Sixth Circuit upholds Tennessee ban on the sharing of absentee ballot forms

CINCINNATI (CN) — A divided Sixth Circuit sided with Tennessee over a law that makes it a felony for non-election officials to share absentee ballot forms with another person.

The 2-1 ruling issued Thursday, agreed with the lower court that the Tennessee law does not violate free speech rights by restricting who can hand out absentee ballot applications.

U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, authored the majority’s opinion finding that the act of distributing the forms only qualifies as conduct and not speech.

Tennessee has criminalized the improper distribution of absentee ballot forms since 1979, and in 2002 responded to some confusion surrounding the rule by adding a separate ban on the distribution of the forms by non-election officials.

The original lawsuit was filed in 2020 and claimed that the rule violated free speech rights and was outdated because the forms are now freely available online through the website of Tennessee’s Secretary of State.

The plaintiffs — which include civil rights groups such as the Tennessee State Conference of the NAACP and the Equity Alliance — sought to engage in voter outreach by handing out absentee ballot applications. U.S. District Judge Eli J. Richardson dismissed the suit in 2021.

Attorney Danielle Lang of the Campaign Legal Center argued on behalf the plaintiffs during oral arguments held in Oct. 2022.

 “This case is about the First Amendment rights of civic engagement groups, to engage in basic voter education and voter engagement activity without fear of prosecution,” Lang said.

However, the panel's majority ruled that the distribution of the forms does not count as “expressive conduct” under the First Amendment, and thus is not entitled to free speech protections.

“But our job is not to decide whether the ban represents good or bad policy. That is the job of the Tennessee legislature. We may intervene to stop the enforcement of this democratically passed law only if it violates some federal standard, here the First Amendment. And under the deferential free-speech rules that, at most, apply to the Plaintiffs’ claims, the ban passes constitutional muster,” wrote Murphy.

The opinion also drew a distinction between the government-issued absentee voter form and pamphlets that offer a political message.

“Nor is it apparent to us that this unbriefed analogy to political pamphlets withstands scrutiny. For one thing, the application is a form that the State creates,” wrote Murphy. “It is safe to say that this government form does not resemble the ideological pamphlets that fueled the American Revolution.”

U.S. Circuit Judge Helene White, a George W. Bush appointee, rejected the interpretation of her colleagues.

“The majority upholds a Tennessee law that threatens to imprison persons who distribute publicly available absentee-ballot applications,” White wrote in the dissent.

White found that the act of the handing out the absentee ballot applications should be protected as a form of political speech, and criticized the finding from the majority that it was merely conduct.

“So too here — plaintiffs’ intended distribution of absentee-ballot applications is more than a simple act; it provides the means for engaging members as part of plaintiffs’ mission to promote a message that supports participation in our democracy through voting absentee,” White wrote. “Tennessee’s law directly blocks plaintiffs from sharing a form with members who need it to vote — even if they have asked plaintiffs for help — or with members as a pure educational exercise to help them understand their rights and how to assist others in voting absentee.”

White also states that the majority’s reasoning could be used to argue that other protected forms of political speech were merely acts.

“The majority’s reasoning comes dangerously close to suggesting that distribution of political pamphlets could be restricted as mere conduct,” wrote White.

Pointing to the dissent, the majority opinion mentioned that while several good policy arguments could be made on why the ban should be reconsidered, those are for the legislature and not the court to decide.

Joining Murphy in the majority was George W. Bush appointee U.S. Circuit Judge David McKeague.

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