Memphis A. Philip Randolph Inst. v. Hargett

978 F.3d 378

MEMPHIS A. PHILIP RANDOLPH INSTITUTE; The Equity Alliance; Free Hearts; The Memphis and West Tennessee AFL-CIO Central Labor Council; The Tennessee State Conference of the NAACP; Sekou Franklin, Plaintiffs-Appellants,

v.Tre HARGETT ; Mark Goins; Amy P. Weirich, Defendants-Appellees.

No. 20-6046

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 15, 2020

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. Id. § 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 for persons with special vulnerability to COVID-19." See Fisher v. Hargett , 604 S.W.3d 381, 385 (Tenn. 2020) ; Appellees' Br. at 6–7.

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. Id. § 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 administrator shall open only the outer envelope and compare the voter's signature on the [affidavit¹ ] 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 verification 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. Id. §§ 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 election² 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, 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 Tennessee³ —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 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...