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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

EARLE J. FISHER, et al. v.

On Appeal from the Chancery Court for Davidson County No. 20-0435-III

TRE HARGETT, et al.

M2020-00831-SC-RDM-CV

BENJAMIN LAY, et al.

v.

On Appeal from the Chancery Court for Davidson County No. 20-0453-III

MARK GOINS, et al. M2020-00832-SC-RDM-CV

AMICUS BRIEF OF THE REPUBLICAN NATIONAL COMMITTEE

AND TENNESSEE REPUBLICAN PARTY IN SUPPORT OF APPELLANTS/DEFENDANTS

Jason Torchinsky * jtorchinsky@hvjt.law Dennis W. Polio * dwpolio@hvjt.law Jonathan P. Lienhard * jlienhard@hvjt.law HOLTZMAN VOGEL JOSEFIAK TORCHINSKY, PLLC 45 N. Hill Dr., Suite 100 Warrenton, VA 20186 (540) 341-8808 * Pro hac vice pending

Justin N. Joy (TN BPR 023722) JJoy@LewisThomason.com LEWIS THOMASON 40 S. Main St., Suite 2900 Memphis, TN 38103-5529 (901) 525-8721

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................... 3 

INTEREST OF AMICI CURIAE ............................................................................................. 6 

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................... 7 

ARGUMENT ................................................................................................................................ 8 

I.  Tennessee’s Absentee Voting “Excuse Requirement” Does Not Implicate Voting Rights As Recognized By The Courts. .................................................................. 9 

A.  Plaintiffs’ “Harm” Is Not Traceable To State Action, But To The Virus. .. 10 

B.  Tennessee’s Excuse Requirement Does Not Present Cognizable Harm Because There Is No Right To Absentee Voting And Anderson-Burdick Therefore Does Not Apply To This Case. .................................................................... 16 

II.  The Chancery Court Exceeded Its Authority Because It Is Tennessee’s Legislature, Not Its Judiciary, That Has Exclusive Authority Over Election Regulations. ........................................................................................................................... 21 

A.  There Exist No Judicially Manageable Standards to Determine State Policy in Response to the Virus. .................................................................................... 24 

III.  The Purcell Doctrine Precludes The Chancery Court’s Relief. ........................ 26 

CONCLUSION .......................................................................................................................... 30 

CERTIFICATE OF COMPLIANCE ..................................................................................... 32 

CERTIFICATE OF SERVICE ............................................................................................... 32 

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TABLE OF AUTHORITIES

U.S. Constitution

U.S. Const. art. I, § 4, cl. 1 ............................................................... 21, 23

U.S. Const. art. II, § 1 ............................................................................. 23

U.S. Supreme Court Opinions

Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983) .................................................................................................. 19-20

Baker v. Carr, 369 U.S. 186 (1962) .................................................. 23, 24

Burdick v. Takushi, 504 U.S. 428, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992) ....................................................................................................... 19

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ....................... 23, 24

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................. 9, 16

McDonald v. Bd. of Election Comm’rs, 394 U.S. 802 (1969) ........... 17, 18

Purcell v. Gonzalez, 549 U.S. 1 (2006) ............................................. 27, 29

Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) ................................................................................................. 26, 29

Reynolds v. Sims, 377 U.S. 533 (1964) ............................................ 28, 29

Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ..................... 22, 25, 26

Tashjian v. Republican Party, 479 U.S. 208 (1986) .............................. 23

Federal Court Opinions

Bethea v. Deal, CASE NO. CV216-140, 2016 U.S. Dist. LEXIS 144861 (S.D. Ga. Oct. 19, 2016) .............................................................. 11, 12, 14

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Coalition v. Raffensperger, CIVIL ACTION FILE NO. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996 (N.D. Ga. May 14, 2020) ........................................................................ 11, 12, 20, 22, 23, 24, 25, 26

Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004) .................................. 19

Jacobson v. Fla. Sec’y, No. 19-14552, 2020 U.S. App. LEXIS 13714 (11th Cir. Apr. 29, 2020) .................................................................................. 24

Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) ...................... 26

Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020) ...................................... 17

Mays v. Thurston, No. 4:20-cv-341 JM, 2020 U.S. Dist. LEXIS 54498 (E.D. Ark. Mar. 30, 2020) ..................................................... 11, 13, 14, 16

Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) .................... 22

Tex. Democratic Party v. Abbott, No. 20-50407, 2020 U.S. App. LEXIS 17564 (5th Cir. June 4, 2020) .. 8, 11, 13, 17, 18, 20, 22, 23, 24, 26-27, 30

Thompson v. Dewine, 959 F.3d 804 (6th Cir. May 26, 2020) ... 13, 26, 30

Thompson v. Dewine, No. 20-3526, 2020 U.S. App. LEXIS 16650 (6th Cir. May 26, 2020) ............................................................................ 13, 30

Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) .................................... 28

Tennessee State Constitution

Tenn. Const. Art. I, § 5 ........................................................................... 11

Tenn. Const. Art IV, § 1 ......................................................................... 11

Tennessee Opinions

Bemis Pentecostal Church v. State, 731 S.W.2d 897 (Tenn. 1987) ...... 11

Bredesen v. Tenn. Judicial Selection Comm’n, 214 S.W.3d 419 (Tenn. 2007) ................................................................................................... 21-22

City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013) ................ 9, 27

Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001) .................... 22

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Other State and U.S. Territory Cases

Chi. Bar Ass’n v. White, 386 Ill. App. 3d 955 (2008) ............................ 28

