Tennessee Conference of the National Association for the Advancement of Colored People v. Lee

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TENNESSEE CONFERENCE of the )

NATIONAL ASSOCIATION for the )

ADVANCEMENT of COLORED )

PEOPLE, et al., )

) NO. 3:20-cv-01039

Plaintiffs, )

) JUDGE CAMPBELL

v. ) MAGISTRATE JUDGE FRENSLEY

)

WILLIAM LEE, et al., )

)

Defendants. )

MEMORANDUM

Pending before the Court is a Motion to Dismiss filed by Defendants William Lee, in his

official capacity as Governor of the State of Tennessee; Tony C. Parker, in his official capacity as

Commissioner of the Department of Correction of the State of Tennessee; Mark Goins, in his

official capacity as Coordinator of Elections for the State of Tennessee; and Tre Hargett, in his

official capacity as Secretary of State of the State of Tennessee (collectively the “State

Defendants”). (Doc. No. 24). Plaintiffs filed a Response in Opposition (Doc. No. 29), and the State

Defendants filed a Reply (Doc. No. 34). The State Defendants filed a Notice of Supplemental

Authority (Doc. No. 73), and Plaintiffs filed a Response (Doc. No. 74). The State Defendants filed

a second Notice of Supplemental Authority. (Doc. No. 79). And Plaintiffs filed a Notice of

Supplemental Authority in Opposition to the Motion to Dismiss. (Doc. No. 82).

For the reasons discussed below, the State Defendants’ Motion will be GRANTED in part

and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs challenge the constitutionality of Tennessee’s process for restoring the right to

vote after a felony conviction. Plaintiffs Curtis Gray Jr., John Weare, Benjamin Tournier, and

Amanda Lee Martin (collectively the “Individual Plaintiffs”) are all Tennessee residents and

convicted felons. (Doc. No. 1 ¶¶ 40-44). Plaintiff Tennessee Conference of the National

Association for the Advancement of Colored People (“TN NAACP”) is a nonpartisan, multi-racial,

non-profit membership organization headquartered in Jackson, Tennessee. (Id. ¶ 29).

The primary pathway to voting rights restoration in Tennessee is a Certificate of

Restoration of Voting Rights (“COR”). (Id. ¶ 2). Individuals who meet certain eligibility criteria

“may request, and then shall be issued, a certificate of voting rights restoration upon a form

prescribed by the coordinator of elections[.]” Tenn. Code Ann. § 40-29-203(a); (Doc. No. 1 ¶ 23).

Tennessee’s rights restoration statute, Section 40-29-203(a), delegates the responsibility of issuing

Certificates of Restoration of Voting Rights to the State Defendants, who together comprise the

pardoning, incarcerating, and supervising authorities of the State. (Id. ¶ 51).

Defendant Governor Lee is the State’s pardoning authority. (Id. ¶ 46). He also appoints

the Commissioner of the Department of Correction. (Id.). Defendant Parker, the Commissioner of

the Department of Correction, supervises the wardens, parole officers, agents, and other officers

who are responsible for issuing Certificates of Restoration of Voting Rights to eligible persons.

(Id. ¶ 47). Defendant Goins, the Coordinator of Elections, is responsible for creating the Certificate

of Restoration of Voting Rights form and a written statement explaining the form and the

procedure for voting rights restoration. (Id. ¶ 48). Defendant Goins is also responsible for

coordinating implementation of the requirements of the National Voting Rights Act, 52 U.S.C. §

20501, et seq. (Id.). Defendant Hargett, the Secretary of State of Tennessee, appoints the

Coordinator Elections and may make regulations as necessary to carry out the election code. (Id.

¶ 49).

