Lichtenstein v. Hargett

• Citation: 489 F.Supp.3d 742
• Decision Date: 23 September 2020
• Docket Number: NO. 3:20-cv-00736,3:20-cv-00736
• Parties: Jeffrey LICHTENSTEIN, et al., Plaintiffs, v. Tre HARGETT, et al., Defendants.
• Court: United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee

489 F.Supp.3d 742

Jeffrey LICHTENSTEIN, et al., Plaintiffs,

v.Tre HARGETT, et al., Defendants.

NO. 3:20-cv-00736

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

Filed September 23, 2020

Christina R. Lopez, Christopher C. Sabis, Lisa K. Helton, William L. Harbison, Sherrard Roe Voight & Harbison, PLC, Nashville, TN, Danielle M. Lang, Ezra D. Rosenberg, Pooja Chaudhuri, Lawyers’ Committee for Civil Rights Under Law, Jonathan Diaz, Molly Danahy, Ravi Doshi, Campaign Legal Center, Washington, DC, for Plaintiff Jeffery Lichtenstein.

Christina R. Lopez, Christopher C. Sabis, Lisa K. Helton, William L. Harbison, Sherrard Roe Voight & Harbison, PLC, Nashville, TN, Ezra D. Rosenberg, Pooja Chaudhuri, Lawyers’ Committee for Civil Rights Under Law, Jonathan Diaz, Molly Danahy, Ravi Doshi, Campaign Legal Center, Washington, DC, for Plaintiffs The Memphis and West Tennessee AFL-CIO Central Labor Council, The Tennessee State Conference of the NAACP, The Equity Alliance, Memphis A. Phillip Randolph Institute, Free Hearts.

Alexander Stuart Rieger, Andrew B. Campbell, Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM OPINION AND ORDER

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court is Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 11, "Motion"). Via the Motion, Plaintiffs seek an injunction, pending final resolution of Plaintiffs’ claims, with respect to Tenn. Code Ann. § 2-6-202(c)(3) (hereinafter referred to, consistent with Plaintiffs’ nomenclature, as "the Law"), which provides: "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." In particular, Plaintiffs seek to enjoin Defendant Amy Weirich (who, unlike her two co-Defendants, has actual prosecutorial powers) from enforcing the Law and to enjoin Defendants Tre Hargett and Mark Goins from taking actions they apparently are authorized to take with respect to the Law, namely "referring for prosecution or investigation, or participating in any prosecution or investigation, of any alleged violations of" the Law.¹ (Doc. No. 11-1 at 2).² In essence, therefore, Plaintiffs are asking the Court to preliminarily enjoin enforcement of this criminal prohibition, based on their purported likelihood of success in showing that the Law is violative of their First Amendment rights to free speech and association.³

For the reasons set forth below, the Motion is denied.

PROCEDURAL BACKGROUND IN CASE NO. 374

The procedural history of a different lawsuit, Case No. 3:20-cv-00374, ("Case No. 374") brought in this Court by four of the five Plaintiffs herein, and still pending,⁴ is relevant context in the instant case. In Case No. 374, the plaintiffs therein ("MPRI plaintiffs") initiated that case by filing a complaint (Case No. 374, Doc. No. 1, "MPRI original complaint") on May 1, 2020, against the same three persons who are Defendants in the present case.⁵ On June 12, 2020, the MPRI plaintiffs filed an amended complaint (Case No. 374, Doc. No. 39, "MPRI amended complaint"), as well as a motion for a preliminary injunction (Case No. 374, Doc. No. 40, "MPRI motion") and a memorandum in support of the MPRI motion (Case No. 374, Doc. No. 43).

As they had in the Prayer for Relief in the MPRI original complaint (and MPRI amended complaint), MPRI plaintiffs requested in the MPRI motion preliminary injunctive relief with respect to, in pertinent part, Tenn. Code Ann. § 2-6-202(c)(4), which provides "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." The MPRI plaintiffs have not challenged, or sought any relief with respect to, the Law. Notably (and obviously), Tenn. Code Ann. § 2-6-202(c)(4) (hereinafter, "Paragraph (c)(4)"), though contained in the same code section as the Law, differs from the Law in two material ways: (1) it prescribes a misdemeanor rather than a felony; and (2) it prohibits (most people, including Plaintiffs and the MPRI plaintiffs) from giving to another person "an unsolicited request for application for absentee ballot" rather than "an application for an absentee ballot."⁶

The MPRI plaintiffs made clear why they (or at least four of the five of them who were organizational plaintiffs, i.e. , the same four organizational plaintiffs who are also plaintiffs in this case) would be injured by the enforcement of Paragraph (c)(4). In their briefing in support of the MPRI motion, the MPRI plaintiffs pointed to a document marked, in the Supplemental Declaration of Ravi Doshi (Case No. 374, Doc. No. 54-1) filed by the MPRI plaintiffs, as Exhibit 17 (Case No. 374, Doc. No. 54-2).⁷ The MPRI plaintiffs likewise pointed to a printout, filed as Exhibit 5 to the Declaration of Ravi Doshi (Case No. 374, Doc. No. 40-2 at 133), of Defendant Hargett's website linking to this form.⁸ MPRI plaintiffs then stated with no ambiguity, "It is precisely this official form that Organizational Plaintiffs seek to distribute." (Case No. 374, Doc. No. 54 at 17).