Dean v. Jepsen, No. CV106015774, 2010 Conn. Super. LEXIS 2778 (Conn. Super. Ct. Nov. 3, 2010) ............................................................. 28

Duenas v. Guam Election Comm'n, 2008 Guam 1 (Guam 2008) ......... 28

Liddy v. Lamone, 398 Md. 233 (2007) ................................................... 28

State ex rel. Owens v. Brunner, 125 Ohio St. 3d 130 (2010) ................ 28

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INTEREST OF AMICI CURIAE1

Amicus Curiae, Republican National Committee (the “RNC”) is a

national political party committee and the national political organization

of the Republican Party of the United States. The RNC represents the

interests of Republican voters and candidates at all levels throughout the

nation including Tennessee and is dedicated to growing support for the

party and its candidates through its grassroots programs. Both

nationwide and in Tennessee, the RNC engages in a wide range of party-

building activities including voter registration, voter persuasion, and

voter turnout programs, and supports candidates at the local, state, and

national levels. In short, the RNC has expertise in conducting voter

outreach and voter engagement, and both can offer a perspective that will

be helpful to the Court and has a significant interest in the outcome of

this case.

Amicus Curiae, Tennessee Republican Party (“TRP”) is the state

party organization of the Republican Party for the State of Tennessee.

TRP shares the RNC’s interest and expertise in voter outreach in

Tennessee. Furthermore, the TRP is composed of voters and candidates

from within the State of Tennessee. Accordingly, it has an interest in

ensuring Tennessee’s elections are carried out in a legitimate, secure, and

organized manner.

1 Amici curiae adopt Defendants-Appellants’ prior Statement of the Questions Presented for Review and Statement of the Relevant Facts.

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INTRODUCTION AND SUMMARY OF ARGUMENT

This Court should reverse the Chancery Court’s erroneous decision

prohibiting the State of Tennessee from enforcing duly enacted state

election laws that prevent election fraud, preserve voter confidence in the

integrity of elections, and ensure the orderly administration of elections.

Simply put, this is a case about the State of Tennessee’s elected branches’

policy choices and the Plaintiffs’ effort to alter that policy by judicial fiat

in contravention of well-established precedent. Respectfully, this Court

should not affirm such action by the Chancery Court.

In forcing Tennessee to implement no-excuse absentee voting

through judicial fiat, the Chancery Court both reached the incorrect legal

conclusion, splitting with established jurisprudence, and exceeded its

authority under the State and Federal Constitutions. First, the Chancery

Court incorrectly held that Tennessee’s “excuse requirement” implicated

Plaintiffs’ voting rights, despite the inescapable reality that countless

other courts have refused to recognize a fundamental right to vote by

absentee ballot. Second, the Chancery Court doubled down on that

incorrect voting rights analysis and applied the Anderson-Burdick

framework to Plaintiffs’ claims. The Anderson-Burdick framework is

reserved for judicial examinations of election laws that burden voting

rights. Since no voting rights are implicated by Tennessee’s absentee

voting scheme, the Chancery Court’s application of Anderson-Burdick

was just plain wrong. Third, the Chancery Court exceeded its authority

in ruling on a matter reserved expressly and exclusively to the legislature

by the United States and Tennessee Constitution, violating separation of

powers and political question doctrine. Fourth, the Chancery Court failed

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to take the impeding elections—in which early voting begins in just over

one week from the date this brief is submitted—into account when

issuing its injunction. Such last-minute intrusion into election

administration is precluded by The United States Supreme Court’s

Purcell Doctrine.

This Court should reverse the Chancery Court’s erroneous issuance

of the temporary injunction.

ARGUMENT

Of course, there will always be other voters for whom, through no fault of the state, getting to the polls is “difficult” or even “impossible.” But as the Court explains, that is a matter of personal hardship, not state action. For courts to intervene, a voter must show that the state “has in fact precluded [voters] from voting”—that the voter has been “prohibited from voting by the State.”

Tex. Democratic Party v. Abbott, No. 20-50407, 2020 U.S. App. LEXIS

17564 at *44-45 (5th Cir. June 4, 2020) (Ho, J., concurring) (internal

citations omitted) (quoting McDonald v. Bd. of Election Comm’rs, 394

U.S. 802, 810, 810 n.8, 808, 808 n.7 (1969)); see also Tex. Democratic

Party, 2020 U.S. App. LEXIS 17564 at *24. Plaintiffs’ requested

injunction should have failed due to the simple, undisputable fact that

the current pandemic2 is not caused by the State of Tennessee and the

State of Tennessee has attempted a reasonable and thoughtful response

2 For simplicity Amici will typically refer to COVID-19, SARS-CoV-2, or coronavirus as “the virus” or “the pandemic.”

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to expand the ability to vote while ensuring its broad interest in the

integrity of its elections is maintained.3

Plaintiffs below sought to usurp the exclusive lawmaking authority

of the people of Tennessee—as exercised by their duly elected legislative

officials—in favor of foisting upon the State Plaintiffs’ own policy

preferences. They did so even on the eve of impending elections. The

Chancery Court was happy to oblige them in contravention of the

precedent of this Court and the United States Supreme Court.

I. Tennessee’s Absentee Voting “Excuse Requirement” Does Not

Implicate Voting Rights As Recognized By The Courts.

Despite the Chancery Court’s decision to the contrary, Tennessee’s

requirement that voters have an excuse to vote by absentee ballot does

not implicate voting rights as recognized by courts. The “harm” Plaintiffs

allege is a deprivation of their right to vote by absentee ballot because of

the current pandemic. But, because there is no constitutional right to

vote absentee, this harm is not traceable to state action and does not

present a legally significant harm. Plaintiffs’ lack of cognizable harm

should have had at least two fatal implications for their claims below.

