6th Circuit Court Affirms Tennessee Ban on Sharing Absentee Ballot Forms

Official absentee ballot issued in Washington on Oct. 11, 2022. Bill Clark/CQ-Roll Call, Inc via Getty Images

In a divided 2–1 opinion, the 6th U.S. Circuit Court of Appeals ruled in favor of a Tennessee law that bans the distribution of absentee ballot applications by nonelection officials. The ruling upholds a lower court’s decision, maintaining that the law does not infringe upon free speech rights.

The legislation, in place since 1979, had been challenged in 2020 by groups such as the Tennessee Chapter of the NAACP and the Memphis AFL-CIO on the grounds that it allegedly violated free speech rights protected by the First Amendment.

The central legal question was whether the act of distributing absentee ballot applications by nonelection officials constitutes protected speech or merely conduct—a question which the three-judge panel did not come to an agreement over.

Majority Opinion

“During much of this time, Tennessee kept close guard of this form to deter fraud,” wrote U.S. Circuit Judge Eric Murphy in the majority’s opinion. “But election officials now make the form widely available online so that eligible voters may more easily apply. According to the Plaintiffs, this change has rendered the ban on distributing the application form ‘outdated.’”

The plaintiffs wanted to hand out the form at “get-out-the-vote” drives, alleging the First Amendment gives them the right to do so because they seek to distribute it while “expressing a political message.” Because they argue they are expressing a political message—the court should apply strict scrutiny when determining if the law violates their speech.

Judge Murphy, a Trump appointee, wrote that the majority believes that the act of distributing absentee ballot applications constitutes “conduct” rather than “speech,” and therefore does not fall under the protections of the First Amendment.

“We disagree on both fronts,” he wrote. “Tennessee’s ban prohibits an act: distributing a government form. This act qualifies as conduct, not speech. Admittedly, the First Amendment provides some protection to ‘expressive conduct.’ But strict scrutiny does not apply to Tennessee’s ban because it neutrally applies no matter the message that a person seeks to convey and because it burdens nobody’s ability to engage in actual speech.”

Judge Murphy argued that even though the distribution of such forms could carry an implicit message encouraging voter participation, the law’s objective was not to suppress the message but to regulate the conduct of distributing the forms.

The majority opinion stated that Tennessee’s law, in this regard, is designed to uphold the integrity of the election process.

Dissenting View

Circuit Judge Helene White saw the matter differently, offering a thorough critique of the majority’s argument.

Contrary to the majority’s view, Judge White posited that distributing absentee ballot applications could indeed be regarded as a form of “core political speech,” which would warrant First Amendment protections.

She also thoroughly critiques the law, which she said is a “law that threatens to imprison persons who distribute publicly available absentee-ballot applications.”

The statute classifies the offense as a Class E felony, which could carry a prison sentence of one to six years and a fine of up to $3,000.

“Thus, in Tennessee, a grandson risks years behind bars for encouraging his grandparents over age 60 to vote by mail and handing them publicly available forms,” she wrote.

An election worker processes absentee ballots in Atlanta, Ga., on Nov. 2, 2020. Megan Varner/Getty Images

The dissent also contested the majority’s application of legal frameworks for evaluating state election laws and expressed skepticism about the law merely being subject to rational-basis review.

It emphasized that even if a law does not focus on the ideas expressed by those it regulates, heightened scrutiny applies if the government’s interests are in “suppressing communication.”

Controversy Over Expressive Association

Moreover, the dissent argued that the law poses a “significant burden” on the plaintiffs’ right to expressive association, which is guaranteed under the 14th Amendment.

It contended that Tennessee’s law hinders the ability of groups to share crucial voting information with their members, thereby impeding their expressive activities and infringing upon freedoms that are “deeply embedded in the American political process.”

“This ability is essential to any associational enterprise, especially one engaged in expression,” she wrote.

While the ruling reaffirms the legality of Tennessee’s absentee ballot law, it also highlights ongoing debates around the boundaries of free speech and political conduct in election procedures.

The majority and dissenting opinions together reflect broader, national conversations about voting rights, free speech, and the role of the judiciary in arbitrating such matters.

Given the sharp division in the Court of Appeals, it remains to be seen whether this case will be taken up by higher courts for further scrutiny.

For now, however, Tennessee’s law stands, leaving advocacy groups and political organizations to decide how to navigate voter engagement efforts without running afoul of the state’s regulations.