ALETA A. TRAUGER, United States District Judge.
The plaintiffs have filed a Motion for Preliminary Injunction (Docket No. 54), to which the defendants have filed a Response (Docket No. 59). For the reasons set out herein, that motion will be granted.
A more detailed discussion of the procedural history of this case and the legal context of the underlying enactment can be found in the court's Memorandum of September 9, 2019. (Docket No. 57.) In short, "[o]nly qualified voters who are registered... may vote at elections in Tennessee," Tenn. Code Ann. § 2-1-105, and the only way to be registered is if one "applies to register." Tenn. Code Ann. § 2-2-104(1). A voter registration application can be completed in person at various government offices, online, or by mail. See Tenn. Code Ann. §§ 2-2-108(a)(1), 2-2-111(a), 2-2-112, 2-2-115(a), 2-2-201, 2-2-202. Unless a prospective voter applies to register at least thirty days before an election day, the voter will not appear on the voter rolls for that election. Tenn. Code Ann. § 2-2-109(a).
A number of organizations and individuals, recognizing that a lack of registration is the only legal obstacle preventing many Tennesseans from voting, engage in activities intended to assist unregistered qualified voters in filing registration applications. Some of those efforts are small and informal, between friends, family, neighbors, and coworkers. Other efforts to assist in voter registration are larger and directed at the broader public, such as the operation of voter registration desks at schools, community centers, concerts, and other locations frequented by unregistered prospective voters. These efforts historically have involved collecting paper registration forms, although modern technology also allows organizations to assist voters in registering electronically.
On April 29, 2019, the Tennessee General Assembly passed a new law governing, among other things not at issue in this case, "voter registration drives" and "public communication[s] regarding voter registration status." ELECTION OFFENSES, 2019 Tenn. Laws Pub. ch. 250 (H.B. 1079) (hereinafter, the "Act"). On May 2, 2019, Governor Bill Lee signed the Act into law, and its provisions are slated to "take effect" on October 1, 2019. 2019 Tenn. Laws Pub. ch. 250, § 9. On May 9, 2019, most of the current plaintiffs—along with one organization that is no longer associated with the case—filed a Complaint in this court challenging the constitutionality of several portions of the Act under 42 U.S.C. § 1983. (Docket No. 1.) On June 21, 2019, the plaintiffs filed an Amended Complaint that expanded on the plaintiffs' allegations and included all of the parties currently in the
The Act requires prior registration, with the state's Coordinator of Elections, by private organizations and individuals planning a voter registration drive in which the party will "attempt[] to collect voter registration applications of one hundred (100) or more people." Tenn. Code Ann. § 2-2-142(a).
These requirements include an exception for "individuals who are not paid to collect voter registration applications or ... organizations that are not paid to collect voter registration applications and that use only unpaid volunteers to collect voter registration applications." Tenn. Code Ann. § 2-2-142(g). An organization is also excepted if it has been "designated" by the county election commission as the county designee for the purposes of operating certain county-supervised voter registration activities. Tenn. Code Ann. § 2-2-142(a).
Violation of any of these requirements, if done "intentionally or knowingly," is a Class A misdemeanor, and "each violation constitutes a separate offense." Tenn. Code Ann. § 2-2-142(f).
The Act requires any person or organization that performs a voter registration drive for which registration was required to "deliver or mail completed voter registration forms within ten (10) days of the date of the voter registration drive; provided[] that if the date of the voter registration drive is within ten (10) days of the voter registration deadline, the completed forms must be delivered or mailed no later than the voter registration deadline." Tenn. Code Ann. § 2-2-142(a)(2). The only exception within the text of the Act is that
The plaintiffs do not dispute that they should turn in any voter registration forms they receive that represent a good-faith effort to register to vote. To the contrary, as they note in their Amended Complaint, it is arguably already their duty to do so under Tenn. Code Ann. § 2-19-103, which makes it a crime to knowingly interfere in a person's rights under the state's election laws. (Docket No. 37 ¶ 186.) The plaintiffs take issue, however, with the inflexibility of the 10-day rule and with the turn-in requirement's relationship to another of the Act's key provisions—its system of civil penalties related to the submission of "incomplete" voter registration applications. Pursuant to Tenn. Code Ann. § 2-2-143(a), "any person or organization" that "conducts voter registration drives under" the registration scheme is subject to a civil penalty if the person or organization, "within a calendar year, files one hundred (100) or more incomplete voter registration applications." The Act defines "incomplete voter registration application" as "any application that lacks the applicant's name, residential address, date of birth, declaration of eligibility, or signature." Tenn. Code Ann. § 2-2-143(b). This provision does not include a requirement that the violation be knowing or intentional.
County election commissions are required to "file notice with the state election commission, along with a copy of each voter registration application deemed to be incomplete and identifying information about the person or organization that filed the incomplete applications." Tenn. Code Ann. § 2-2-143(c)(2). The state election commission then "shall make a finding on the number of incomplete forms filed" and "may impose civil penalties for Class 1 and Class 2 offenses." Tenn. Code Ann. § 2-2-143(c)(3). "`Class 1 offense' means the filing of one hundred (100) to five hundred (500) incomplete voter registration applications," and such an offense is "punishable by a civil penalty of one hundred fifty dollars ($150), up to a maximum of two thousand dollars ($2,000), in each county where the violation occurred." Tenn. Code Ann. § 2-2-143(c)(4)(A). "`Class 2 offense' means the filing of more than five hundred (500) incomplete voter registration applications," and such an offense is "punishable by a civil penalty of not more than ten thousand dollars ($10,000) in each county where the violation occurred." Tenn. Code Ann. § 2-2-143(c)(4)(B).
