Tenn. Conference of NAACP v. Lee

105 F.4th 888

TENNESSEE CONFERENCE OF THE NATIONAL ASSOCIATION FORTHE ADVANCEMENT OF COLORED PEOPLE, on behalf of itself and its members, Plaintiffs-Appellees, v. William Byron LEE, et al., Defendants,Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee;Tre Hargett, in his official capacity as Secretary of the State of Tennessee, Defendants-Appellants.

No. 24-5546

United States Court of Appeals, Sixth Circuit

Decided and Filed: June 28, 2024

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:20-cv-01039—William Lynn Campbell, Jr., District Judge.

ON MOTION: J. Matthew Rice, Philip Hammersley, Zachary Barker, Dawn Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. ON RESPONSE: Charles K. Grant, Denmark J. Grant, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Nashville, Tennessee, Blair S. Bowie, Alice C.C. Huling, Valencia Richardson, Ellen M. Boettcher, Kate Uyeda, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellees.

Before: BUSH, LARSEN, and MURPHY, Circuit Judges.

OPINION

PER CURIAM.

Tennessee law permits many convicted felons to vote, but it prohibits many others from exercising the franchise. When processing registration forms submitted by felons, then, state election officials must distinguish applicants who are eligible from those who are not. To facilitate this review, these officials require some felon applicants to submit records with their registration forms to confirm their eligibility. In this suit, the Tennessee Conference of the NAACP alleged that this so-called "Documentation Policy" for felon applicants violated the National Voter Registration Act (NVRA). A district court recently agreed and permanently enjoined the policy in the middle of the 2024 election cycle. Tennessee's Secretary of State and Coordinator of Elections seek a stay of this injunction pending appeal.

We grant the stay for two reasons. First, the injunction triggers the Supreme Court's "Purcell principle," which instructs federal courts not to disrupt state election rules close to an election. See Purcell v. Gonzalez, 549 U.S. 1, 4-5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). And here, the district court issued its injunction less than a month before the looming July 2 registration deadline for an August election. Second, the NAACP likely did not present enough evidence to prove its standing to challenge the Documentation Policy. The NAACP claimed that the policy forced it to divert its resources to help those convicted of felonies track down the records that they need to register. But the conclusory declaration that the NAACP used to support this theory appears to lack the "specific facts" that the NAACP needed to show its entitlement to summary judgment on this standing question. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted).

I

A

The Tennessee Constitution provides that the "right to suffrage" can be "denied" to a person "upon conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction." Tenn. Const. art. I, § 5 (emphasis added). The highlighted text requires the Tennessee General Assembly to identify the "infamous" crimes that will result in the loss of voting rights before the State may disenfranchise any person convicted of a crime. See Gaskin v. Collins, 661 S.W.2d 865, 867 (Tenn. 1983).

The General Assembly has taken a winding path to classifying the crimes that qualify as "infamous." Its evolving views can be divided into three periods. Before January 15, 1973, the General Assembly identified 21 specific crimes that would result in the loss of voting rights if a criminal judgment noted that the offense qualified as "infamous." See Crutchfield v. Collins, 607 S.W.2d 478, 480-82 (Tenn. Ct. App. 1980). Then, between January 15, 1973, and May 17, 1981, the General Assembly treated no felonies as "infamous." Yet this "grace" period did not last long. Since May 18, 1981, the General Assembly has reversed course by treating all felonies committed within the State as infamous. Falls v. Goins, 673 S.W.3d 173, 176 n.1, 179 (Tenn. 2023); Tenn. Code Ann. § 40-20-112. It has also started to treat federal and out-of-state felonies as disenfranchising if they would qualify as felonies under Tennessee law. See Tenn. Code Ann. § 2-19-143(2)-(3); Falls, 673 S.W.3d at 179.

