JEFFREY LICHTENSTEIN; MEMPHIS AND WEST
TENNESSEE AFL-CIO CENTRAL LABOR COUNCIL;
TENNESSEE STATE CONFERENCE OF THE NAACP;
MEMPHIS A. PHILIP RANDOLPH INSTITUTE; FREE
HEARTS,
Plaintiffs-Appellants,
v.
TRE HARGETT, in his official capacity as Tennessee
Secretary of State; MARK GOINS, in his official
capacity as Coordinator of Elections for the State of
Tennessee; STEVEN JOHN MULROY, in his official
capacity as District Attorney General for Shelby
County, Tennessee,
Defendants-Appellees. |
No. 22-5028 |
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:20-cv-00736—Eli J. Richardson, District Judge.
Argued: October 27, 2022
Decided and Filed: October 5, 2023
Before: McKEAGUE, WHITE, and MURPHY, Circuit Judges.
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OPINION
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MURPHY, Circuit Judge. Since 1979, Tennessee has made it a crime for anyone other
than election officials to distribute the State’s official form for applying to vote absentee. During
much of this time, Tennessee kept close guard of this form to deter fraud. But election officials
now make the form widely available online so that eligible voters may more easily apply.
According to the Plaintiffs, this change has rendered the ban on distributing the application form
“outdated.” The Plaintiffs want to hand out this form while they encourage absentee voting at
their get-out-the-vote drives. They allege that the First Amendment gives them the right to do
so. Because they seek to distribute the form while expressing a political message, they argue, we
must subject the ban to strict scrutiny. At the least, they say, we must evaluate the ban using the
so-called “Anderson-Burdick” balancing test that applies to some election challenges.
We disagree on both fronts. Tennessee’s ban prohibits an act: distributing a government
form. This act qualifies as conduct, not speech. Admittedly, the First Amendment provides
some protection to “expressive conduct.” But strict scrutiny does not apply to Tennessee’s ban
because it neutrally applies no matter the message that a person seeks to convey and because it
burdens nobody’s ability to engage in actual speech. We have also never extended Anderson-Burdick’s balancing test to this sort of speech claim. At most, the Supreme Court’s lenient First
Amendment test for neutral laws that regulate conduct applies here. And because the ban
survives this nondemanding test, we affirm the district court’s dismissal of the Plaintiffs’
complaint. |