Memphis A. Philip Randolph Inst. v. Hargett, 20-6141

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: JULIA SMITH GIBBONS, Circuit Judge.
• Citation: 2 F.4th 548
• Parties: MEMPHIS A. PHILIP RANDOLPH INSTITUTE; The Equity Alliance; Free Hearts ; Memphis and West Tennessee AFL-CIO Central Labor Council; The Tennessee State Conference of the NAACP; Sekou Franklin, Plaintiffs-Appellees, v. Tre HARGETT, in his official capacity as Secretary of State of the State of Tennessee; Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee; Amy P. Weirich, in her official capacity as District Attorney General for Shelby County, Tennessee, Defendants-Appellants.
• Docket Number: No. 20-6141,20-6141
• Decision Date: 22 June 2021

2 F.4th 548

MEMPHIS A. PHILIP RANDOLPH INSTITUTE; The Equity Alliance; Free Hearts ; Memphis and West Tennessee AFL-CIO Central Labor Council; The Tennessee State Conference of the NAACP; Sekou Franklin, Plaintiffs-Appellees,
v.
Tre HARGETT, in his official capacity as Secretary of State of the State of Tennessee; Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee; Amy P. Weirich, in her official capacity as District Attorney General for Shelby County, Tennessee, Defendants-Appellants.

No. 20-6141

United States Court of Appeals, Sixth Circuit.

Argued: December 15, 2020
Decided and Filed: June 22, 2021

ARGUED: Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Danielle Lang, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellees. ON BRIEF: Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Danielle Lang, Jonathan Diaz, Molly Danahy, Ravi Doshi, Caleb Jackson, CAMPAIGN LEGAL CENTER, Washington, D.C., Ezra D. Rosenberg, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., for Appellees.

Before: MOORE, GIBBONS, and READLER, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which READLER, J., joined. READLER, J. (pp. 561–64), delivered a separate concurring opinion. MOORE, J. (pp. 564–76), delivered a separate dissenting opinion.

JULIA SMITH GIBBONS, Circuit Judge.

2 F.4th 553

This is the third time these parties have appeared before this panel in a Tennessee election law dispute. This time, defendants appeal the district court's order granting plaintiffs a preliminary injunction enjoining the enforcement of a law preventing first-time voters from voting by mail. We previously denied defendants’ motion to stay the injunction pending this appeal. However, after the benefit of full briefing and oral argument, we now vacate the preliminary injunction.

I.

In the months prior to the November 2020 elections, there was increased attention placed on absentee voting due to the COVID-19 pandemic. Tennessee allows several categories of voters to vote absentee, including those who will be outside of their registered county during the election period, persons over 60, and those who are "hospitalized, ill or physically disabled, and because of such condition, ... unable to appear at the [their] polling place on election day." Tenn. Code Ann. § 2-6-201. Tennessee has acknowledged that the latter category includes "persons with special vulnerability to COVID-19 or who are caretakers of persons with special vulnerability to COVID-19." Fisher v. Hargett , 604 S.W.3d 381, 393 (Tenn. 2020).

First-time voters who register by mail or online, however, cannot vote absentee even if they fall into one of the approved categories, with limited exceptions. Tenn. Code Ann. § 2-2-115(b)(7). These first-time voters must vote in person so that they can present a form of identification. Id. Tennessee claims this requirement is necessary to prevent fraudulent voting. Because individuals do not present a form of photo identification when registering to vote by mail, Tennessee argues that allowing first-time voters to vote by mail will lead to "ghost voting" where the signatures on the voter's registration and absentee ballot match but the state cannot verify the voter's identity.

On May 1, 2020, plaintiffs—two individuals registered to vote in Tennessee and five Tennessee organizations—brought this lawsuit challenging several Tennessee voting laws. Defendants are three Tennessee government officials involved in election enforcement. On June 12, 2020, Plaintiffs amended their complaint and added a claim contesting Tennessee's first-time

2 F.4th 554

voter restriction under Tenn. Code Ann. § 2-2-115(b)(7). That same day, they filed a motion for preliminary injunction seeking to enjoin the enforcement of § 2-2-115(b)(7).

On September 9, 2020, the district court granted plaintiffs’ motion for a preliminary injunction as to the first-time voter restriction and issued an order enjoining the enforcement of § 2-2-115(b)(7). Defendants filed a motion to stay the injunction, and a motion for reconsideration. The district court denied both motions.