First, the Chancery Court should have dismissed the case for lack of

standing because there is no cognizable constitutional harm to Plaintiffs’

rights. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Gill v.

3 In examining Tennessee’s voting rights cases under Tenn. Const. Art. I, § 5 and Tenn. Const. Art IV, § 1 this Court has at least partially adopted the voting rights jurisprudence of the United States Supreme Court. See generally City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013).

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Whitford, 138 S. Ct. 1916, 1929 (2018) (a plaintiff must show that they

“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial opinion“) (quoting Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016)) (emphasis added). Second, even if Plaintiffs had

standing, the Chancery Court certainly should have denied Plaintiffs’

requested injunction. Because the Chancery Court failed to do either, it

erred as a matter of law.

A. Plaintiffs’ “Harm” Is Not Traceable To State Action, But To The Virus.

Neither the Plaintiffs nor the Chancery Court assert that the

Tennessee Absentee Ballot Excuse Requirement is unconstitutional writ

large, but only that it is temporarily unconstitutional due to the virus.

See, e.g., Slip Op. at 4 (“The issue, then, for this Court is whether, in this

time of the pandemic, the States’ [sic] construction and application of

Tennessee law constitutes an unreasonable and discriminatory burden

on the fundamental right to vote vigorously guaranteed by the Tennessee

Constitution.” (emphasis added)); id. at 5 (“[T]he Court concludes that

the State’s restrictive interpretation and application of Tennessee’s

voting by mail law (Tennessee Code Annotated section 2-6-201), during

the unique circumstances of the pandemic, constitutes an unreasonable

burden on the fundamental right to vote guaranteed by the Tennessee

Constitution.” (emphasis added)). In effect, Plaintiffs’ claims and their

alleged harm, as well as the Chancery Court’s decision below, hinge

entirely on the virus. Id.

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Plaintiffs’ claims should have failed at the Chancery Court because

every one of those claims requires state action. See Tenn. Const. Art. I, §

5 and Tenn. Const. Art IV, § 1; see also Bemis Pentecostal Church v.

State, 731 S.W.2d 897, 901 (Tenn. 1987) (discussing the “individual and

fundamental" right to vote under the state and federal constitutions). The

virus is not state action. Tex. Democratic Party, 2020 U.S. App. LEXIS

17564 at *24 (finding that “the Constitution is not offended” even if voting

is impossible “because of circumstances beyond the state’s control, such

as the presence of the Virus.”); Coalition for Good Governance v.

Raffensperger, No. 1:20-cv-1677, 2020 U.S. Dist. LEXIS 86996 at *9 n.2.

(N.D. Ga. May 14, 2020).

Moreover, it cannot be reiterated enough that for every single rule

they challenge, there is a more or equally “restrictive” version of that rule

that was perfectly lawful before the virus. To that end, an otherwise

constitutional (or statutorily compliant) law is not made less

constitutional (or compliant) by non-state action such as the virus. See,

e.g., Bethea v. Deal, No. CV216-140, 2016 U.S. Dist. LEXIS 144861 at *7

(S.D. Ga. Oct. 19, 2016); Mays v. Thurston, No. 4:20-cv-341 JM, 2020 U.S.

Dist. LEXIS 54498 at *4-5, *4-5 (E.D. Ark. Mar. 30, 2020).

States throughout the country, including Tennessee—as the

Chancery Court admits—have taken measures to protect “the right to

vote during this global pandemic” by taking actions including

“suspending the normal prerequisites . . . for requesting an absentee

ballot” and encouraging “social distancing and other protections” while

voting in person. Mays, 2020 U.S. Dist. LEXIS 54498 at *4-5. With that

backdrop, “[t]he real problem [for Plaintiffs] here is COVID-19, which all

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but the craziest conspiracy theorist would concede is not the result of any

act or failure to act by the Government.” Coalition, 2020 U.S. Dist. LEXIS

86996 at *9 n.2. It is undeniable that the virus has impacted the lives of

Tennesseans, but “these circumstances are not impediments created by

the state.” Bethea, 2016 U.S. Dist. LEXIS 144861 at *7. “While Plaintiffs

contend that Defendants have done a poor job of responding to [the virus],

the fact that the virus’s provenance was not through Defendants further

increases, in this Court’s opinion, the impropriety of judicial

intervention.” Coalition, 2020 U.S. Dist. LEXIS 86996 at *9 n.2; cf.

Bethea, 2016 U.S. Dist. LEXIS 144861 at *6-7.

Nearly every other court to consider one of these cases has

concluded similarly. A number of courts, including the United States

Courts of Appeals for the Fifth and Sixth Circuits, have specifically relied

upon, at least in part, the fact that the virus—or another natural

disaster—does not present state action as reason to stay a grant of

preliminary injunction, dismiss claims, or to deny a motion for

preliminary injunction.

In Texas Democratic Party v. Abbott, a Fifth Circuit motions panel,

upon granting a motion to stay the Western District of Texas’ order

granting a preliminary injunction, held that:

The Constitution is not “offended simply because some” groups “find voting more convenient than” do the plaintiffs because of a state’s mail-in ballot rules. That is true even where voting in person “may be extremely difficult, if not practically impossible,” because of circumstances beyond the state's control, such as the presence of the Virus.

