the Tennessee Attorney General for an opinion about the scope of this ban on distributing application forms. Tenn. Op. Att'y Gen. No. 95-003, 1995 WL 14087, at *1 (1995). A debate had arisen over whether the ban covered the distribution of privately made (and unofficial) requests for applications if those template documents included blank sections for the required information that would allow them to serve as unofficial applications under the recent amendments. See Tenn. Code Ann. § 2-6-202(a)(3). The Attorney General narrowly interpreted the ban in § 2-6-202(c)(3) to bar only the distribution of the official forms—not these "request" documents. 1995 WL 14087, at *3-4.

This narrow view led "various groups" to mass produce standard "request" documents that contained all required information to serve as applications and provide these "requests" to voters. Memphis A. Phillip Randolph Inst. v. Hargett, 478 F. Supp. 3d 699, 704 (M.D. Tenn. 2020). That development concerned election administrators. Id. at 704-05. Some voters (including the elderly) who received these unofficial "request" documents thought they needed to fill them out even to vote at the polls. Id. at 705. But once they completed the request, these voters could not vote in person. Id. In 2002, Tennessee responded to these voter-confusion issues. Id. at 704-05. It added a separate ban that barred parties from distributing request forms for absentee-ballot applications: "A person who is not an employee of an election commission commits a Class A misdemeanor if such person gives an unsolicited request for application for absentee ballot to any person." 2002 Tenn. Pub. Acts ch. 698, at 1 (adding Tenn. Code Ann. § 2-6-202(c)(4)). Unlike the ban on the distribution of the official application forms in § 2-6-202(c)(3), this ban more narrowly applies to the unsolicited distribution of privately created requests.

B.

Today's suit involves only the ban on the distribution of the official application forms in § 2-6-202(c)(3) (what we will call "paragraph (c)(3)"). The five organizational Plaintiffs—the Memphis and West Tennessee AFL-CIO Central Labor Council (Labor Council), the Tennessee State Conference of the NAACP, the Equity Alliance, the Memphis A. Philip Randolph Institute (APRI), and Free Hearts—engage in voter-outreach efforts as part of their diverse missions. Compl., R.1, PageID 3-6. For instance, the Labor Council and the NAACP regularly educate their thousands of members about the voting process and encourage them to vote. Id., PageID 3-4. Similarly, APRI "sponsors voter education and Get-Out-The-Vote programs in the community." Id., PageID 5. The individual Plaintiff, Jeffrey Lichtenstein, likewise undertakes "voter advocacy and engagement efforts" in his role as the Labor Council's Executive Secretary. Id., PageID 2.

According to the Plaintiffs, their voter-outreach efforts sit "at the core of [their] political speech and advocacy...