The Act prohibits anyone operating a voter registration drive from "copying, photographing, or in any way retaining the voter information and data collected on the voter registration application, unless the applicant consents." Tenn. Code Ann. § 2-2-142(b). The Act does not specify whether the consent must be in writing. A knowing or intentional violation is a Class A misdemeanor, with "each violation constitut[ing] a separate offense." Tenn. Code Ann. § 2-2-142(f).
Pursuant to Tenn. Code Ann. § 2-2-145(a)(1), any "public communication regarding voter registration status made by a political committee or organization must display a disclaimer that such communication is not made in conjunction with or
The plaintiffs are all organizations involved in voter registration activities in Tennessee. Although they employ different strategies and work with different populations, all have expressed fear that it will be difficult or even impossible to continue their activities while complying with the Act.
According to Ott, bringing the League's activities into compliance with the Act will require "significant staff, volunteer, and leadership resources," of which she provides several examples (Id. ¶¶ 27, 50, 52, 55.) Ott also expresses concern that the Act's prior registration requirement will be difficult to comply with and will prevent the League's chapters from holding impromptu voter registration events. (Id. ¶ 29.) Ott suggests, moreover, that the requirement that volunteers undergo prior government training will hamper the organization's ability to draw on its volunteer base, many of whom do not make the final decision to volunteer until the day of an event. (Id. ¶¶ 33-34.)
As Ott explains, participation in voter registration drives is central to the League's mission and its recruitment of new members. Ott believes, however, that a risk of criminal prosecution will have a significant chilling effect on potential volunteers' willingness to participate in drives. (Id. ¶ 40.) According to Ott, it is also very likely that the League's voter registration drives will produce some incomplete
Ott explains that the League also routinely engages in communications with the public about voter registration that would likely be subject to the Act's disclaimer requirements. (Id. ¶ 63.) The League will have to expend resources revising its materials to include the required disclaimers. (Id. ¶ 65.) In particular, the League was planning to implement a 2020 text messaging campaign to communicate with potential voters about voter registration. That campaign, however, would be made infeasible or, at the very least, more expensive by the disclaimer requirement. Accordingly, if the Act is not enjoined, the League will abandon its text-messaging plans. (Id. ¶ 70.) The disclaimer requirements also pose technical and practical challenges to the operation of the League's voter registration and education website, VOTE411.org. (Id. ¶ 71.) Moreover, Ott explains, even if it is somehow able to comply with the disclaimer requirements for all of its potentially covered communications, the League is concerned that the disclaimers will reduce the effectiveness of its communications by making the League's efforts seem unauthorized and illegitimate, despite its century of service as a reputable organization assisting in voter registration. (Id. ¶ 73)
Finally, Ott explains, the League, prior to the Act, was planning to retain information obtained in future voter registration drives in order to conduct follow-up communications to provide election information and encourage voting. Because of the Act and, in particular, the difficulty of both complying with and documenting compliance with its consent requirement for the retention of voter information, the League has placed this plan on "indefinite hold." (Id. ¶¶ 66-67.)
Lichtenstein expresses the same concerns as Ott regarding the Act's effect on MCLC's voter registration and communication activities. (Id. ¶¶ 12-22.) According to Lichtenstein, the compliance burdens of the Act, the chilling effect on MCLC's ability to hire organizers, and the risk of civil fines and misdemeanor charges may render MCLC ultimately "unable to continue conducting its door-to-door canvassing program in the manner it has used in the past." (Id. ¶¶ 14, 20, 22.)
HeadCount shares the other plaintiffs' concerns about the Act and its effects. (Id. ¶¶ 17-87.) The need to revise materials specifically for compliance in Tennessee is a particular challenge for HeadCount, given its nationwide scope. (Id. ¶ 20.) HeadCount notes that the Act's training requirement is also likely to be especially challenging for HeadCount, because many of HeadCount's volunteers come to its concert-based evening events after work and have minimal time before voter registration work begins. (Id. ¶ 43.) HeadCount's extensive digital and texting-based activities also present particular challenges with regard to compliance with the disclaimer requirements. (Id. ¶¶ 56-62.) According to Vickery, the Act may force HeadCount to "severely reduce" its voter registration activities in Tennessee "or even end them, depending on the circumstances." (Id. ¶ 72.)