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2020 U.S. App. LEXIS 17564 at *24 (emphasis added) (quoting

McDonald, 394 U.S. at 810). The Fifth Circuit indicated that the result is

similar in the VRA context. See id. at *24 n.32 (“And here, unlike in

Veasey [v. Abbott], the state has not placed any obstacles on the

plaintiffs’ ability to vote in person.” (emphasis in original)). The lack of

state action is further emphasized in the concurring opinion, which notes

“[f]or courts to intervene, a voter must show that the state ‘has in fact

precluded [voters] from voting.’” Id. at 44-45 (Ho, J. concurring)

(emphasis in original) (quoting McDonald, 394 U.S. at 808 & n.7)).

In a case before the United States Court of Appeals for the Sixth

Circuit, plaintiffs were challenging the signature gathering requirement

of Ohio’s ballot-initiative laws in light of the virus. Thompson v. Dewine,

959 F.3d 804, 806 (6th Cir. 2020). When staying the District Court’s order

granting plaintiffs’ preliminary injunction, the Sixth Circuit noted the

lack of state action inherent in claims resting upon the foundation of the

virus as rationale. Id. at 810 (“[J]ust because procuring signatures is now

harder (largely because of a disease beyond the control of the State)

doesn’t mean that [p]laintiffs are excluded from the ballot.”). The court

went further by noting that both First Amendment and Section 1983

actions require state action. Id. at 810-811 (going on to discuss the

implication under the Anderson-Burdick standard).

In Mays v. Thurston, plaintiffs sought a mandatory temporary

restraining order that the Governor of Arkansas “do more to ensure that

Arkansans are allowed to have their vote counted by absentee ballot.” No.

4:20-cv-341 (JM), 2020 U.S. Dist. LEXIS 54498 at *2. The District Court

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found that the plaintiffs lacked Article III standing. Id. at *4-5.

Specifically, the court stated that:

Plaintiffs have failed to articulate an injury suffered at the hands of . . . any . . . state official. Plaintiffs’ right to vote during this global pandemic have been made easier by the Governor’s . . . executive order suspending the normal prerequisites for requesting an absentee ballot. Plaintiffs complain that the Governor did not do enough. However, Plaintiffs’ injury, if any, will occur only if they did not follow the absentee voting requirements as loosened by the Governor or if they do not show up to vote at a designated voting place exercising the social distancing and other protections suggested by the State and the federal government. Any injury caused by Plaintiffs’ failing to take advantage of these available avenues to exercise their rights to vote are not caused by or fairly traceable to the actions of the State, but rather are caused by the global pandemic. Therefore, the Court finds that Plaintiffs do not have standing to pursue their requested remedy.

Id. (emphasis added).

The analysis of a requirement for government action is also not

limited to those surrounding the pandemic. In Bethea v. Deal, plaintiffs,

including the NAACP, sought a statewide mandatory preliminary

injunction seeking to extend the voting registration deadline in response

to Hurricane Matthew, alleging, inter alia, violations of the Fourteenth

Amendment and Section 2 of the Voting Rights Act. 2016 U.S. Dist.

LEXIS 144861 at *3-4. The court found that the plaintiffs’ Section 2 and

Fourteenth Amendment arguments “relie[d] on the unsupported notion

that Defendants’ decision not to extend the [voter] registration deadline

was some sort of action that created an impediment to the right to vote.”

Id. at *6. The District Court was “unable to locate any precedent that

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would constitutionally or statutorily mandate that Defendants provide

an extension in the absence of actual government action that burdens an

individual’s right to vote.” Id. (emphasis added). The court goes on to

discuss how the fact that the hurricane coincided with an election “made

it difficult, but not impossible” for affected residents to vote and, in any

event, “these circumstances [were] not impediments created by the

State.” Id. at *7.

In the wake of Hurricane Katrina, the Eastern District of Louisiana

dismissed the request of a group of plaintiffs to extend the deadline for

counting absentee ballots. Assoc. of Communities for Reform Now v.

Blanco, No. 2:06-cv-611, Order at 1-2 (E.D. La April 21, 2006) (ECF No.

58). The court noted that plaintiffs’ alleged harms “do not rise to the level

of a constitutional or Voting Rights Act violation.” Id. at 3. The court

further noted that “[i]t is ironic that a step taken by the State, apparently

to allow as many displaced voters as possible the ability to request and

receive and absentee ballot . . . is now being challenged as having the

exact opposite effect.” Id. The court then reminded plaintiffs that “our

evacuation emanated from a natural disaster that ravaged [New

Orleans] casting thousands of our fellow citizens across the face of

America. Hurricane Katrina (and Rita) crossed all divides, human-made

and others.” Id. at 5. Finally, in light of the state officials’ work to

“ameliorate the impact” of the natural disaster, the court held that the

plaintiffs’ claims that the “[State’s] efforts will ‘disenfranchise’ minority

voters is disingenuous.” Id.

Because Plaintiffs’ alleged injuries under the Tennessee

Constitution “are not caused by or fairly traceable to the actions of the

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State, but rather are caused by the global pandemic”, Mays, 2020 U.S.

Dist. LEXIS 54498 at *4-5, the Chancery Court should not have granted

Plaintiffs’ requested injunction, but instead should have dismissed

Plaintiffs’ claims for lack of standing. See Lujan, 504 U.S. at 560-61; Gill,

138 S. Ct. at 1929; Spokeo, Inc., 136 S. Ct. at 1547.

B. Tennessee’s Excuse Requirement Does Not Present Cognizable Harm Because There Is No Right To Absentee Voting And Anderson-Burdick Therefore Does Not Apply To This Case.

Tennessee’s requirement that voters have an “excuse” to vote by

absentee ballot does not confront Plaintiffs with legally cognizable harm

because there is no fundamental right to absentee voting. The Chancery

Court’s decision to the contrary is without precedent and erroneous. It

logically follows then, that the Chancery Court’s application of Anderson-

Burdick, which is reserved for election laws implicating voting rights, is

similarly erroneous.