Under the State Defendants’ application of the Certificate of Restoration of Voting Rights

statutes there is no uniform procedure for potentially eligible Tennesseans to initiate a Certificate

of Restoration of Voting Rights request with an impartial decisionmaker; no procedure requiring

officials who are statutorily required to issue Certificates of Restoration of Voting Rights to

provide an affirmative or negative determination of a person’s eligibility; no procedure requiring

the statutorily designated officials to explain a decision not to issue a Certificate of Restoration of

Voting Rights; no state-level guidance or regulation to help county officials uniformly interpret

and apply the statutory eligibility requirements; and no appeals process for individuals who believe

they have been erroneously deprived of a Certificate of Restoration of Voting Rights. (Id. ¶¶ 53-

85). Rather, according to Plaintiffs, the State Defendants’ application of the Certificate of

Restoration of Voting Rights statutes has created an arbitrary system where similarly situated

Tennesseans – convicted of the same crime and who have served the same sentence – may be

granted or denied access to the right to vote based entirely on the willingness of local and county-

level officials to entertain Certificate of Restoration of Voting Rights requests, their varying

interpretations of state law, and their processes for keeping and maintaining records. (See id.).

The Individual Plaintiffs all attempted to request Certificates of Restoration of Voting

Rights using the State Defendants’ process, but none of them were successful because of the State

Defendants’ failure to administer a standardized, accurate, and navigable process for eligible

Tennessee citizens to request and be issued Certificates of Restoration of Voting Rights with

safeguards against erroneous deprivation and non-arbitrary treatment. (Id. ¶¶ 40-44, 65, 78).

Additionally, the State Defendants’ voter registration form does not accurately inform

applicants of the voter eligibility requirements in Tennessee or how specific felony convictions

impact eligibility to vote. (Id. ¶¶ 86-93). And the State Defendants have created a system that

rejects voter registration applications from voters with previous felony convictions, even if those

convictions were not disqualifying, and imposes additional documentation requirements on

applicants who must appeal erroneous denials. (Id. ¶¶ 94-100). At least one county in Tennessee

has a policy of charging citizens $25 to fill out each Certificate of Restoration of Voting Rights,

effectively enacting a poll tax, and Defendant Goins has not issued written instructions stating that

fees cannot be charged for the completion of a Certificate of Restoration of Voting Rights. (Id. ¶¶

7, 101-102).

Plaintiffs filed this action against the State Defendants on December 3, 2020, alleging

claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the

United Constitution (Counts 1-3), violations of the National Voting Rights Act (“NVRA”), 52

U.S.C. § 20501, et seq., (Counts 4-5), and claims under 42 U.S.C. § 1983 (Counts 6-7). Plaintiffs

seek declaratory and injunctive relief. The State Defendants move to dismiss the Complaint for

lack of subject matter jurisdiction and, alternatively, for failure to state a claim.

II. STANDARDS OF REVIEW

A. Rule 12(b)(1)

“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come

in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams

Co., 491 F.3d 320, 330 (6th Cir. 2007). When a Rule 12(b)(1) motion contests jurisdiction

factually, the court must weigh the evidence in order to determine whether it has the power to hear

the case, without presuming the challenged allegations in the complaint to be true. Id.; DLX, Inc.

v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). However, if a Rule 12(b)(1) motion challenges

subject matter jurisdiction based on the face of the complaint, as this one does, the plaintiff's

burden is “not onerous.” Musson Theatrical Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th

Cir. 1996). A court evaluating this sort of facial attack to the assertion of subject matter jurisdiction

must consider the allegations of fact in the complaint to be true and evaluate jurisdiction

accordingly. Gentek, 491 F.3d at 330; Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir. 1999).

B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for failure to

state a claim upon which relief can be granted. For purposes of a motion to dismiss, a court must

take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted

as true, to state a claim for relief that is plausible on its face. Id. at 678. A claim has facial

plausibility when the plaintiff pleads facts that allow the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged. Id. In reviewing a motion to dismiss, the

Court construes the complaint in the light most favorable to the plaintiff, accepts its allegations as

true, and draws all reasonable inferences in favor of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007). Thus, dismissal is appropriate only if “it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Guzman v. U.S. Dep't of Children’s Servs., 679 F.3d 425, 429 (6th Cir. 2012).

III. ANALYSIS

In their motion to dismiss, the State Defendants first argue that, under Federal Rule of Civil

Procedure 12(b)(1), this Court lacks subject jurisdiction because Plaintiffs lack standing and their

claims are barred by the Eleventh Amendment. The State Defendants then argue that Plaintiffs’

claims should be dismissed under Rule 12(b)(6) for failure to state a claim.