The plaintiffs have named as defendants various Tennessee officials who will play roles in administering the Act, each of whom is sued in his or her official capacity only. Tre Hargett is the Tennessee Secretary of State. Under the Tennessee Constitution, the Secretary of State is appointed by a joint vote of the General Assembly, whose members are elected. Tenn. Const. art. III, § 17. The Secretary of State, in turn, appoints the state's Coordinator of Elections, who serves at the pleasure of the Secretary. Tenn. Code Ann. § 2-11-201(a). Defendant Mark Goins is the Coordinator of Elections. The Coordinator "is the chief administrative election officer of the state" and is charged with "obtain[ing] and maintain[ing] uniformity in the application, operation and interpretation of the election code." Tenn. Code Ann. § 2-11-201(b). Among the Coordinator's responsibilities
Herbert H. Slatery III is the Attorney General and Reporter (hereinafter, "Attorney General") of Tennessee. Tennessee's Attorney General is appointed by the judges
Donna Barrett, Judy Blackburn, Greg Duckett, Mike McDonald, Jimmy Wallace, Tom Wheeler, and Kent Younce are the members of the State Election Commission. Members of the Commission are elected by a joint resolution of both houses of the General Assembly. Tenn. Code Ann. § 2-11-104(b). The Act adds a provision allowing the General Assembly to remove a member for cause or if he or she becomes unqualified. 2019 Tenn. Laws Pub. ch. 250, § 8. Under the Act, the Commission is the body to which incomplete registrations are reported and the body that "may" impose fines based on the incomplete forms. Tenn. Code Ann. § 2-2-143(c). The members of the Commission have provided Declarations stating that they do not intend to enforce Tenn. Code Ann. § 2-2-143 or refer anyone for prosecution under Tenn. Code Ann. § 2-2-142 until administrative rules are finalized under the Act. (E.g., Docket No. 59-2 ¶¶ 10-12; accord Docket Nos. 59-3 to -7 ¶¶ 10-12, Docket No. 59-8 at 2-3.)
The plaintiffs ask the court to "enjoin the implementation of Tennessee Code Sections 2-2-142, subsections (a)-(b) and (e)-(g), 2-2-143, and 2-19-145." (Docket No. 54 at 1.) In other words, the plaintiffs ask the court to enjoin the operation of (1) the pre-registration requirement, including the requirement to file a sworn statement of compliance, (2) the prior government training requirement, (3) the 10-day turn-in requirement, (4) the requirement for consent before retaining voter information, (5) the system of civil penalties for turning in incomplete applications, (6) all disclaimer requirements in the Act, and (7) the adoption of any administrative rules and procedures intended to implement the aforementioned provisions.
The Sixth Circuit has held that the district court must balance four factors when considering a motion for preliminary injunction under Federal Rule of Civil Procedure 65: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable
The defendants renew their objections that the plaintiffs lack standing to bring their claims and that the claims are not ripe for adjudication. The court addressed the appropriate legal standard for evaluating these arguments at length in its Memorandum of September 9, 2019. (Docket No. 57 at 27-35) and will not reiterate the entirety of that legal analysis here. Rather, the court incorporates its prior legal conclusions by reference and will apply that analysis to the factual record now before it.
As the court previously concluded, the plaintiffs may establish that their claims are premised on an actual or imminent injury-in-fact in several ways relevant to this case. First, they may establish injury-in-fact based on the Act's actual or imminent "costly, self-executing compliance burdens." Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997) (citation omitted); accord Hyman v. City of Louisville, 53 F. App'x 740, 743 (6th Cir. 2002); see also); see also Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (finding standing because "plaintiffs ..., if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution") (citing Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)); Ohio Coal Ass'n v. Perez, 192 F.Supp.3d 882, 902 (S.D. Ohio 2016) ("[A]dditional compliance burdens may serve as an injury in fact.") (citing All. for Natural Health U.S. v. Sebelius, 775 F.Supp.2d 114, 120-21 (D.D.C. 2011)). Second, the plaintiffs can establish standing based on the fact that, but for the Act, they would behave in ways that the Act proscribes, and they, therefore, will imminently be forced to alter their behavior in response to the Act. See Clements v. Fashing, 457 U.S. 957, 962, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (finding standing where plaintiffs alleged that, "but for the ... provision they seek to challenge, they would engage in the very acts that would trigger the enforcement of the provision"). Third, the plaintiffs can establish an injury-in-fact by establishing that the Act will imminently "restrict[] the plaintiffs' political activities within the state" and "limit[] their ability to associate as political organizations." Green Party of Tenn. v. Hargett, 767 F.3d 533, 544 (6th Cir. 2014). The court held that, for the purposes of the facial challenge to jurisdiction raised in the defendants' Motion to Dismiss, the allegations in the plaintiffs' Amended Complaint were sufficient to establish standing in any of those three ways.
Nothing about the evidence now before the court causes it to revise its conclusion with regard to standing. The defendants now offer Declarations from the Coordinator of Election and members of the State Election Commission to the effect that they have not yet issued any regulations pursuant to the Act and do not intend to penalize anyone until those regulations are issued, which will take several months. (See Docket Nos. 59-1 to -8.) The provisions of the Act, however, are self-executing. They go into effect regardless of whether there has been any rulemaking
Aside from that, an individual who wishes to engage in voter registration activities in Tennessee will still need to take steps to be ready to comply whenever authorities do start enforcing the Act. The need to prepare for the Act's enforcement, whether in a month or six months, is an actual injury sufficient to confer standing, just as the soon-to-take effect commands of the Act remain an imminent injury sufficient to confer standing in their own right.
As the Sixth Circuit has observed, "[t]he line between Article III standing and ripeness in preenforcement First Amendment challenges" is so slim that it has, in effect, "evaporated." Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016) (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 165-67, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014)). Unsurprisingly, then, the defendants' ripeness arguments are largely just an echo of their standing arguments. At the motion to dismiss stage, the court held that the plaintiffs' allegations were sufficient to meet the constitutional requirements of ripeness, and that, insofar as it mattered, they also presented no prudential obstacles to adjudication. As with standing, the evidentiary record confirms the court's earlier analysis.