Tennessee’s excuse requirement only applies to voting by absentee

ballot. No state action has made voting in person any more difficult than

it was in previous years. See generally supra. In fact, just the opposite is

true. Tennessee has actually made it easier to vote in light of the

pandemic. (See App. 4, 7, 9-18, 20-100, 104, 110-11, 115-16, 120, 124-25

(discussing Tennessee’s Election COVID-19 Contingency Plan “the

Plan”)); see also Slip Op. at 3 (discussing the social distancing and

sanitation measures at polling places). Accordingly, in-person voting not

only remains available, but is more accommodating than in previous

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elections. Therefore, just as was the case in Texas Democratic Party v.

Abbott, “[t]he plaintiffs are welcome and permitted to vote, and there is

no indication that they are in fact absolutely prohibited from voting by

the State. So the right to vote is not ‘at stake,’ and rational-basis review

follows.” Tex. Democratic Party, 2020 U.S. App. LEXIS 17564, *22-23

(citing McDonald v. Board of Election Comm’rs, 394 U.S. 802, 807-11, n.7

(1969)) (internal quotation marks and citations omitted).

As the United States Court of Appeals for the Sixth Circuit, the

United States Supreme Court, and other courts have repeatedly

emphasized, “there is no constitutional right to an absentee ballot.” Mays

v. LaRose, 951 F.3d 775, 792 (6th Cir. 2020) (citing McDonald, 394 U.S.

at 807-809). Accordingly, when there is no indication that a State has

made it more difficult to vote in-person, but have imposed some limit on

absentee voting, “[i]t is thus not the right to vote that is at stake here but

a claimed right to receive absentee ballots.” McDonald, 394 U.S. at 807.

But there is no cognizable constitutional right to receive absentee ballots.

Id. at 807-809. Accordingly, unless the state “in fact absolutely

prohibited” a plaintiff from voting in any method, the state has not

implicated their voting rights. McDonald, 394 U.S. at 808 n.7.

The seminal United States Supreme Court decision that squarely

governs this issue in federal jurisprudence is McDonald v. Board of

Election Commissioners. In McDonald, the United States Supreme Court

held that an Illinois statute denying certain inmates mail-in ballots did

not restrict their right to vote. Id. at 807. Instead, it burdened only their

asserted right to an absentee ballot, because there was no evidence that

the state would not provide them another way to vote. Id. at 807-08. Put

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differently, there was no indication that the inmates were “in fact

absolutely prohibited from voting by the State[.]” Id. at 808 n.7 (emphasis

added). The absentee rules did “not themselves deny [the inmates] the

exercise of the franchise; nor, indeed, d[id] Illinois' Election Code so

operate as a whole[.]” Id. at 807-08. Accordingly, the McDonald Court

applied only rational-basis review, not strict scrutiny, and easily upheld

the absentee-ballot scheme. Id. at 808-11. The state’s refusal to give the

inmates a mail ballot was not irrational, “particularly in view of the many

other classes of Illinois citizens not covered by the absentee provisions,

for whom voting may [have been] extremely difficult, if not practically

impossible.” Id. at 809-10.

Following in McDonald’s footsteps, a Fifth Circuit motions panel

recently stayed a preliminary injunction issued in the Western District

of Texas that allowed every voter to vote absentee if they had a “fear” of

contracting the virus. See Tex. Democratic Party, 2020 U.S. App. LEXIS

17564 at 39. The facts in Tex. Democratic Party generally track the facts

as they are presented to this Court. For example, the Texas Plaintiffs

accused the state of, inter alia, violations of the First and Fourteenth

Amendments. See Texas Democratic Party v. Abbott, No. 20-cv-438 (W.D.

Tex.) (filed April 7, 2020) (ECF No. 9 – Amend. Compl.) (ECF No. 15 –

Motion for Preliminary Injunction). Like Tennessee, “Texas has similarly

decided to give only some of its citizens the option to vote by mail.” See

Tex. Democratic Party, 2020 U.S. App. LEXIS 17564 at *22.

Unsurprisingly, other circuits have similarly held that there is no

right to an absentee ballot for all. For example, in Griffin v. Roupas, the

Seventh Circuit upheld a district court’s motion to dismiss a claim on

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behalf of “working mothers who contend that because it is a hardship for

them to vote in person on election day, the United States Constitution

requires Illinois to allow them to vote by absentee ballot.” 385 F.3d 1128,

1129 (7th Cir. 2004) (Posner, J. for a unanimous panel). In affirming the

district court’s opinion, the Seventh Circuit noted that:

In essence the plaintiffs are claiming a blanket right of registered voters to vote by absentee ballot. For it is obvious that a federal court is not going to decree weekend voting, multi-day voting, all-mail voting, or Internet voting (and would it then have to buy everyone a laptop, or a Palm Pilot or Blackberry, and Internet access?). That leaves as the only alternative that will satisfy the plaintiffs a general hardship exemption from the requirement of in-person voting; and as a practical matter that means absentee voting at will. For “hardship” is a subjective category dependent on personal circumstances that cannot be codified but must be left to the judgment of each voter. It is hardly to be supposed that election officials would require proof of hardship or question claims of hardship; the necessary inquiry would be unmanageable.

Id. at 1130. The court goes on to note that “voter fraud is a serious

problem in U.S. elections” and the many other problems created by

absentee voting. See id. at 1130-31.