A. Article III Standing

Article III of the Constitution gives the federal courts jurisdiction only over “cases and

controversies,” of which the component of standing is an “essential and unchanging part.” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have Article III standing, a plaintiff must

allege “(1) an injury in fact (2) that's traceable to the defendant's conduct and (3) that the courts

can redress.” Gerber v. Herskovitz, 14 F.4th 500, 505 (6th Cir. 2021) (citing Lujan, 504 U.S. at

559-61). Standing is assessed under the facts existing when the complaint is filed. See Am. C.L.

Union of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir. 2004). “The standing inquiry is not a merits

inquiry.” Gerber, 14 F.4th at 505 (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89

(1998)). Through the pending motion to dismiss, the State Defendants contest the first element of

standing – injury in fact – as to all Plaintiffs’ claims and traceability with respect to Counts 1-3.

1. Individual Plaintiffs (Counts 1-3)

An injury capable of supporting Article III standing requires the invasion of a legally

protected interest that is concrete and particularized and actual or imminent, not conjectural or

hypothetical. See CHKRS, LLC v. City of Dublin, 984 F.3d 483, 488 (6th Cir. 2021) (citing Spokeo,

Inc. v. Robins, 578 U.S. 330, 339 (2016)). To allege the invasion of a legally protected interest,

“requires only that the plaintiff have a ‘right to relief if the court accepts’ the plaintiff's legal

position about the meaning of a constitutional provision or a statute.” Gerber, 14 F.4th at 507

(quoting CHKRS, 984 F.3d at 488).

Here, the Complaint alleges deprivation of a statutory right without due process and in a

manner that results in arbitrary and unequal treatment. (Doc. No. 1 ¶¶ 112, 125, 130). These

pleaded injuries to constitutional rights are sufficient for the Individual Plaintiffs’ due process and

equal protection claims in Counts 1-3. See Wright v. O'Day, 706 F.3d 769, 771–72 (6th Cir. 2013).

“As to traceability, a defendant's actions must have a ‘causal connection’ to the plaintiff's injury.”

Gerber, 14 F.4th at 505 (citing Lujan, 504 U.S. at 560). The Complaint alleges that the State

Defendants caused Plaintiffs’ due process and equal protection injuries by setting up an arbitrary

process for requesting CORs. (Doc. No. 1 ¶ 57). These allegations satisfy the “relatively modest”

burden of demonstrating Article III causation at this stage of litigation. “As to redressability, it

must be ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.’” Gerber, 14 F.4th at 505 (quoting Lujan, 504 U.S. at 561). If the State Defendants are

required to implement a uniform, accessible, transparent, and appealable process for issuing CORs,

then the harms that allegedly flow from the current system will be prevented, and thus Plaintiffs’

claimed injuries redressed. The State Defendants’ merit-based arguments concerning the

Individual Plaintiffs’ injuries in fact are not persuasive. See CHKRS, 984 F.3d at 488-89 (reversing

district court that granted motion to dismiss for lack of standing for failure to allege a legally

protectable interest because the trial court relied on merit-based precedent rather than cases

articulating the requirements for Article III standing).

2. TN NAACP (Counts 1-7)

Perceptible impairment to “the organization’s activities” or a “drain on the organization’s

resources” qualify as concrete and demonstrable injuries for standing purposes. See Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 (1982); Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp.,

725 F.3d 571, 576 (6th Cir. 2013). In the present case, TN NAACP claims organizational injuries

to sue on its own behalf.

One of TN NAACP’s alleged core activities is voter registration, which requires it to

distribute, use, and explain the state’s voter registration form. (See Doc. No. 1 ¶ 38). The Complaint

alleges that the State Defendants’ failed administration of Tennessee’s COR program has forced

TN NAACP to “divert[] significant resources from its other activities related to its core mission in

order to assist its constituents and other community members with the voting rights restoration

process.” (Id. ¶ 37). TN NAACP allegedly must “expend additional money and time helping

individuals navigate a process that is designed to fail,” “hold[] public education workshops trying

to explain the COR process,” undertake efforts to “tailor these [educational] events to what they

understand the ‘process’ to be in each county,” and “mak[e] phone calls and taxi[] [their] members

between county offices,” to counteract the systemic barriers that currently exist and to give its

members and constituents an opportunity to seek CORs. (See id.). TN NAACP’s injuries are

allegedly exacerbated in Rutherford County by the Clerk requiring COR applicants to pay a fee.