Moreover, insofar as some discrete, purely logistical aspects of the voter registration process might be "separable" from the expressive, informational, and associational aspects of a voter registration drive, Voting for Am., Inc. v. Steen, 732 F.3d 382, 388 (5th Cir. 2013), that is not the case here. The court is skeptical that the First Amendment would countenance "slic[ing] and dic[ing] the activities involved in the plaintiffs' voter registration drives" for constitutional purposes, both because doing so would allow the government to burden the protected aspects of the drive indirectly and because the "entire voter registration activity" implicates the "freedom of the plaintiffs to associate with others for the advancement of common beliefs [that] is protected by the First and Fourteenth Amendments." Id. at 401, 404 (Davis, J., dissenting). Even if that type of disjointed analysis were permissible, however, the plaintiffs have demonstrated how each of the challenged provisions bears directly on the expressive and associational aspects of a voter registration drive. The prior registration and training requirements are directed at the entirety of the drive, not some discrete aspect; the training requirement, moreover, involves inserting the government, as a speaker, into the associational activity between voter registration workers, directly implicating core First Amendment interests; and, while the civil penalties for incomplete applications are directed only at the paperwork aspect of a drive, the threat of penalties is likely to have a chilling effect on the entirety of the drive, including its communicative aspects.
The defendants have suggested that the Act does not regulate expressive, informational, or associational aspects of voter registration, because the plaintiffs could still promote registration without collecting the applications themselves. The General Assembly, however, did not adopt the Act in a vacuum, and the plaintiffs now have provided a significant factual record of the practices that the Act will reach. Voter registration drives, as a practice, existed well before the Act, and, as the General Assembly was no doubt aware, those drives historically have involved both encouraging and facilitating registration, including, at least in many cases, by physically transporting applications. As a matter of simple behavioral fact that long pre-dates the enactments at issue here, "the collection and submission of" the applications gathered in a voter registration drive "is intertwined with speech and association."
The mere fact that First Amendment interests are touched on by the Act, however, does not necessarily render the Act unconstitutional or even dictate the standard by which the Act must be reviewed. Courts have often struggled with the unique difficulties posed by First Amendment challenges to election laws. In most areas of the law, the government can avoid the First Amendment just by taking the Amendment's advice and "mak[ing] no law" that bears on a potentially protected subject matter. U.S. Const. amend. I. On the topic of elections, however, making no law is not an option. "[T]here must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). For that reason, the Supreme Court has held that First Amendment challenges to "election code provisions governing the voting process itself" require a specialized inquiry beyond a simple "`litmus-paper test' that will separate valid from invalid restrictions." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 345, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (citation omitted). In such cases, the Supreme Court has "pursued an analytical process" that considers "the relative interests of the State and the injured voters, and ... evaluate[s] the extent to which the State's interests necessitated the contested restrictions." Id. (citation omitted).
The "flexible balancing approach" endorsed by the Supreme Court— known generally as the Anderson-Burdick framework, after Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), and Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1982)—can sometimes make it hard to fit First Amendment challenges to election laws into ordinary constitutional categories. Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016). When a state's law "`severely' burdens the fundamental right to vote, as with poll taxes, strict scrutiny is the appropriate standard."
Before a court even begins the Anderson-Burdick balancing process, however, it must conduct the threshold inquiry of whether that framework actually applies —which is not necessarily a given merely because the challenged law pertains to elections. As the Sixth Circuit has observed, the rationale for Anderson-Burdick assumes that "`election cases rest at the intersection of two competing interests,' namely, an individual's right to vote versus a state's prerogative to regulate the right to vote." Mich. State A. Philip Randolph Inst. v. Johnson, 749 F. App'x 342, 349 (6th Cir. 2018) (quoting Ohio Democratic Party, 834 F.3d at 626). Some election-related laws, however, implicate more than those two sets of concerns. Specifically, laws that govern the political process surrounding elections—and, in particular, election-related speech and association— go beyond merely the intersection between voting rights and election administration, veering instead into the area where "the First Amendment `has its fullest and most urgent application.'" Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); citing Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). The Supreme Court, accordingly, has applied "exacting scrutiny" —not Anderson-Burdick—to cases governing election-related speech rather than "the mechanics of the electoral process." McIntyre, 514 U.S. at 345, 347, 115 S.Ct. 1511 (reviewing law banning the circulation of anonymous literature intended to affect an election).
Left with this sometimes bewildering array of standards to choose from, it is probably best to eschew the abstract in favor of the specific, look to the details of the challenged scheme, and see how similar laws have been reviewed by the Supreme Court when challenged. Neither party has identified a Supreme Court case specifically addressing voter registration drive restrictions of the type at issue here. The plaintiffs, however, liken their challenge to those raised in two Supreme Court cases involving a different type of canvassing, the circulation of petitions in support of ballot initiatives, Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), and Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). In Meyer, the Supreme Court struck down Colorado's prohibition on the use of paid petition circulators. 486 U.S. at 428, 108 S.Ct. 1886. In Buckley, the Supreme Court struck down three more Colorado restrictions on petition circulators: "(1) the requirement that initiative-petition
The Supreme Court concluded that the regulation of the petition-drive activities at issue "involve[d] a limitation on political expression subject to exacting scrutiny." Meyer, 486 U.S. at 420, 108 S.Ct. 1886 (citing Buckley v. Valeo, 424 U.S. 1, 45, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). The Court explicitly rejected, moreover, the argument that the logistical aspects of collecting signatures could be easily separated from the regulation of speech, because "[t]he circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change." Meyer, 486 U.S. at 421, 108 S.Ct. 1886. "[T]he First Amendment," the Court explained in Buckley, "requires us to be vigilant" when such activities are regulated, "to guard against undue hindrances to political conversations and the exchange of ideas." 525 U.S. at 192, 119 S.Ct. 636 (citing Meyer, 486 U.S. at 421, 108 S.Ct. 1886). The Court held that the prohibitions were unconstitutional because they "significantly inhibit[ed] communication with voters about proposed political change, and [were] not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions." Id.