Here, Tennessee has not created any burden on the right to vote,

but has only made it easier to vote in person. Tennessee has done so while

retaining some absentee voting requirements. “[T]his is not a case in

which the state applied its own policy, adopted a rule, or enacted a

statute that burdened the right to vote. In other words, this is not

Burdick v. Takushi, 504 U.S. 428, 112 S. Ct. 2059, 119 L. Ed. 2d 245

(1992), or Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564, 75 L.

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Ed. 2d 547 (1983).” Coalition, 2020 U.S. Dist. LEXIS 86996 at *9 n.2.

Instead, Plaintiffs’ arguments that every voter be permitted to vote by

absentee ballot in light of the virus should have failed in light of the

Supreme Court’s holding in McDonald and the recent holding by a Fifth

Circuit motions panel in Texas Democratic Party.

Accordingly, there is absolutely no burden on the right to vote, and

Tennessee’s excuse requirement for absentee voting must only be subject

to rational basis review, not the Anderson-Burdick intermediate

balancing test. Under rational basis review, “[t]he law need only ‘bear

some rational relationship to a legitimate state end.’” Tex. Democratic

Party, 2020 U.S. App. LEXIS 17564 at 27. The State has offered at least

three legitimate ends that are rationally related to not allowing every

voter to vote absentee: (1) prevent election fraud; (2) preserve voter

confidence in the integrity of elections; and (3) ensure the orderly

administration of elections. The Chancery Court’s decision to apply

Anderson-Burdick and a heightened or intermediate form of scrutiny in

the examination of the excuse requirement is nonsensical and erroneous

as a matter of law.

Even assuming arguendo that Anderson-Burdick does apply to

Plaintiffs’ claims, which it does not, only minimal scrutiny would be

warranted because Tennessee’s excuse requirement for absentee voting

does not impose a severe burden on voting rights. First, it does not

implicate voting rights, as discussed at length supra. Second, any

minimal burden imposed on Plaintiffs would be actually be imposed by

the pandemic, not Tennessee. The important and substantial interests

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proffered by the State as justifications for the excuse requirement are

more than enough to overcome such minimal scrutiny.

II. The Chancery Court Exceeded Its Authority Because It Is Tennessee’s Legislature, Not Its Judiciary, That Has Exclusive Authority Over Election Regulations.

In enjoining Tennessee’s “excuse requirement” for absentee voting,

a duly enacted election law, the Chancery Court substituted its policy

choices for that of Tennessee’s legislature. Such substitution usurps the

authority of Tennessee’s Legislature in contravention of the Elections

Clause of the United States Constitution, U.S. Const. art. I, § 4, cl. 1, and

Article II of the Tennessee Constitution.

The Elections Clause of the United States Constitution states that

“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 [sic] Senators.” U.S. Const.

art. I, § 4, cl. 1 (emphasis added).

Article II, section 1 of the Tennessee Constitution provides: “The

powers of the Government shall be divided into three distinct

departments: the Legislative, Executive, and Judicial.” Article II, section

2, which is titled “Limitation of powers,” provides: “No person or persons

belonging to one of these departments shall exercise any of the powers

properly belonging to either of the others, except in the cases herein

directed or permitted.” These two constitutional provisions are the

cornerstone of Tennessee’s doctrine of separation of powers. See also

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Bredesen v. Tenn. Judicial Selection Comm'n, 214 S.W.3d 419, 434-36

(Tenn. 2007) (citing Baker v. Carr, 369 U.S. 186 (1962)) (analyzing

political question and separation of powers under Article II of the

Tennessee Constitution using federal jurisprudence); Mayhew v. Wilder,

46 S.W.3d 760, 773 (Tenn. Ct. App. 2001), perm. appeal denied (Tenn.

March 19, 2001), reh’g denied (Tenn. Apr. 30, 2001) (accord).

Issues that are “entrusted to one of the political branches or

involve[] no judicially enforceable rights . . . present a political question .

. . outside the courts’ competence and therefore beyond the courts’

jurisdiction.”4 Rucho v. Common Cause, 139 S. Ct. 2484 at 2494 (internal

quotations omitted). As it is Plaintiffs’ burden to prove jurisdiction,

Ramming v. United States, 281 F.3d 158 at 161, “[a]bsent pellucid proof

provided by plaintiffs that a political question is not at issue, courts

should not substitute their own judgments for state election codes.”

Coalition, No. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996 at *9. The

purpose of the political question doctrine is to “protect[] the separation of

powers and prevent[] federal courts from overstepping their

4 The opinion in Texas Democratic Party does not reduce the potency of the political question doctrine in the present case. Plaintiffs here go even further than the Texas plaintiffs in seeking judicial enactment of their policy preferences. See 2020 U.S. App. LEXIS 17564 at *12-13. This suit, similar to the suit in Georgia, “challenge[s] the wisdom of” Tennessee’s policy choices. See id (emphasis in original). While, the Fifth Circuit determined it “need not . . . consider the prudence of Texas’s plan” because those plaintiffs failed to raise it, see id., Plaintiffs here specifically made Tennessee’s policy choices a fundamental feature of their arguments, and the Chancery Court made Tennessee’s policy choices a fundamental feature of its decision. See, e.g., Slip Op. at 2-4.