(Id.). At the motion to dismiss stage, these allegations are sufficient to establish injury in fact for

Counts 1, 2, 3, and 7. The allegations that TN NAACP is injured when a person it helps register to

vote is rejected despite being eligible because such denials cause it to divert significant time and

resources to correct the error are sufficient to establish organizational injuries for Counts 4, 5, and

6. (See id. ¶ 38).

TN NAACP’s alleged injuries underlying Counts 4-7 are traceable to Defendants Goins

and Hargett; the Complaint alleges that Defendant Goins is responsible for coordinating

implementation of the NVRA, issuing instructions for completion of CORs, and, under supervision

of Defendant Hargett, implementing the unlawful policy of rejecting all voter registration

applications by applicants with felony convictions. (See Doc. No. 1 ¶¶ 17, 151, 49, 95). As noted

above with respect to the Individual Plaintiffs, if the State Defendants are required to implement a

uniform, accessible, transparent, and appealable process for issuing CORs, as Plaintiffs request,

then the harms that allegedly flow from the current system will be prevented, and Plaintiffs’

claimed injuries redressed.

The State Defendants’ challenges to TN NAACP’s standing are without merit. They

contend that TN NAACP cannot establish standing based on direct harm because the alleged

resource expenditures are (1) self-inflicted and (2) fall within its mission. (See Doc. No. 25-1 at 7-

8 (citing Shelby Advocs. for Valid Elections v. Hargett, 947 F.3d 977, 982 (6th Cir. 2020)). While

the Sixth Circuit “has not addressed when an injury is self-inflicted,” see Buchholz v. Meyer Njus

Tanick, PA, 946 F.3d 855, 866 (6th Cir. 2020), it is well-established that a plaintiff cannot create

an injury “by choosing to make expenditures based on hypothetical future harm that is not certainly

impending.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 400 (2013). However, Clapper is no bar

to standing in the present matter as TN NAACP does not claim its resource expenditures were

incurred based on a fear of future harm.

The State Defendants’ second argument – that TN NAACP cannot establish standing based

on direct harm because the alleged resource expenditures fall within its mission – has been

expressly rejected by the Sixth Circuit:

The Attorney General's sole rejoinder is that the Guild cannot point

to its recent price-gouging expenditures to establish direct

organizational standing because they fall within its mission to

advocate for the interests of online merchants. To support this

argument, he cites Shelby Advocates for Valid Elections v. Hargett,

947 F.3d 977 (6th Cir.) (per curiam), cert. denied, ––– U.S. ––––,

141 S. Ct. 257, 208 L.Ed.2d 28 (2020), for the sweeping proposition

that if an organizational plaintiff's new expenditures “are actually

part of the organization's mission, then there is no diversion of

resources and thus no injury-in-fact.” Appellant's Br. at 14. But

Shelby Advocates stands for no such thing, because that would

contradict the various earlier—and thus controlling—cases to the

contrary from this circuit, not to mention Supreme Court precedent,

all of which affirm that within-mission organizational expenditures

are enough to establish direct organizational standing. See, e.g.,

Miami Valley Fair Hous. Ctr., 725 F.3d at 576 (concluding that an

organization with a mission to “promote fair housing and eliminate

housing discrimination” had direct standing to sue over an allegedly

discriminatory housing advertisement); Hous. Opportunities Made

Equal, Inc., 943 F.2d at 646; see also Havens Realty Corp. v.

Coleman, 455 U.S. 363, 368, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214

(1982).

Online Merchants Guild v. Cameron, 995 F.3d 540, 548–49 (6th Cir. 2021).

B. Prudential Standing

The State Defendants claim that TN NAACP lacks prudential standing to assert the rights

of third parties. TN NAACP argues that it “seeks to vindicate the rights and interests of its members

and constituents, with whom it has a strong identity of interests.” (Doc. No. 29 at 17 (citing Doc.