At the same time, some convicted felons may seek to restore their voting rights. This restoration process has similarly evolved over time. From 1981 until 2006, most disqualified felons had to obtain a court order after completing their sentence or receiving a pardon. See Tenn. Code Ann. §§ 40-29-101, 2-19-143. Since 2006, most disenfranchised felons who were convicted after May 18, 1981 can restore their voting rights by obtaining a Certificate of Voting Rights Restoration. See Tenn. Code Ann. §§ 40-29-201 to 40-29-205; Falls, 673 S.W.3d at 179 & n.6. Before they may do so, though, the governor must have "pardoned" them or their "full rights of citizenship" must "have otherwise been restored as prescribed by law." Tenn. Code Ann. § 2-19-143(1); see also id. § 2-19-143(2)-(3). They also must have paid all required "restitution" to their victims and all required court costs. Id. § 40-29-202(b)(1)-(2). And they must be "current in all child support obligations." Id. § 40-29-202(c); see Falls, 673 S.W.3d at 183-84. If convicted felons meet these requirements, they can apply for a "voter registration card" using a "certificate of voting rights restoration form" that Tennessee's Coordinator of Elections prepares. Tenn. Code Ann. § 40-29-205; see Goins Decl., R.151-1, PageID 1092; Form, R.157-2, PageID 2719-20.

As a result of Tennessee's changing law, many individuals who have committed felonies may vote in the State. The district court identified five groups of eligible felons. See Tenn. Conf. of NAACP v. Lee, — F. Supp. 3d —, —, 2024 WL 1685554, at *18 (M.D. Tenn. Apr. 18, 2024). First, individuals remain eligible to vote if they were convicted of a felony before January 15, 1973, and the judgment does not identify their offense as one of the 21 infamous crimes at that time. Resp., R.181, PageID 2895. Second, individuals remain eligible to vote if they were convicted of their felony during the grace period between January 15, 1973 and May 17, 1981. Id. Third, individuals remain eligible to vote if a court has expunged their felony. Id., PageID 2917. Fourth, individuals remain eligible to vote if a court has placed them on judicial diversion in lieu of a criminal conviction. Id. And fifth, individuals convicted after May 1981 regain their eligibility to vote if the government has restored their voting rights. Id., PageID 2896.

B

The NVRA applies to Tennessee's processes for registering eligible felons to vote. Congress passed this statute under its power to regulate the "Times, Places, and Manner" of holding federal elections. U.S. Const. art. I, § 4, cl. 1; id. amend. XVII. Congress sought to streamline registration while ensuring that only eligible voters could vote. 52 U.S.C. § 20501(b). To make registering easier, it required States to allow voters to register in any of three ways: when applying for a driver's license, through the mail, or in person. See id. § 20503(a)(1)-(3); Arizona v. Inter Tribal Council of Ariz., Inc. (ITCA), 570 U.S. 1, 5, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013). This appeal concerns the forms that Tennessee uses for mail registration and the way that it processes those forms.

Registration Forms. The NVRA's mail-registration program identified two registration forms. 52 U.S.C. § 20505(a)(1)-(2). We will call the first of these forms the "Federal Form." The NVRA requires Tennessee to "accept and use" this form: "Each State shall accept and use the mail voter registration application form prescribed by" what is now the Election Assistance Commission (or EAC) "for the registration of voters in elections for Federal office." Id. § 20505(a)(1); see ITCA, 570 U.S. at 5 n.1, 133 S.Ct. 2247. This "standard" form looks the same for all States and lacks any space for applicants to identify prior felonies. ITCA, 570 U.S. at 5, 133 S.Ct. 2247; Fed. Form, R.156-11, PageID 2508-09. So an election official will not know if the applicant has prior convictions (or the dates or types of convictions) "from the face of the form itself." Resp., R.181, PageID 2909. That said, the Federal Form does have state-specific instructions that the EAC adopts with input from each State. See ITCA, 570 U.S. at 5-6, 133 S.Ct. 2247. These instructions alert applicants to the State's eligibility requirements and to whether they must submit other information. Id. As relevant here, the EAC's felony-related instructions for Tennessee provide:

To register in Tennessee you must: . . . not have been convicted of a felony, but if convicted, your eligibility to register and vote depends upon the crime you were convicted of and the date of your conviction. For more information about this process, call 877-850-4959 or visit https://sos.tn.gov/restoration.

Fed. Form, R.156-11, PageID 2509. Applicants must swear or affirm that they meet their State's "eligibility requirements" under penalty of perjury. Id., PageID 2508.

We will call the second NVRA-contemplated registration form the "State Form." The NVRA provides that, "[i]n addition to accepting and using the" Federal Form, "a State may develop and use a mail voter registration form that meets" certain identified requirements "for the registration of voters in elections for Federal office." 52 U.S.C. § 20505(a)(2); see id. § 20508(b). Tennessee's State Form has changed over time. Resp., R.181, PageID 2901. Through the November 2020 election, the State Form included the following statement concerning felony convictions: "To register to vote: . . . you must not have...