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constitutionally defined role.” Baker, 369 U.S. at 210. “That the line

might have been drawn differently” in response to the virus, or general

contingency for absentee voting during a pandemic, “is a matter for

legislative, rather than judicial, consideration.” Tex. Democratic Party,

2020 U.S. App. LEXIS 17564 at *28 (internal quotations omitted).

The United States Supreme Court has found at least six areas

where courts are not competent to render a decision, any one of which

causes the case to present a non-justiciable political question outside the

judicial expertise:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker, 369 U.S. at 210. At least two of these factors is implicated here:

(1) “a textually demonstrable constitutional commitment of the issue to

a coordinate political department;”5 and (2) “a lack of judicially

5 The regulation of congressional elections is conferred by the federal constitution to the States via the Elections Clause. See U.S. Const. art. I, § 4, cl. 1; see also U.S. Const. art. II, § 1 (granting to the state legislatures the power to appoint electors for presidential elections). The states also retain their own plenary power to regulate state elections. See Tex.

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discoverable and manageable standards for resolving it.” Id. Therefore, it

is not for courts to second guess the policy choices of the State in response

to the Virus, see Tex. Democratic Party, 2020 U.S. App. LEXIS 17564 at

29; see also id. at *40 (Ho, J. concurring), especially when there exist no

judicially manageable standards for it to do so. See Coalition, No. 1:20-

cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996 at *9.

A. There Exist No Judicially Manageable Standards to Determine State Policy in Response to the Virus.

The second Baker factor asks whether there exist “judicially

discoverable and manageable standards for resolving” the question at

issue. Baker, 369 U.S. at 210. Before a court conducts any analysis on

whether the right to vote is burdened, it must “identify the burden before

[it] can weigh it.” Jacobson v. Fla. Sec’y, No. 19-14552, 2020 U.S. App.

LEXIS 13714 at *54-55 (Pryor, W. J. concurring) (quoting Crawford v.

Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J. concurring

in judgment)). Here, the burden, if any, arises from the virus and not any

action of the State. See supra. However, even assuming that state action

is implicated here, there are no judicially manageable standards to

Democratic Party, 2020 U.S. App. LEXIS 17564 at *29; Tashjian v. Republican Party, 479 U.S. 208, 217 (1986). In either event, the power to regulate and administer elections is committed to “Congress and state legislatures—not courts.” See Coalition, No. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996 at *8-9; Clapper, 568 U.S. at 408 (“The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.”).

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determine what measures must be taken to regulate elections in light of

the pandemic. As the Northern District of Georgia recently articulated:

“How early is too early for the election to be held in light of COVID-19? How many safeguards must be in place to protect those who would choose to vote in person from the possibility of contracting COVID-19? Have Defendants already implemented enough safeguards to avoid a constitutional violation? Plaintiffs have provided the Court with no non-speculative way to answer these questions . . . .”

Coalition, No. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996 at *6. The

exact same is true here.

Plaintiffs sought various prohibitory and mandatory injunctions,

effectively rewriting portions of Tennessee’s election code, and the

Chancery Court at least partially agreed on the issue of the excuse

requirement for absentee voting. But how far to expand voting

mechanisms including absentee voting during the pandemic is a policy

question. For example, why is an excuse requirement impermissible in

Tennessee, but the display of website “banners on absentee voting during

the pandemic are displayed with informative links and instructions”

enough for other states such as Alabama and West Virginia? Slip Op. at

5 n.1. Why are some pandemic electoral pandemic responses favored, Slip

Op. at 2-3, but Tennessee’s do not go far enough? Id. at 3-4. As applied to

each of those questions, which is fairer? How can the judiciary determine

“fairness”? The truth is that no one knows, and this Court certainly

cannot know because “courts can address only questions ‘historically

viewed as capable of resolution through the judicial process.’” Rucho, 139

S. Ct. at 2493-94 (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)).

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As fairness is not a judicially manageable standard, “it is not even

clear what fairness looks like in this context.” Id. at 2499-50. “Because ‘it

is axiomatic that the Constitution contemplates that democracy is the

appropriate process for change’, some questions—even those existential

in nature—are the province of the political branches.” Juliana, v. United

States, 947 F.3d 1159, 1173 (9th Cir. 2020) (internal citations and some

quotations omitted). “Ultimately, ordering Defendants to adopt Plaintiffs’

[relief] would require the Court to micromanage the State’s election

process. The relief Plaintiffs seek bears little resemblance to the type of

relief plaintiffs typically seek in election cases aimed to redress state

wrongs.” Coalition, No. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996

at *9. As such, the questions put forth below presented political—not

judicial—questions that are not addressable by the courts.

III. The Purcell Doctrine Precludes The Chancery Court’s Relief.

The Supreme Court and other courts “ha[ve] repeatedly

emphasized that lower federal courts should ordinarily not alter the

election rules on the eve of an election.” Republican Nat’l Comm. v.

Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam); see

also Thompson v. Dewine, 959 F.3d 804, 813 (6th Cir. May 26, 2020); Tex.

Democratic Party, 2020 U.S. App. LEXIS 17564 at *37 (“The Court’s

[dismissal] is bolstered by the fact that Plaintiffs seek extensive relief on

the eve of/during an election”). “That is especially true where, as here, . .

. local officials are actively shaping their response to changing facts on

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the ground.”) (quoting S. Bay, 2020 U.S. LEXIS 3041 at *3); Coalition,

No. 1:20-cv-1677, 8-9 (May 26, 2020).

This doctrine exists because judicial intrusion into elections must

account for “considerations specific to election cases.” Purcell v. Gonzalez,

549 U.S. 1, 4 (2006). These considerations include the fact that “[c]ourt

orders affecting elections . . . can themselves result in voter confusion and

consequent incentive to remain away from the polls.” Id. at 4-5. “As an

election draws closer, that risk will increase.” Id. at 5.