No. 1, ¶¶ 34-39)). “There is no prudential standing bar when member-based organizations advocate

for the rights of their members.” Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 557

(6th Cir. 2021). Accordingly, the State Defendants’ motion will not be granted on this ground.

C. Eleventh Amendment Sovereign Immunity

The State Defendants contend that Counts 1, 2, 3, 6, and 7 are barred by the Eleventh

Amendment. “Eleventh Amendment ‘[s]overeign immunity protects states, as well as state

officials sued in their official capacity for money damages, from suit in federal court.’” Courser v.

Allard, 969 F.3d 604, 618 (6th Cir. 2020) (quoting Boler v. Earley, 865 F.3d 391, 409–10 (6th Cir.

2017)). Plaintiffs argue that these claims are not barred by the Eleventh Amendment and may

proceed under the Ex Parte Young exception. (Doc. No. 29 at 19-20).

The Ex parte Young exception allows plaintiffs to bring “a suit challenging the

constitutionality of a state official's action.” See Kaplan v. Univ. of Louisville, 10 F.4th 569, 577

(6th Cir. 2021). “To determine if Ex parte Young applies, a court ‘need only conduct a

‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.’” Universal Life Church Monastery

Storehouse v. Nabors, 508 F. Supp. 3d 221, 236–37 (M.D. Tenn. 2020) (quoting Boler, 865 F.3d

at 412) (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002)).

Whether the state official's challenged action is actually inconsistent with federal law is not part

of the inquiry into whether suit lies under Ex parte Young. See Verizon, 535 U.S. at 646 (rejecting

suggestion that Ex parte Young did not apply because the order at issue was not inconsistent with

federal law and stating that “the inquiry into whether suit lies under Ex parte Young does not

include an analysis of the merits of the claim.”). The only relevant inquiry under Ex parte Young

is whether the complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective. See id. at 636.

Here, the State Defendants concede that the Complaint seeks prospective relief and alleges

violations of the Due Process and Equal Protections Clauses of the Fourteenth Amendment

(Counts 1-3), infringements on the fundamental right to vote (Count 6), and violation of the

Twenty-Fourth Amendment (Count 7). This satisfies the inquiry. See Verizon, 535 U.S. at 645.

Accordingly, the Court finds that the Ex parte Young exception applies to Counts 1, 2, 3, 6, and 7,

and that they are not barred by the Eleventh Amendment.

D. Merits

1. Procedural Due Process Claims (Counts 1 and 2)

“In general, procedural due process principles protect persons from deficient procedures

that lead to the deprivation of cognizable liberty interests.” Schulkers v. Kammer, 955 F.3d 520,

545 (6th Cir. 2020) (citation and internal quotations omitted). “To establish a procedural due

process violation, Plaintiffs must show (1) that they have been deprived of a cognizable liberty

interest, and (2) that such deprivation occurred without adequate procedural protections.” Id. The

State Defendants argue the Complaint fails to state a claim for procedural due process because

procedural due process does not apply to the alleged liberty interest. Plaintiffs argue that the

Complaint adequately alleges the deprivation of a state-created liberty interest to which due

process applies.

“A liberty interest may arise from the Constitution itself … or it may arise from an

expectation or interest created by state [or federal] laws or policies.” United States v. Silvestre-

Gregorio, 983 F.3d 848, 852 (6th Cir. 2020) (quoting Wilkinson v. Austin, 545 U.S. 209, 221

(2005)). “When… a State creates a liberty interest, the Due Process Clause requires fair procedures

for its vindication—and federal courts will review the application of those constitutionally required

procedures.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011). In the present case, the Complaint

alleges that the Tennessee legislature created a liberty interest in a COR for individuals who meet

certain eligibility criteria. (Doc. No. 1 ¶ 115). The Complaint further alleges that “[t]he interest in

a COR is significant because it is the key to exercising the fundamental right to vote.” (Id. ¶ 116).