The Case No. 374 defendants filed a response in opposition to the MPRI motion on June 26, 2020, (Case No. 374, Doc. No. 46), wherein they asserted in pertinent part that the doctrine of laches should be applied to bar in its entirety the injunctive relief requested by the MPRI plaintiffs. After the MPRI plaintiffs filed a reply (Case No. 374, Doc. No. 54) in support of the MPRI motion on July 7, 2020, the Court issued an order agreeing in part with the Case No. 374 defendants; the Court denied the MPRI motion (based on laches) to the extent that it sought a preliminary injunction prior to the August 6 primary election, but not to the extent that it sought a preliminary injunction prior to the November 3 general election. Thus, the request for preliminary injunctive relief in advance of and in connection with the general election remained pending.

Subsequently, with respect to the MPRI plaintiffs’ request for a preliminarily injunction prior to the November 3 general election, the Court issued an order denying the MPRI motion insofar as it sought to preliminarily enjoin Paragraph (c)(4). Concisely recapped, the Court's reasoning for such denial essentially was that: (i) as explained by the MPRI plaintiffs themselves, they intended to distribute (unsolicited) only the above-described particular form ("Form"), which they believed constitutes a "request for [an] application for [an] absentee ballot" within the meaning of Paragraph (c)(4); (ii) the absence of an injunction prohibiting enforcement of Paragraph (c)(4) would irreparably injure the MPRI plaintiffs, if at all, only if enforcement of Paragraph (c)(4) would dissuade the MPRI plaintiffs from their plan to distribute the Form (unsolicited); (iii) the Form, however, is clearly not a "request for [an] application for [an] absentee ballot" within the meaning of Paragraph (c)(4), but rather an application for an absentee ballot within the meaning of the Law; (iv) the MPRI plaintiffs thus could not possibly suffer an injury from the non-enjoinment of Paragraph (c)(4), because the specified activity in which they sought to engage (unsolicited distribution of the Form), was not within the scope of the prohibition set forth in Paragraph (c)(4); and therefore (v) the MPRI plaintiffs could not possibly show the irreparable injury they were required to show in order to preliminarily enjoin the enforcement of Paragraph (c)(4).

Three days after the Court's August 11, 2020 issuance of that order, the MPRI plaintiffs promptly filed a motion to reconsider. The MPRI plaintiffs were convinced that the Court had made in that order a clear and fundamental error as to whether it was Paragraph (c)(4) or the Law that prohibits the conduct that the MPRI plaintiffs wished to undertake. The MPRI plaintiffs seemed to assume that the Case No. 374 defendants would readily, or at least necessarily, agree on this. But in fact the Case No. 374 defendants did no such thing, responding with the view that the Court had gotten it right and that the Form was indeed an application for an absentee ballot and thus covered by the Law and not Paragraph (c)(4). Agreeing with the MPRI defendants, in an order filed on August 21, 2020, the Court adhered firmly to its prior denial of the MPRI motion insofar as it sought to preliminarily enjoin enforcement of Paragraph (c)(4).

PROCEDURAL BACKGROUND IN THE INSTANT CASE

As far as the Court can tell, the four organizational plaintiffs who brought Case No. 374 no longer are contending that the Form is within the scope of Paragraph (c)(4). Instead, (at least temporarily) accepting that their beef is with the Law rather than Paragraph (c)(4), the four organizational plaintiffs (together with one individual, lead plaintiff Lichtenstein) filed the instant action. In pertinent part, Plaintiffs allege in their complaint:

16. This November, in light of the ongoing COVID-19 pandemic, a record number of Tennesseans are expected to vote absentee in the presidential election.

17. In order to do so, absentee-eligible voters will first need to apply for an absentee ballot from their county election commission, and return the completed form on or before October 5, 2020.

18. The application to vote by mail is made publicly-available online to download and print. One version of the application is available from the Secretary of State's website, and other versions, created by the State's various county election commissions and approved by the Secretary of State, are similarly available from the respective county election commissions’ websites.

19. Once the voter has obtained a printed copy of the application, the voter "may have anyone the voter chooses ... write out the voter's absentee voting by mail application except for the voter's signature or mark." Tenn. Code § 2-6-203.

(Doc. No. 1 at 7)....