Although Purcell is a federal case, and this Court has not yet had

an opportunity to formally adopt the Purcell Doctrine, the United States

Supreme Court’s reasoning rings equally true in the context of Tennessee

courts and challenges to Tennessee election laws. In fact, this Court has

previously cited Purcell for the proposition that “[a] State indisputably

has a compelling interest in preserving the integrity of its election

process.” Hargett, 414 S.W.3d at 103 (quoting Purcell, 549 U.S. at 4).

Other state courts have expressly adopted the Purcell Doctrine, including

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those in Connecticut,6 Illinois,7 Maryland,8 Ohio,9 and Guam.10 There is

nothing preventing this Court from formally adopting the Purcell

Doctrine, and indeed, given the impending August and November

elections and probability for electoral chaos caused by the Chancery

Court’s injunction, this Court should take this opportunity to formally

adopt the Purcell Doctrine.

Even assuming Plaintiffs’ allegations and the Chancery Court’s

decision are correct and there is a violation the Tennessee Constitution,

the Court should still decline from interfering in Tennessee’s upcoming

elections. See Reynolds v. Sims, 377 U.S. 533, 585 (1964); Veasey v.

Abbott, 830 F.3d 216, 243 (5th Cir. 2016). “In awarding or withholding

immediate relief, a court is entitled to and should consider the proximity

of a forthcoming election and the mechanics and complexities of state

election laws, and should act and rely upon general equitable principles.”

Reynolds, 377 U.S. at 585. The existence of the virus does not change this

analysis. Recently, the Supreme Court stated that “changing the election

6 See Dean v. Jepsen, CV106015774, 2010 Conn. Super. LEXIS 2778 (Conn. Sup. 2010). 7 See Chicago Bar Ass’n v. White, 386 Ill. App. 3d 955, 961 (Ill. App. 2008). 8 See Liddy v. Lamone, 398 Md. 233, 250-51 (Md. 2007). 9 See State ex rel. Owens v. Brunner, 125 Ohio St. 3d 130, 139 (Ohio 2010). 10 See Duenas v. Guam Election Comm'n, 2008 Guam 1, 29 (Guam 2008).

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rules so close to the election date . . . contravened [Supreme Court]

precedent[].” Republican Nat’l Comm., 140 S. Ct. at 1207 (staying a

district court order changing election deadlines in response to the virus).

Courts must weigh such factors as the harms associated with

judicial action or inaction, the proximity of the upcoming election, the

“possibility that the non-prevailing parties would want to seek” further

review, and the risk of “conflicting orders” from such review. Purcell, 549

U.S. at 4-5; see also Reynolds, 377 U.S. at 585 (noting that withholding

relief may be proper when “an impending election is imminent and a

State’s election machinery is already in progress.”).

Here, Tennessee is on the eve of elections and in the midst of a

pandemic. As of the filing of this brief, the State and Federal Primaries

and State and County General Elections are less than one month away.

https://sos.tn.gov/products/elections/2020-election-calendar. The State

and Federal General Election is less than four months away. Id. Absentee

ballot applications and absentee ballots have been printed and widely

distributed with current law set forth in the instructions. Id. Applications

to vote absentee have been accepted since May 8, 2020. Id. Early voting

begins for the August Election begins in just days. Id. In fact, the voter

registration deadline has already passed, and the deadline to request and

absentee ballot expires in only three weeks. Id. Changing the method of

absentee balloting now will invite chaos into the system and harm more

people through voter confusion than any remedy ordered by the Court

would help. And even worse, election administrators must juggle the

change in election law while also making additional efforts to comply

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with new efforts to expand voting and make voting safer in light of the

virus.

As the Sixth Circuit Court recently said, “rewriting a state’s

election procedures or moving deadlines rarely ends with one court order.

Moving one piece on the game board invariably leads to additional moves.

This is exactly why we must heed the Supreme Court’s warning that

federal courts are not supposed to change state election rules as elections

approach.” Thompson, 959 F.3d at 813 (citing Republican Nat’l Comm.,

140 S. Ct. at 1207; Purcell, 549 U.S. at 4-5)); see also Tex. Democratic

Party, 2020 U.S. App. LEXIS 17564 at *37.

CONCLUSION

For the foregoing reasons, Amici Curiae respectfully requests this

Court reverse the decision of the Chancery Court and vacate its

temporary injunction.

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Respectfully submitted,

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY, PLLC Jason Torchinsky * jtorchinsky@hvjt.law Dennis W. Polio * dwpolio@hvjt.law Jonathan P. Lienhard * jlienhard@hvjt.law 45 N. Hill Dr., Suite 100 Warrenton, VA 20186 (540) 341-8808 * Pro hac vice pending

LEWIS THOMASON By: s/ Justin Joy Justin N. Joy (TN BPR 023722) JJoy@LewisThomason.com 40 S. Main St., Suite 2900 Memphis, TN 38103-5529 (901) 525-8721

Attorneys for Amici Curiae Republican National Committee and Tennessee Republican Party

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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief complies with the word

limitation provided in Tennessee Supreme Court Rule 46, Sec. 3.02. The

foregoing brief contains 6,123 words in Century (14 point) font, exclusive

of the Title/Cover page, Table of Contents, Table of Authorities, and

Certificate of Compliance. The word processing software used to prepare

this brief was Microsoft Word for Microsoft 365.

s/ Justin Joy

CERTIFICATE OF SERVICE

I certify that this document was electronically lodged on July 9,

2019. Pursuant to Tennessee Supreme Court Rule, Section 4.01, the e-

filing system will automatically generate and send by e-mail a notice of

filing along with the document to all registered users participating in the

case.

s/ Justin Joy

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