The Supreme Court noted, in particular, the laws' tendency to result in "speech diminution" by "decreas[ing] the pool of potential circulators" of petitions. Id. at 194, 119 S.Ct. 636; see also Bailey v. Callaghan, 715 F.3d 956, 969 (6th Cir. 2013) (referencing Meyer as an example of the rule that the First Amendment applies "not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak") (citing Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 337, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010); Meyer, 486 U.S. at 424, 108 S.Ct. 1886)). Based on the factual record provided by the plaintiffs and largely unrefuted by the defendants, the same speech diminution rationale can easily be applied to the Act's restrictions on voter registration drives, particularly those involving prior registration, mandatory attendance at state-provided training, and the threat of criminal prosecution. If, therefore, Meyer and Buckley apply, they pose a substantial obstacle to the constitutionality of the Act.
The Sixth Circuit has recognized that the standard set forth in Meyer and Buckley is not limited to the circulation of initiative petitions. See Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 316 (6th Cir. 1998) (applying Meyer-Buckley framework to law governing solicitation of political contributions). The defendants nevertheless argue that those cases should not apply here because voter registration drives, unlike petition drives for ballot initiatives, do not involve "communication with voters about proposed political change" and, therefore, are entitled to less First Amendment protection. Buckley, 525 U.S. at 192, 119 S.Ct. 636. But, as the court has already observed, the creation of a new voter is a political change—no less so than the inauguration of a new mayor or the swearing-in of a new Senator. The often-repeated premise that voting is the "political right ... preservative of all rights," Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 S.Ct. 220 (1886), is not just a comforting aphorism; it reflects an acknowledgment that, in the American system of governance, every decision to grant, preserve, or take away a right can
A discussion of whether or not a person should register to vote, moreover, inherently "implicates political thought and expression." Buckley, 525 U.S. at 195, 119 S.Ct. 636.
The Sixth Circuit's recent opinion in Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019), provides a useful framework for distinguishing between cases in which Anderson-Burdick is appropriate and cases in which a more demanding First Amendment framework should apply. In Schmitt, the plaintiffs challenged Ohio's system of reviewing whether to allow a ballot initiative to proceed—specifically, the state's mechanism for rejecting initiatives that propose "administrative" rather than "legislative" changes. Id. at 634. The plaintiffs sought to proceed under ordinary First Amendment principles, but the Sixth Circuit rejected their argument on the ground that the challenged laws "regulate the process by which initiative legislation is put before the electorate, which has, at most, a second-order effect on protected speech." Id. at 638. The court further explained that, "although the Supreme Court has acknowledged that a person or party may express beliefs or ideas through a ballot, it has also stated that `[b]allots
There can be little doubt that there is an important government interest in voter registration being done properly, including when a third party is involved. The court, however, sees very little basis for concluding that the provisions of the Act governing registration and training are truly necessary or substantially related to that interest. For one thing, the defendants, despite having been given the opportunity to provide factual support for the Act, have offered no evidence of any reason to require the operator of a voter registration drive to report his activities to the government. Moreover, even if one assumes that it is necessary for the operator
Particularly without justification is the requirement that the operators of voter registration drives file sworn statements confirming that they will comply with the law. The law is the law already; no one has to swear to follow it in order for it to apply. As a practical matter, this requirement merely adds an additional regulatory hoop for the operator of a voter registration drive to jump through, while also perhaps sending her an intimidating message about the possibility of prosecution. There is simply no persuasive reason to force someone to swear that she will abide by laws that already bind her regardless.
The defendants have also wholly failed to provide evidence justifying the policy of imposing the Act's reporting and training requirements only on people or organizations who have received some remuneration for their voter registration work. See Project Vote, 455 F. Supp. 2d at 705 (discussing impropriety of "assum[ing] that compensated workers would be more ill equipped to assist in filling out the registration forms than uncompensated voter registration workers" (internal quotation marks omitted)). The imposition of the registration requirement on some voter registration drives and not others, based on whether work is paid, moreover, will inevitably lead to harsher treatment for some types of organizations—specifically, those less capable, perhaps due to the nature of their mission, of summoning numerous enthusiastic volunteers. See Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 799, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (noting that a requirement targeting only paid personnel making charitable solicitations "necessarily discriminates against small or unpopular" causes and groups that must rely on paid assistance). The Act's two-tiered system both lacks justification in its own right and undermines any claim that its provisions are truly necessary.
