WASHINGTON, D.C. — On Thursday, Oct. 5, a three-judge panel on the 6th U.S. Circuit Court of Appeals affirmed a lower court decision dismissing a challenge to a Tennessee law that criminalizes absentee ballot application distribution. Specifically, the law makes it a felony to distribute an absentee ballot application if you are not an employee of an election commission.
The 2-1 decision, authored by a Trump appointee and joined by a Bush appointee, stems from a lawsuit brought by civil rights groups, labor groups and a labor organizer against Tennessee Secretary of State Tre Hargett (R). The plaintiffs argued that Tennessee’s bar on absentee ballot application distribution violates the plaintiffs’ First and 14th Amendment rights to free speech and association by chilling the plaintiffs “core political speech” without serving a compelling state interest.
A lower court dismissed the lawsuit in 2021 and the plaintiffs appealed to the 6th U.S. Circuit Court of Appeals. Yesterday, the 6th Circuit affirmed the lower court’s dismissal holding that “Tennessee’s ban prohibits an act: distributing a government form. This act qualifies as conduct, not speech.”
This decision is a loss for Tennessee voters and particularly pro-voting groups who seek to ensure voters can safely and securely cast an absentee ballot. In her dissent, one judge poignantly expressed that “The majority upholds a Tennessee law that threatens to imprison persons who distribute publicly available absentee-ballot applications.”
Compounded by the fact that Tennesseans are prohibited 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,” upholding this law will be another unfortunate hurdle for Tennessee voters.