Millsaps v. Thompson

• Decision Date: 25 April 2001
• Docket Number: No. 00-5256,00-5256
• Citation: 259 F.3d 535
• Parties: (6th Cir. 2001) Martha L. Millsaps; Frank J. Conti; Rachel D. Conti, Plaintiffs-Appellants, v. Brook Thompson, in his official capacity as Tennessee Coordinator of Elections; Riley C. Darnell, in his official capacity as Secretary of State of Tennessee, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 535

259 F.3d 535 (6th Cir. 2001)

Martha L. Millsaps; Frank J. Conti; Rachel D. Conti, Plaintiffs-Appellants, v. Brook Thompson, in his official capacity as Tennessee Coordinator of Elections; Riley C. Darnell, in his official capacity as Secretary of State of Tennessee, Defendants-Appellees.

No. 00-5256

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 25, 2001

Decided and Filed: August 3, 2001

M. Miller Baker, McDERMOTT, WILL & EMERY, Washington, D.C., Cameron S. Hill, BAKER, DONELSON, BEARMAN & CALDWELL, Chattanooga, Tennessee, Michael S. Nadel, James Michael Lehmann, CARR, GOODSON & WARNER, Washington, D.C., for Appellants.

Michael W. Catalano, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

Before: RYAN and BATCHELDER, Circuit Judges; MATIA, District Judge. ^*

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Martha L. Millsaps, Frank J. Conti, and Rachel D. Conti, all of whom have previously voted in federal elections held in Tennessee and intend to do so again, brought suit under 42 U.S.C. §1983 alleging that Tennessee's early voting system conflicts with federal statutes that establish the first Tuesday after the first Monday in November in even-numbered years as election day for federal officeholders, dilutes their right to vote, and impedes their ability to participate in poll-watching programs. The complaint named the Tennessee Coordinator of Elections and the Secretary of State of Tennessee in their official capacities as defendants and sought declaratory and injunctive relief, costs, and attorneys' fees.

Plaintiffs promptly moved for summary judgment, and the defendants responded by seeking dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Following a hearing on the matter, the district court issued a memorandum opinion granting the defendants' motion, which it converted to one for summary judgment pursuant to Rule 12(b), and denying that of the plaintiffs. See generally Millsaps v. Thompson, 96 F. Supp. 2d 720 (E.D. Tenn. 2000). This timely appeal followed, and raises the question whether Tennessee's early voting system conflicts with federal statutes establishing the first Tuesday after the first Monday in November as federal election day. We will affirm the judgment of the district court.

I. Tennessee's Early Voting Statutes

Tennessee holds elections for Members of Congress, United States Senators, Electors for President and Vice President, and various state officers "at the regular November election." Tenn. Code Ann. § 2-3-203 (Supp. 2000). Since 1870 the Tennessee Constitution has specified the date for this election as "the first Tuesday after the first Monday in November. Said elections shall terminate the same day." Tenn. Const. art. II, § 7. Since 1949 Tennessee law has also allowed those absent on election day from the county in which they are registered to vote to cast ballots by mail prior to election day. Tenn. Code Ann. § 2-6-201. See also Hilliard v. Park, 370 S.W.2d 829 (Tenn. 1963).

In 1994 the Tennessee General Assembly enacted a system for early voting to enable registered voters to cast ballots during a specified period prior to the day scheduled for the regular November election. Tennessee's Early Voting Statutes ("Early Voting Statutes" or "TEVS") create a procedure for those wishing to vote prior to election day:

A voter who desires to vote early shall go to the county election commission office within the posted hours not more than twenty (20) days nor less than five (5) days before the day of the election. A voter desiring to vote in the early voting period shall sign an application for a ballot.

Tenn. Code Ann. § 2-6-102(a)(1) (emphasis added). When an early voter casts a ballot in accordance with the Early Voting Statutes, county election officials do not immediately count the vote; rather, they hold the ballots of early voters until the close of all polling places on the first Tuesday after the first Monday in November, then record the early votes along with absentee votes. Id. § 2-6-304(e). In contrast to absentee voting, which requires a voter to identify one of a few specifically enumerated reasons for voting absentee, id. §§ 2-6-201, -202, the TEVS allow any registered voter to vote early if he or she wishes. Id. § 2-6-102(a)(1). The Early Voting Statutes clearly set forth the rationale for this system: "The purpose of this part is to establish an early voting period when eligible registered voters may vote before an election at the county election commission office or another polling place appropriately designated by the county election commission." Id. § 2-6-101(b) (emphasis added).

Early voting has proved to be a popular method for casting ballots. In the 1996 presidential election, 399,317 of the 1,918,156 votes cast in Tennessee, 20.82 percent, were early votes; an additional 35,815 voters, representing 1.86 percent of the total votes cast in Tennessee, voted absentee. In the 2000 presidential election, the number of early votes increased dramatically: 749,170 of the 2,100,241 votes cast, 35.67 percent, were cast early, with an additional 47,954 voters, 2.28 percent, casting absentee ballots.

II. Standard of Review and Preemption Standards

We review a district court's grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc).

Under the Supremacy Clause of the United States Constitution, "state laws that 'interfere with, or are contrary to the laws of congress, made in pursuance of the constitution' are invalid." Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604 (1991) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824)). Whether federal law preempts state law turns principally on congressional intent. Northwest Cent. Pipeline Corp. v. State Corp. Comm'n of Kan., 489 U.S. 493, 509 (1989). In analyzing preemption, "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

This court will give preemptive effect to federal law under three circumstances. Larkin v. State of Michigan Dep't of Soc. Servs., 89 F.3d 285, 289 (6th Cir. 1996). First, a federal statute may expressly preempt state law. Gustafson v. City of Lake Angelus, 76 F.3d 778, 782-83 (6th Cir. 1996) (citing Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203 (1983)). Second, federal law may impliedly preempt state law. Id. (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984)). Implied preemption occurs:

if a scheme of federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," if "the Act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or if the goals "sought to be obtained" and the "obligations imposed" reveal a purpose to preclude state authority.

Mortier, 501 U.S. at 605 (quoting Rice, 331 U.S. at 230) (alterations omitted). Third, federal law preempts state law when the two actually conflict. Gustafson, 76 F.3d at 782. State and federal law actually conflict when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or when a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

III. The Elections Clause of the United States Constitution

The Elections Clause of the United States Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

U.S. Const. art. I, § 4, cl. 1. Likewise the counterpart to the Elections Clause for the Executive Branch provides: "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." Id. art. II, §1, cl. 3.

On numerous occasions the Supreme Court has expounded the meaning of these clauses. Under the Elections Clause, "the states are given[] and in fact exercise wide discretion in the formulation of a system for the choice by the people of representatives in Congress." United States v. Classic, 313 U.S. 299, 311 (1941). The power of the States to prescribe the "times, places and manner" for electing federal representatives encompasses nearly every procedural facet of a federal election.

It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved . . . . All this is comprised in the subject of "times, places and manner of holding elections[.]"

Smiley v. Holm, 285 U.S. 355, 366 (1932). Of course, Congress can override state election regulations pursuant to its power to "make or alter such regulations." Cook v. Gralike, 531 U.S. 510, 121 S. Ct. 1029, 1038 (2001). This "make or alter" power sweeps broadly. Ex Parte Siebold, 100 U.S. 371, 387 (1879) ("Congress, by its power to make or alter the regulations, has a general...