It is similarly unclear what basis there is for imposing a bar on retaining a person's information, over and above any existing state and federal privacy protections, that applies only to voter registration advocates. The plaintiffs, moreover, have persuasively demonstrated how the consent requirement would directly hamper their political speech and organizing. The plaintiffs' voter registration activities, they have explained, are just one component of a broader strategy of advocacy that includes following up with registrants to facilitate their voting and communicate with them about issues. If the plaintiffs cannot retain the applicants' information, that will be impossible. The defendants, moreover, have not provided any basis for concluding that the plaintiff organizations could, as a practical matter, demonstrate compliance with the Act's information retention consent requirements without its substantially burdening their registration activities. Although the privacy of individual information is important, the defendants have demonstrated no reason that there needs to be specific requirements that apply to the retention of information from voter registration drives but to none of the other myriad situations in which individuals hand over their information to third parties.
Finally, the current record reflects no sufficient basis for requiring that registration workers and volunteers receive mandatory
Moreover, the plaintiffs have also demonstrated a strong likelihood of success on the merits of their claims that these provisions are unconstitutional for a second reason—namely, the vagueness of the scope and the nature of their requirements. Admittedly, some degree of ambiguity is unavoidable in statutory drafting, and even a well-drafted statute may be "susceptible to clever hypotheticals testing its reach." Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235, 251 (6th Cir. 2018). However, basic principles of due process set an outer limit for how vague a statutory command can be if a person is going to be expected to comply with that command. Specifically, a statute is unconstitutionally vague under the Fourteenth Amendment if its terms "(1) `fail to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits' or (2) `authorize or even encourage arbitrary and discriminatory enforcement.'" Id. at 246 (6th Cir. 2018) (quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). "`[A] more stringent vagueness test should apply' to laws abridging the freedom of speech...." Id. (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). That standard can be "relaxed somewhat" if the law at issue "imposes civil rather than criminal penalties and includes an implicit scienter requirement." Id. (citing Hoffman Estates, 455 U.S. at 499, 102 S.Ct. 1186). These provisions of the Act, however, impose criminal liability.
Particularly troubling is the Act's failure to define what counts as a single "voter registration drive" for the purposes of (1) calculating whether a drive is attempting to register more than 100 voters and (2) knowing when a person or organization must file a fresh pre-registration with the Coordinator of Elections. For example, a group might plan a series of events at different churches, temples, or mosques once a week, for a month. In this hypothetical, the organization would know, from experience, that no single effort at a single
Also troublingly vague is the scope of the scheme's exception for individuals and some organizations that are not "paid to collect voter registration applications." Tenn. Code Ann. § 2-2-142(g). Specifically, it is not clear what types of arrangement qualify as `payment' under the Act. Being "paid to collect voter registration applications" presumably covers individuals paid an hourly wage to collect registrations and organizations that have entered into contracts specifically to collect registrations for an identified price. It is unclear, however, if the language applies to, for example, individuals receiving a stipend or organizations that receive grants to engage in voter registration activities generally. See Project Vote, 455 F. Supp. 2d at 707 (noting difficulty of determining which voter registration workers are "compensated"). Without some clarity about the type of payment contemplated by the Act, it is impossible for a person or organization to know if it is covered. Accordingly, the plaintiffs have shown a high likelihood that their claims will succeed on the merits, both with regard to the provisions' substantive commands and the vagueness of their scope and requirements.
The plaintiffs point out several aspects of the civil penalties regime related to incomplete applications that allegedly impose burdens far out of proportion to their supposed benefits. Most obviously, the combination of the 10-day hand-in requirement and the penalties for incomplete forms put the plaintiffs in an unnecessary double bind. There are good reasons to require operators of voter registration drives to turn in all of their collected applications and to do so in a timely manner. But by imposing the 10-day requirement, the Act is also, by necessity, requiring people and organizations to turn in applications
The defendants would presumably respond that the Act only punishes those whose voter registration efforts result in an unacceptable rate of error. That, though, is not how the Act is structured. The Act does not punish anyone for the rate of incomplete forms he turns in. If an organization turns in 10,000 applications, 1% of which are incomplete, it is penalized, even if it made all reasonable efforts to perform its voter registration drive competently. If an organization turns in a stack of 150 applications, 66% of which are incomplete, that organization is in the clear. The result is that the Act holds an organization to an increasingly more onerous standard the more effective it is at recruiting new voters.
That penalty for effectiveness is only exacerbated by the Act's provisions imposing an additional penalty "in each county where the violation occurred." Tenn. Code Ann. § 2-2-143(c)(4)(A), accord Tenn. Code Ann. § 2-2-143(c)(4)(B). For example, if an organization operates across 20 counties and turns in 5 incomplete forms from each county, for a total of 100 incomplete forms, it can be fined up to $2,000. If an organization operates in one county and turns in 500 incomplete forms, it can only be fined $150. Just as the decision to punish by volume rather than rate punishes an organization for identifying more prospective voters, the county-by-county fine requirement punishes an organization for having a wider geographic scope. The unluckiest organization of all is one that seeks to register a large number of Tennesseans across a large number of counties. In other words, the Act falls hardest not on bad actors but on organizations with the most ambitious and inclusive voter registration efforts. The state's interest in drives being performed competently does not justify such a regime, under exacting scrutiny or some lesser balancing analysis. The court has little trouble, therefore, concluding that the plaintiffs are likely to succeed on this aspect of their claim.