The State Defendants argue Plaintiffs’ procedural due process claims should be dismissed

because the Sixth Circuit “has held that the ‘right to vote does not …implicate procedural due

process.’” (Doc. No. 25-1 at 17 (quoting League of Women Voters v. Brunner, 548 F.3d 463, 479

(6th Cir. 2008)). However, “Brunner did not categorically bar procedural due process claims for

voting rights cases []. Instead, the Court found that the procedural due process claim as alleged in

the plaintiffs’ complaint failed.” League of Women Voters of Ohio v. LaRose, 489 F. Supp. 3d 719,

737 n.25 (S.D. Ohio 2020). Next, the State Defendants contend Plaintiffs’ procedural due process

claims should be dismissed under Sandin v. Conner, 515 U.S. 472, 484 (1995) because the alleged

state-created liberty interest does not relate to freedom from restraint. In response, Plaintiffs argue

that Sandin does not determine whether a state law establishes a liberty interest triggering due

process requirements outside of the context of prison regulations. The State Defendants filed a

reply but did not respond to Plaintiffs’ arguments. (See Doc. No. 34). Plaintiffs’ interpretation of

Sandin is consistent with Sixth Circuit authority:

In Sandin, the only issue was the prisoners' right to procedural due

process protection before placement in segregated confinement for

30 days, imposed as discipline for disruptive behavior. The Sandin

Court observed that it had previously employed a methodology for

identifying state-created liberty interests that emphasized “the

language of a particular [prison] regulation” instead of “the nature

of the deprivation.” 515 U.S. at 481, 115 S.Ct. 2293. The Court

abandoned this methodology, significantly limiting the authority of

courts to find liberty interests stemming from positive state law in

the prison context. Instead, it stated that the relevant inquiry must

focus on the nature of the deprivation imposed on a prisoner, holding

that if the nature of the deprivation does not impose an “atypical and

significant hardship ... in relation to the ordinary incidents of prison

life,” prisoners will not have a liberty interest in avoiding the

deprivation.

Bazzetta v. McGinnis, 430 F.3d 795, 802 (6th Cir. 2005) (alterations in original); see also

Wilkinson v. Austin, 545 U.S. 209, 222 (2005) (“In Sandin, we criticized [the methodology of

parsing the language of particular prison regulations] as creating a disincentive for States to

promulgate procedures for prison management, and as involving the federal courts in the day-to-

day management of prisons.”); Tony L. By & Through Simpson v. Childers, 71 F.3d 1182, 1185

(6th Cir. 1995) (citing Sandin as “reasoning that, in the prison context, the analysis should focus

on the nature of the deprivation rather than the language of the regulation involved.”).

The Court finds that the Complaint adequately alleges the deprivation of a state-created

liberty interest to which due process applies. As such, the Court need not reach whether Plaintiffs

have shown that a constitutionally protected liberty interest is also at stake, and the State

Defendants’ motion will be denied as to Plaintiffs’ procedural due process claims.

2. Equal Protection Claim (Count 3)

“To establish an equal-protection violation, a plaintiff must adequately plead that the

government treated the plaintiff disparately as compared to similarly situated persons and that such

disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational

basis.” Resurrection Sch. v. Hertel, 11 F.4th 437 (6th Cir. 2021) (citation and internal quotations

omitted). Here, the Complaint alleges that “Defendants’ application of the COR statutes has

created a system where similarly situated Tennesseans – convicted of the same crime and who

have served the same sentence and met their relevant LFOs – may be granted or denied access to

the right to vote based solely on the county of their felony conviction.” (Doc. No. 1 ¶ 130). It

further alleges that “[w]hether or not an eligible individual is able to request and be issued a COR

and thereby regain their right to vote depends entirely on the willingness of local and county-level

officials to entertain COR requests, their varying interpretations of state law (especially regarding

LFO requirements), and their processes for keeping and maintaining records.” (Id. ¶ 131). It also

alleges that “the COR implicates an individual’s right to vote” and that “Defendants cannot present

even a rational basis for maintaining such a discriminatory system.” (Id. ¶ 133).

