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Tennessee defends ban on sharing absentee ballot forms at Sixth Circuit

A state law makes it a felony to give another person an absentee ballot application even though they are freely available online.

CINCINNATI (CN) — The Sixth Circuit heard oral arguments Thursday in a case seeking to overturn a Tennessee law that prohibits anyone but election officials from handing out absentee ballot applications.

The Tennessee State Conference of the NAACP, the Equity Alliance and others argued before a three-judge panel of the Cincinnati-based appeals court that the Volunteer State’s law governing who can distribute absentee ballot request forms violates free speech protections.

While the absentee ballot application is available on the Tennessee secretary of state's website for anyone to download and print, a state law makes it a felony for a person to give it to anyone else, even if they are a family member or spouse. The law only allows election officials to hand out the physical ballot application.

The challenge reached the Sixth Circuit after U.S. District Judge Eli Richardson ruled in favor of the state last year after finding no First Amendment violation.  

“Accordingly, the Court concludes that the Law does not restrict expressive conduct and thus is not within the scope of the First Amendment,” wrote Richardson, a Donald Trump appointee.

Arguing on behalf of the civil rights groups Thursday, attorney Danielle Lang of the Campaign Legal Center told the three-judge panel the law prevents the exercise of free speech.

 “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.

Both in her oral arguments and in a brief submitted to the court, Lang claims the law discriminates against important political speech by outright prohibiting it and that the lower court had erred in denying an injunction against the law.

“Plaintiffs plausibly allege that the Law—which criminalizes the distribution of a form that the State makes freely available on the internet and even when a potential voter requests it as part of an ongoing political conversation with Plaintiffs—is not tailored and cannot survive any meaningful scrutiny,” the brief states.

U.S. Circuit Judge Eric Murphy raised questions about the ramifications of the law and how it could be viewed as criminalizing conduct without people knowing they are committing a crime.

“I worry about all the people who don’t know about this law. So all those people who like randomly print out the thing and give it to their spouse, they may have committed a crime,” said Murphy, a Trump appointee. “That seems problematic.”

Lang agreed with Murphy about the overbreadth of the law, even if that issue is not directly related to the lawsuit’s First Amendment claims.

Attorney Clark Hildabrand represented the Tennessee Attorney General’s and said the law protects legitimate government interests.

“It’s been around awhile, but there are still important state interests that are there for making sure that the voter has a direct interaction with the county election commissions and state election commission,” Hildabrand said. 

U.S. Circuit Judge Helene White, a George W. Bush appointee, questioned Hildabrand on what is considered expressive speech.

“Isn’t handing somebody a form expressive?” White said about the ballot applications.

Hildabrand responded by saying that it is not, as other courts have ruled that handing someone an application could mean many different things and that the form itself is not necessarily individual speech.

“Here, the state-created form is not the private individual’s speech in and of itself there,” Hildabrand said.

Lang concluded the hearing by arguing the lower court had failed to address the civil rights groups' claim about free association.

“The associational claim was not addressed at all by the district court, and is a distinct claim,” she said. “The engagement of voters is a manner of association with those voters. It's also the way in which the NAACP and other groups come together as members to engage in membership activity.”

Filling out the panel was U.S. Circuit Judge David McKeague, a George W. Bush appointee. The court did not indicate when it would issue a ruling.

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