Memphis A. Phillip Randolph Inst. v. Hargett

• Decision Date: 09 September 2020
• Docket Number: No. 3:20-cv-00374,3:20-cv-00374
• Citation: 485 F.Supp.3d 959
• Parties: MEMPHIS A. PHILLIP RANDOLPH INSTITUTE, et al. Plaintiffs, v. Tre HARGETT, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

485 F.Supp.3d 959

MEMPHIS A. PHILLIP RANDOLPH INSTITUTE, et al. Plaintiffs,

v.Tre HARGETT, et al., Defendants.

No. 3:20-cv-00374

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

Signed September 9, 2020

Order Denying Reconsideration Sept. 28, 2020

MEMORANDUM OPINION & ORDER

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court is Plaintiffs' Motion for Preliminary Injunction (Doc. No. 40, "Motion"). Via the Motion, Plaintiffs have sought to enjoin Defendants, pending final resolution of Plaintiffs' claims (brought under 18 U.S.C. § 1983), from enforcing several provisions of Tennessee's electoral laws and procedures, namely:

(1) 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."

(2) Tenn. Code Ann. § 2-2-115(b)(7), insofar as it provides that those who registered to vote in Tennessee by mail must "appear in person to vote in the first election the person votes in after such registration becomes effective."

(3) Tenn. Code Ann. §§ 2-6-202(g) and 2-6-204, insofar as they collectively require, as Plaintiffs put it, the "reject[ion of] absentee ballots on the basis of alleged signature verification deficiencies without first providing notice and an opportunity to cure[.]" (Doc. No. 39 at 34).

According to Plaintiffs, these respective aspects of Tennessee's voting rules are unconstitutional because they violate, respectively: (1) the First Amendment right to free speech and association; (2) the First Amendment right to vote; and (3) Fourteenth Amendment procedural due process and the First Amendment right to vote.¹

This Order is the last in a series of rulings that have been issued intermittently, as the Court has been able, so that the parties would know as soon as possible, in order to begin preparing for a likely upcoming appeal, the Court's view on particular issues likely to be the subject of appellate briefing. Herein, the Court will address Plaintiffs' request (2) above—i.e. , to preliminarily enjoin the enforcement of Tennessee's requirement that any person who registered to vote in Tennessee by mail—or online—² appear to vote in person in the first election in which the person votes after such registration becomes effective. See Tenn. Code Ann. § 2-2-115(b)(7). Plaintiffs have referred to this requirement for short primarily as the "First-Time Voter Restriction," (Doc. No. 43 at 24-26), and the Court will do likewise, albeit without the capitalization Plaintiffs generally employ for this term. And for a person to whom the first-time voter restriction applies, the Court will use the term "first-time, mail-registered voter," with the understanding that it applies to first-time voters who registered online as well first-time voters who registered by mail.

PROCEDURAL HISTORY IN THIS COURT

Plaintiffs initiated this action by filing a complaint ("original complaint") on May 1, 2020. (Doc. No. 1). Defendants filed an answer (Doc. No. 38) to the original complaint on June 11, 2020, and the next day, Plaintiffs filed an amended complaint (Doc. No. 39, "Amended Complaint"), as well as the Motion and a memorandum in support of the Motion (Doc. No. 43, "Plaintiffs' Brief"). In the Prayer for Relief in both the original complaint and the Amended Complaint, Plaintiffs requested preliminary (and permanent) injunctive relief virtually identical, for present purposes, to the relief they now request via the Motion. Plaintiffs did not actually move for preliminary injunctive relief, however, prior to filing the Motion on June 12, 2020.

Plaintiffs aptly described the context surrounding the Motion at the time it was filed:

On August 6, 2020, Tennessee will hold statewide primary and general elections. Three months later, on November 3, 2020, it will hold its general presidential election. Unlike any elections in modern memory, these elections will be held under the pall of an ongoing public health crisis that [had, as of the time of the filing of Plaintiffs' Brief,] already claimed the lives of over 112,000 Americans and forced immediate and dramatic changes to everyday life across the country—including in Tennessee. As a result of the pandemic, significantly more Tennesseans are expected to vote by mail this year than typically have in past elections. Most will do so for the first time.

(Plaintiffs' Brief at 4).³

Defendants filed a response (Doc. No. 46, "Response") in opposition to the Motion on June 26, 2020, and Plaintiffs filed a reply (Doc. No. 54, "Reply") in support of the Motion on July 7, 2020.