The defendants suggest that all of these bedrock First Amendment principles fall by the wayside, as long as the disclaimer that a person is being required to utter is "factual." The Supreme Court, however, has flatly rejected the argument that merely because a statement is technically true then the government can force a person to make that statement without offending the First Amendment. See id. at 2372. Quite to the contrary, the Supreme Court has recognized that, if left unchecked, the government can use mandatory disclaimers —even truthful ones—as a means of "manipulat[ing] the content of ... discourse" on issues of profound importance. Id. at 2374 (citation omitted). That risk is especially acute where, as here, the disclaimer is designed to highlight the speaker's lack of authority. As the court has already held, the speech touched on by the Act falls within the highest level of constitutional protection. Interfering with that speech is constitutionally suspect, whatever tool is used. The court, accordingly, will not ignore the well-established constitutional standards for evaluating compelled speech.
The plaintiffs have demonstrated a likelihood of success in establishing that the disclaimer requirements serve no compelling state interests. The defendants offer hypothetical situations in which individuals might be harmed by their confusion regarding whether a voter registration entity is actually government-affiliated or not. They provide, however, no evidence that such situations are likely or common. In order for a compelled disclosure to pass constitutional muster, it must "remedy a harm that is," at the very least, "`potentially real[,] not purely hypothetical.'" Id. at 2377 (quoting Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 146, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994)).
Even if the defendants could establish that the disclaimers required by the Act are directed at a real problem, there is reason to doubt that the Act is appropriately tailored to that problem. The government's "simple interest in providing voters with additional relevant information does not justify a state requirement that a [speaker] make statements or disclosures she would otherwise omit." McIntyre, 514 U.S. at 348, 115 S.Ct. 1511. If the state is concerned that the public is insufficiently informed or misinformed, then "more benign and narrowly tailored options are available" than compelled speech. Riley, 487 U.S. at 800, 108 S.Ct. 2667. For example, the state could "communicate the desired information to the public" itself through a public awareness campaign. Id. If the Tennessee Department of State is concerned that the public is confused about its role in voter registration, it is free to communicate with the public of its own accord.
Indeed, even if one accepts that the government's purpose is compelling and that disclaimers are an appropriate tool for furthering that purpose, the plaintiffs have raised persuasive objections to the particular disclaimer requirements in the Act. For example, the disclaimer requirement
The defendants dismiss plaintiffs' concerns that the disclaimers will cause a stigmatic injury by making voter registration activities seem somehow illegitimate. To that end, the defendants imagine a particularly unusual hypothetical member of the public—one too unsophisticated to discern that, for example, the MCLC is not a division of the Secretary of State, yet somehow sophisticated enough not to misinterpret the Act's required disclaimers. The content of the required disclaimers, however, is confusing, at best, and quite likely to be misleading. A group must explain that its communication is "not made in conjunction with or authorized by the secretary of state." But the Secretary of State has no power to "authorize[]" or not "authorize[]" anyone to engage in voter registration—related communications. The plaintiffs' communications, moreover, are authorized—authorized by the First Amendment and authorized because, consistently with the First Amendment, nothing in Tennessee law forbids them. Moreover, it is simply untrue, as a practical matter, that voter registration-related communications, particularly ones made in the context of voter registration drives, are not made "in conjunction with" the proper government authorities. The government dictated the content of the forms prospective voters fill out. The forms are sent to the county election commission, which then has a legal duty to process them. A voter registration drive is performed "in conjunction with" the proper authorities in every meaningful sense. Indeed, the authorities have no choice in the matter.
In addition to those problems, the requirement that the disclaimers be "conspicuous and prominently placed" in a way that is not "difficult to read or hear" and cannot "be easily overlooked," Tenn. Code Ann. § 2-19-145(d), read literally, sets an almost impossible standard. If, for example, an organization operates a website that includes multiple pages, it is unclear what form of disclaimer would be sufficiently prominent. For example, a disclaimer only on the site's main page would be missed by anyone who came to the site by a link to another page. Another option would be to place the disclaimer at the bottom of every page, like a copyright notice. That placement, however, could be "easily overlooked." The organization, lacking a good option, might force every user that accesses its site to acknowledge the disclaimer before going further. Even then, though, it is probably true, as a factual matter, that a user could "easily overlook" the disclaimer, just as users routinely skip quickly past terms of service and end user license agreements to get to the information and features they want in other websites and applications. People, particularly those living in a media environment that inundates them with information, are very good at overlooking things. Requiring a disclaimer that is incapable of being "easily overlooked" is, in practice, requiring a disclaimer so intrusive that it would threaten to swallow the communication that it is attempting to clarify.
Finally, even if the disclaimer requirements were otherwise constitutional, they, like the Act's registration requirements, are likely unconstitutionally vague. First, the phrase "a public communication regarding voter registration status," Tenn.
Second, as the court has already discussed, the requirement that a disclaimer must be "clear and conspicuous and prominently placed," Tenn. Code Ann. § 2-2-145(d), does not give a person or organization sufficient warning of what one must do in order to comply with the Act. Read literally, the requirement that the disclaimer be given a "placement" that cannot "be easily overlooked," id., is, at least in some instances, almost impossibly demanding. The Act, though, gives no additional guidance about how the requirement should be read. The plaintiffs, therefore, have demonstrated a strong likelihood of success that their constitutional challenge to Tenn. Code Ann. § 2-2-145 is likely to succeed.
