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Sixth Circuit Reinstates Tennessee Restrictions on First-Time Voters

A divided appeals panel put back in place a Tennessee law that prohibits first-time voters from using absentee ballots, after finding the underlying challenge had been mooted.

CINCINNATI (CN) --- The NAACP cannot challenge Tennessee's restrictions on first-time voters because the member it used to establish standing in a federal lawsuit is no longer eligible to vote via absentee ballot, the Sixth Circuit ruled Tuesday.

The Tennessee branch of the NAACP and one of its members, Corey Sweet, filed a lawsuit alongside the Memphis A. Philip Randolph Institute in May 2020 challenging the Volunteer State's requirement that first-time voters appear in person to cast their first ballot.

Sweet, a college student attending Xavier University in Louisiana at the time, claimed he was unsure how to vote in the 2020 election and didn't know whether he was eligible for an absentee ballot.

A federal judge granted the voting rights groups' motion for a preliminary injunction last September, preventing Tennessee from enforcing in-person voting requirements on first-time voters.

The state appealed the decision and the case was argued before a Sixth Circuit panel in December, with both parties focused on the plaintiffs' ability to meet federal standing requirements.

In Tuesday's ruling, U.S. Circuit Judge Julia Gibbons, an appointee of George W. Bush, said that changes in circumstances since the filing of the case deprived the NAACP of standing to challenge the law and mooted Sweet's claims.

While Sweet's status as a member of the civil rights group was questioned at the district court level, that point was irrelevant in Gibbons' analysis, which focused on the interplay between Tennessee's restrictions and the Covid-19 pandemic, as well as intervening events that rendered Sweet's claims moot.

Last August, the Tennessee Supreme Court issued an injunction that allowed any individual with a "special vulnerability to Covid-19" to vote via absentee ballot in the 2020 election, and Gibbons pointed out that Sweet does not fall in that category.

She also noted that because he transferred to the University of Memphis in July 2020, he no longer fits any other category of Tennessee resident allowed to vote absentee.

"Simply put," Gibbons wrote, "the relief plaintiffs are requesting no longer has a real impact on Sweet's legal interests. If the outcome of this case will not affect his legal interests, Sweet's claim is moot."

The three-judge panel's majority rejected the NAACP's argument that its claim is "capable of repetition, yet evading review," and ruled the Covid-19 pandemic renders the case a "unique factual situation."

"Sweet's alleged injury and the plaintiffs' motion for a preliminary injunction are inextricably tied to the Covid-19 pandemic, a once-in-a-century crisis," Gibbons said. "Fortunately, because of advancements in Covid-19 vaccinations and treatment since this case began, the Covid-19 pandemic is unlikely to pose a serious threat during the next election cycle."

She concluded, "There is not a reasonable expectation that Sweet, other members of the plaintiff organizations, or the public will face the same burdens as voters did in the fall of 2020."

Gibbons was joined in the majority by U.S. Circuit Judge Chad Readler, a Donald Trump appointee.

U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, wrote a 16-page dissenting opinion accusing her colleagues of "haphazardly wielding the law and the facts" in their decision.

She said Sweet's ability to establish standing at the time the suit was filed allows the NAACP to continue its challenge, despite changes in his individual situation, because of the "capable of repetition, yet evading review" doctrine.

"Considering the Tennessee NAACP's over 10,000 members and its regular voter registration activities, I have no difficulty in concluding that there is a reasonable expectation that this controversy will recur with respect to a Tennessee NAACP member in the future," Moore said.

She took issue with the majority's willingness to downplay the continued threat of the Covid-19 pandemic, and said that while "things are looking brighter, we are not out of the Covid-19 woods just yet."

"It is one thing," she said, "to be optimistic that we will be free of Covid-19 before the next election cycle, and it is quite another thing to turn that hope into a fundamental premise upon which to vacate a lawfully entered preliminary injunction."

The Campaign Legal Center, or CLC, who represented the voting rights groups during the appeal process, expressed disappointment with the court’s decision.

“It shouldn’t require a once-in-a-lifetime pandemic for Tennesseans to exercise the option to vote by mail,” said Molly Danahy, legal counsel at CLC and an attorney for the plaintiffs. “Many thousands of Tennesseans relied on mail voting for a variety of reasons in 2020 and should continue to be able to do so if that’s their choice in future elections.”

Tennessee Secretary of State Tre Hargett provided the following statement to Courthouse News after the ruling was handed down: “I commend the Tennessee Attorney General’s office for successfully defending Tennessee’s strong election integrity laws. Tennessee remains a state where it is easy to vote but hard to cheat.”

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