In their Response, Defendants asserted in pertinent part that the doctrine of laches should be applied to bar in its entirety the (preliminary) injunctive relief requested by Plaintiffs in the Motion. Agreeing in part, the Court issued an order (Doc. No. 55) denying the 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 seeks 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.

On August 11, 2020, the Court issued an order (Doc. No. 66) denying the Motion with respect to request (1) above, a decision to which the Court adhered in an Order (Doc. No. 73) denying Plaintiffs' motion (Doc. No. 68) to reconsider it. On August 28, 2020, the Court issued an Order (Doc. No. 77) denying the Motion with respect to request (3) above. Request (2) heretofore has remained pending but now hereby will be granted for the reasons set forth herein.

PROCEDURAL HISTORY OF RELEVANT STATE COURT LITIGATION

Meanwhile, relevant state-court litigation has transpired in two particular cases ("State-Court Cases") filed in Davidson County Chancery Court. Each of the State-Court Cases challenged the state's then-current construction of the eligibility requirements for absentee voting in Tenn. Code Ann. § 2-6-201(5)(C) and (D). An understanding of these cases is necessary for a proper understanding of the precise relief being requested via this particular aspect of the Motion.

As background, Tenn. Code Ann. § 2-6-201 sets forth a list of: (a) categories of voters who are lawfully permitted to vote absentee (i.e. , by mail);⁴ and (b) categories of situations which, if applicable to a specific voter, will enable the voter to lawfully vote absentee. See Tenn. Code Ann. § 2-6-201 ("A registered voter in any of the following circumstances may vote absentee by mail in the procedures outlined in this part ...."). Collectively, these categories, and the requirement that a person (and/or the situation applicable to the person) fit into a category in order to vote absentee, will be referred to herein as the "absentee eligibility criteria."

Two of the categories of persons authorized to vote absentee are described as follows:

(5) Persons Over 60--Persons Hospitalized, Ill or Disabled.

...

(C) The person is hospitalized, ill or physically disabled, and because of such condition, the person is unable to appear at the person's polling place on election day; or

(D) The person is a caretaker of a hospitalized, ill or disabled person.

Tenn. Code Ann. § 2-6-201(5)(C) & (D).

The first of the two State-Court Cases was filed on May 8, 2020 against state-official defendants (including Tre Hargett and Mark Goins, the lead Defendants in the instant case) by plaintiffs ("Fisher plaintiffs") other than the instant Plaintiffs. The second was filed a week later against state-official defendants (including, again, Hargett and Goins), again by plaintiffs ("Lay plaintiffs") other than the instant Plaintiffs. After the Chancery Court issued the preliminary injunction described below in favor of both groups of plaintiffs, the grant of that preliminary injunction was appealed directly to the Tennessee Supreme Court. After a consolidated oral argument, the Tennessee Supreme Court filed an opinion in both cases (styled as Fisher v. Hargett , 604 S.W.3d 381 (Tenn.2020) ), vacating the preliminary injunction—although not before the plaintiffs had extracted a significant concession from the State.

Fisher set forth in some detail the history of the State-Court Cases in Chancery Court. In pertinent part, it noted that the "Fisher plaintiffs alleged that the individual plaintiffs are all registered Tennessee voters who wish to vote by mail in the August 2020 and November 2020 elections due to the COVID-19 pandemic but who do not satisfy the statutory eligibility requirements for absentee voting by mail set forth in Tennessee Code Annotated section 2-6-201." Fisher ,604 S.W.3d at 388. The Fisher plaintiffs alleged that each of the three individual plaintiffs wished to vote absentee essentially because they feared—for various reasons, including medical conditions allegedly rendering certain plaintiffs especially vulnerable to COVID-19—that appearing in person at a polling site would increase his or her personal risk (and also perhaps the risk to society as a whole) of contracting or transmitting COVID-19. Id. With respect to the Memphis-based organizational plaintiff, #UpTheVote901, a volunteer organization devoted to educating voters and increasing voter registration and turnout, the Fisher plaintiffs "alleged that the current statutory eligibility requirements for absentee voting by mail will unduly burden the right to vote of certain of #UpTheVote901's members and have a chilling effect on voter turnout." Id. As further explained by the Tennessee Supreme Court:

The Fisher plaintiffs sought declaratory and injunctive relief to expand access to vote-by-mail procedures to all registered Tennessee voters who wish to vote absentee during the COVID-19 pandemic. They contended that, in the midst of the COVID-19 pandemic, restricting Tennesseans' vote-by-mail access to

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