Defendants then filed a notice of appeal, and a motion to stay the preliminary injunction in this court. We previously denied the motion to stay, and now consider the merits of the preliminary injunction.

II.

When deciding whether to grant a preliminary injunction, courts must balance four factors: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction." Am. Civil Liberties Union Fund of Mich. v. Livingston County , 796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn , 668 F.3d 814, 818–19 (6th Cir. 2012) ). "These factors are not prerequisites, but are factors that are to be balanced against each other." Overstreet v. Lexington-Fayette Urban Cnty. Gov't , 305 F.3d 566, 573 (6th Cir. 2002). "[T]he party seeking a preliminary injunction bears the burden of justifying such relief." Livingston County , 796 F.3d at 642 (alteration in original) (quoting McNeilly v. Land , 684 F.3d 611, 615 (6th Cir. 2012) ); see also Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp. , 511 F.3d 535, 546 n.2 (6th Cir. 2007) ("[I]n seeking a preliminary injunction, a federal plaintiff has the burden of establishing the likelihood of success on the merits.").

Whether the movant has a strong likelihood of success on the merits is a question of law, which this court reviews de novo. Ammex, Inc. v. Wenk , 936 F.3d 355, 359-60 (6th Cir. 2019) (quoting City of Pontiac Retired Emps. Ass'n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam)). We review the "district court's ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief" for abuse of discretion. Schimmel , 751 F.3d at 430. Under the abuse-of-discretion standard, we will reverse the district court "if it improperly applied the governing law, used an erroneous legal standard, or relied upon clearly erroneous findings of fact." Id. We review the district court's factual findings for clear error. Ammex, Inc. , 936 F.3d at 360.

III.

"When a party seeks a preliminary injunction on the basis of a potential constitutional violation, ‘the likelihood of success on the merits often will be the determinative factor.’ " Schimmel , 751 F.3d at 430 (quoting Obama for Am. v. Husted , 697 F.3d 423, 436 (6th Cir. 2012) ). In addition to demonstrating a likelihood of success on the substantive claims, a plaintiff must also show a likelihood of success of establishing jurisdiction. Waskul v. Washtenaw Cnty. Cmty. Mental Health , 900 F.3d 250, 256 n.4 (6th Cir. 2018). If a plaintiff cannot show a likelihood of jurisdiction, then the court will deny the preliminary injunction. Id. Here, defendants raise two jurisdictional challenges: standing and mootness.

2 F.4th 555

A.

Article III of the Constitution limits the jurisdiction of federal courts to cases and controversies. U.S. Const. art. III, § 2; see also Lujan v. Defenders of Wildlife , 504 U.S. 555, 559–60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is a core component of this "case-or-controversy requirement of Article III." Lujan , 504 U.S. at 560, 112 S.Ct. 2130. To establish standing to sue, a plaintiff must show (1) an injury in fact that is (2) fairly traceable to the defendant's conduct and (3) likely to be redressed by a favorable judicial decision. Id. at 560–61, 112 S.Ct. 2130. A plaintiff asking for declaratory or injunctive relief must also "show actual present harm or a significant possibility of future harm." Grendell v. Ohio Sup. Ct. , 252 F.3d 828, 832 (6th Cir. 2001) (quoting Nat'l Rifle Ass'n of Am. v. Magaw , 132 F.3d 272, 279 (6th Cir. 1997) ). An organization may have standing either in its own right, Ne. Ohio Coal. for the Homeless v. Husted , 837 F.3d 612, 624 (6th Cir. 2016), or it may have associational standing on behalf of its members "when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit," Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). If one party has standing, then identical claims brought by other parties to the same lawsuit are also justiciable. See Ne. Ohio Coal. for the Homeless , 837 F.3d at 623.

Here, the district court found that one plaintiff, The Tennessee State Conference of the NAACP ("Tennessee NAACP"), had associational standing through a single member, Corey DeWayne Sweet, an individual resident of Tennessee. Memphis A. Phillip Randolph Inst. v. Hargett , 485 F. Supp.3d 959, 978-79 (M.D. Tenn. 2020). Sweet submitted two declarations before the district court. His first declaration...