Those burdens, moreover, are avoidable. If Tennessee is concerned that voter registration drives are being done incompetently, it can engage in public education efforts without relying on a complex and punitive regulatory scheme. If it is concerned that the drives are being done fraudulently— for example, by a person or organization collecting forms and never turning them in—it can punish the fraud rather than subjecting everyone else to an intrusive prophylactic scheme that true bad actors would likely evade regardless. See Citizens for Tax Reform v. Deters, 518 F.3d 375, 388 (6th Cir. 2008) (noting that Ohio law governing petition circulators was unnecessary,
Moreover, in light of the Act's burdens and the availability of alternative methods for pursuing its objectives, the court concludes not only that the plaintiffs are likely to succeed on their claims under Meyer, Buckley, and the caselaw governing compelled speech, but also that they would be likely to succeed under the Anderson-Burdick balancing framework. The Anderson-Burdick balancing process requires the court to "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed." Anderson, 460 U.S. at 789, 103 S.Ct. 1564. In so doing, the court must "not only determine the legitimacy and strength of each of those interests," but "also ... consider the extent to which those interests make it necessary to burden the plaintiff's rights." Miller v. Lorain Cty. Bd. of Elections, 141 F.3d 252, 256 (6th Cir. 1998) (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). The Act creates an onerous and intrusive regulatory structure for problems that, insofar as they are not wholly speculative, can be addressed with simpler, less burdensome tools. Even accounting for the possibility that the plaintiffs might not prevail with regard to the applicability of Meyer and Buckley, then, this factor favors granting a preliminary injunction.
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (citing N.Y. Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)). Even if one rejects that categorical approach, the plaintiffs have shown that, if the Act goes into effect, they will almost certainly suffer significant, irreparable injuries. The unrefuted evidence before the court suggests that the defendants will be required or are likely to curtail their voter registration efforts in response to the Act. They may even be forced to discontinue some activities altogether. The nature of elections, moreover, is that time is of the essence. It is not uncommon in Tennessee for the voters of a community to have multiple opportunities to go to the polls in a year, between primaries, general elections, runoffs, and special elections. But when each chance is gone, it is gone. The court, moreover, is aware that multiple election days are approaching, including a presidential primary in March and a general election encompassing numerous offices later in that year. Forcing the plaintiffs to wait while a case winds its way through litigation would mean taking away chances to participate in democracy that will never come back. The likelihood of irreparable injury to the plaintiffs, therefore, strongly supports granting their requested preliminary injunction.
Generally speaking, "the public interest is served by preventing the violation of constitutional rights." Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir.
The Defendants first argue that enjoining the challenged provisions of the Act will "strip Tennessee citizens of the benefits the Act will provide." (Docket No. 59 at 27.) That argument, however, fails for much the same reason that the defendants' substantive defense of the Act fails. There is simply no basis in the record for concluding that the Act will provide much benefit to Tennesseans, and even less reason to think that any benefit will come close to outweighing the harms to Tennesseans (and non-Tennesseans) who merely wish to exercise their core constitutional rights of participating in the political process by encouraging voter registration.
The Defendants next argue that an injunction will "represent[] a line in the sand" that, by preventing the Act from going into effect, will also rob the public and the court of the opportunity to see whether the harms that the plaintiffs have predicted will, in fact, come to pass. (Id.) In other words, the defendants argue that, even if the court concludes that the challenged provisions are likely unconstitutional, it should allow those provisions to go into effect in order to see just how badly the plaintiffs' and others' First Amendment rights will end up being burdened. This aspect of the defendants' argument is conspicuously unsupported by citation to caselaw. The court declines to find that the public interest would be served by treating people and organizations that wish to participate in democracy as test subjects for empirical inquiry, at least in this case.
Finally, the defendants argue that an injunction would be "an affront to [Tennessee's] sovereignty." (Docket No. 59 at 26.) But insofar as complying with the Constitution impairs Tennessee's sovereignty, the defendants' complaint is with their forebearers, not the court. "When a State enters the Union, it surrenders certain sovereign prerogatives." Massachusetts v. E.P.A., 549 U.S. 497, 519, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). It does so voluntarily, as Tennessee has done twice— first in 1796, when the state, in the words of its first Constitution, asserted its "right of admission into the General Government as a member State thereof, consistent with the Constitution of the United States," Tenn. Const. of 1796, prmbl., and then again in 1866, when it sought and received full recognition as a readmitted state after the Civil War, see 39 Res. No. 73, July 24, 1866, 14 Stat. 364. The U.S. Constitution to which Tennessee twice assented specifically provided, as it still provides, that it would be the "supreme Law of the Land," the "Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Tennessee, in its sovereignty, chose to bind itself to the Constitution. It is no affront to that sovereignty to hold the state to its commitments. The latter two preliminary injunction factors, therefore, favor granting a preliminary injunction.
Each of the preliminary injunction factors favors granting the plaintiffs relief. The court, therefore, will order the defendants to refrain from implementing or enforcing Tenn. Code Ann. § 2-2-142(a)-(b) or (e)-(g), Tenn. Code Ann. § 2-2-143, and Tenn. Code Ann. § 2-19-145.
For the foregoing reasons, the plaintiffs' Motion for Preliminary Injunction (Docket No. 54) will be granted.
An appropriate order will enter.
