CINCINNATI (CN) — The state of Tennessee asked a panel of judges Tuesday to reinstate a voting law that requires first-time voters to cast ballots in person, arguing the restriction helps ensure the integrity of elections.
The Volunteer State asked the Sixth Circuit in October for a decision without oral arguments so the law could be reinstated before the November election, but the Cincinnati-based appeals court refused and instead scheduled Tuesday’s hearing.
U.S. District Judge Eli Richardson, an appointee of President Donald Trump, suspended the law with an injunction in September, after the Memphis A. Philip Randolph Institute and the NAACP filed suit in federal court and claimed the Covid-19 pandemic required the state to allow more of its voters to use absentee ballots.
Richardson found the Tennessee Conference of the NAACP had associational standing to bring the suit based on testimony from 20-year-old college student and member Corey Sweet, who told the court he was unsure of how to vote in the 2020 election.
In his brief to the appeals court, Tennessee Secretary of State Tre Hargett argued Richardson lacked jurisdiction to issue the injunction because Sweet failed to meet absentee voting eligibility requirements that were wholly unrelated to the first-time voter law.
Hargett said Richardson “overstated the burden imposed by the first-time voter requirement,” a burden he called minimal at most, and argued the ruling impacted the ability of the state to verify voters and ensure the integrity of its elections.
In their brief to the appeals court, the voting rights groups argued that even if Sweet’s claim was mooted when he became ineligible to vote absentee, the NAACP’s standing is maintained because at least a portion of its more than 10,000 Tennessee members “will be similarly affected by the first-time voter restriction.”
“It would be untenable to require that only voters who were eligible to vote absentee up to and through every election day that passes during the pendency of a litigation, and who also remain first-time voters, could support associational standing of an organization with many affected members whose identity will necessarily change with each passing week and passing election,” the brief states.
Tuesday’s arguments were conducted virtually and broadcast on YouTube, with attorney Matt Cloutier arguing on behalf of Tennessee.
Cloutier told the panel the in-person voting requirement is permissible under the “broad authority” granted to states for the administration of elections under the U.S. Constitution. He also attacked the plaintiffs’ standing in the case.
The attorney said that even if Sweet was a member of the NAACP at the time the complaint was filed, he was ineligible to vote via absentee ballot when the district court entered its injunction.
U.S. Circuit Judge Karen Moore, an appointee of Bill Clinton, asked about the “capable of repetition but evading review doctrine,” and whether it would grant the NAACP standing to pursue its claims. The doctrine involves injuries that arise in the short-term and could reoccur but don’t last long enough for federal court review.
Cloutier said the voters’ rights groups asked the lower court to “bend the rules of mootness and standing” to allow their claims to proceed, and suggested they find additional members with cognizable injuries to establish standing.
Attorney Danielle Lang argued on behalf of the NAACP and its co-plaintiffs, and disputed Cloutier’s arguments about Sweet’s standing.
“As you approach an election,” she told the panel, “a number of the absentee eligibility requirements … move around.”
Lang focused on Sweet’s standing at the time the suit was filed, latching on to Moore’s question about the repetition doctrine.
“Election cases are the quintessential application of the capable of repetition but evading review doctrine,” she said.
Sweet’s membership in the NAACP was contested throughout the arguments, with Cloutier pointing out the lack of concrete evidence in the record during his rebuttal.
While he admitted Sweet attended some NAACP events, he told the panel “an inference isn’t enough.”
Unsurprisingly, Lang disagreed and told the panel, “There is no question as to his membership.”
U.S. Circuit Judge Chad Readler, a Trump appointee, peppered Lang with questions throughout her arguments, including asking whether the restriction on first-time voters would have been unconstitutional in the 2018 election cycle.
“The state isn’t the one that created the [Covid-19] pandemic,” Readler said.
The attorney replied that the Supreme Court’s so-called Anderson-Burdick balancing test requires a court to conduct an intensive, fact-based analysis specific to the case at hand, and argued the pandemic must be considered alongside the statute itself.
Readler also asked Lang why the court would grant relief to a plaintiff like Sweet who, in this case, suffered no injury.
Lang said the NAACP suffered an “ongoing injury” that established standing because other members were undoubtedly affected by the restriction on first-time voters. Readler was skeptical and said Lang was asking the court to grant relief to an unknown group of plaintiffs that may or may not exist or ever be identified.
U.S. Circuit Judge Julia Gibbons, an appointee of George W. Bush, also sat on the panel.
No timetable has been set for the court’s decision.
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