The State Defendants first argue that the Complaint fails to state an equal protection claim

against them because it alleges that local and county-level officials are treating individuals

differently rather than the State. (See Doc. No. 25-1 at 21). Plaintiffs argue that the Complaint

alleges that it is the State Defendants who deprive them of equal protection because it alleges that

it is the State Defendants who have failed to provide statewide uniform standards and procedures

to ensure the non-arbitrary treatment of COR applicants. (Doc. No. 29 at 30). The State Defendants

do not argue otherwise in their reply. (See Doc. No. 34). Second, the State Defendants argue that

the Complaint fails to state an equal protection claim because the right that is allegedly burdened

by the State’s disparate treatment – the right to vote – is not fundamental for individuals convicted

of felonies. (Doc. No. 25-1 at 22 (citing Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010)).

The Court need not reach this argument because, as the State Defendants concede, the Complaint

alleges that the disparate treatment has no rational basis. (Doc. No. 1 ¶¶ 130-134). Accordingly,

the State Defendants’ motion will be denied as to Count 3.

3. National Voting Rights Act Claims (Counts 4 and 5)

The National Voting Rights Act regulates voter registration. See 52 U.S.C. § 20501, et seq.

The NVRA contains a civil enforcement provision that allows a person aggrieved by a violation

to bring a civil action if they provide written notice of the violation to the chief election official of

the State involved and the violation is not corrected within 90 days after receipt of the notice. See

52 U.S.C. § 20510(b).1 The purpose of the NVRA's notice requirement is to “provide states in

violation of the Act an opportunity to attempt compliance before facing litigation.” Ass'n of Cmty.

Organizations for Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997). The State Defendants

move to dismiss TN NAACP’s National Voting Rights Act claims (Counts 4 and 5) on the basis

that it failed to provide statutory notice. (Doc. No. 25-1 at 22-26).2 District courts have found

notice sufficient “when it (1) sets forth the reasons that a defendant purportedly failed to comply

with the NVRA, and (2) clearly communicates that a person is asserting a violation of the NVRA

1 This provision also creates a 20-day pre-suit notice period if the defendant's alleged violation occurs

within 120 days of a federal election. 52 U.S.C. § 20510(b)(1). And it waives the notice period if the alleged

violation occurs within 30 days of an election. Id. These provisions are inapplicable in the present case.

2 While the State Defendants argue that TN NAACP does not have statutory standing to assert claims

under the NVRA because it is an organization with unidentified members, they concede that this argument

could “be fairly characterized as a lack of Article III standing based on the NAACP’s failure to allege any

injury to an identified member.” (See Doc. No. 25-1 at 24 n.11; Doc. No. 34 at 7-9 n.3). The Court agrees

that it has already determined that TN NAACP has Article III standing to pursue these claims.

and intends to commence litigation if the violation is not timely addressed.” Pub. Int. Legal Found.

v. Boockvar, 370 F. Supp. 3d 449, 457 (M.D. Pa. 2019) (collecting cases).

With respect to Count 4, the State Defendants do not dispute that TN NAACP sent them a

letter setting forth reasons that they purportedly failed to comply with the NVRA, and clearly

communicating that it was asserting a violation of the NVRA and intended to commence litigation

if the violation is not timely addressed. (See Doc. No. 25-1 at 25). Instead, they assert that TN

NAACP failed to provide the requisite statutory notice for the violation alleged in Count 4 because

the form that was the subject of the notice letter is no longer in use. This contention fails to explain

how the letter failed to provide the State Defendants with notice of the alleged violations in Count

4. Moreover, the State Defendants do not cite to any supporting authority for their position or

defend it in their reply. The motion to dismiss will be denied as to Count 4.

As for Count 5, the State Defendants argue that TN NAACP’s letter did not provide notice

because it “makes no mention of the State’s alleged practice of rejecting all registration forms on

which the applicant affirmed that they have a felony conviction.” (See Doc. No. 25-1 at 26). TN

NAACP argues that its letter gave adequate notice of the violations at issue in Count 5 because

they stem directly from the violations at issue in Count 4, which were described in the letter. (Doc.

No. 29 at 35). The Court finds that TN NAACP’s letter does not satisfy the NVRA's pre-suit notice

requirement of giving sufficiently detailed notice of the NVRA violation. Accordingly, Count 5

will be dismissed without prejudice.

4. Section 1983 Claims (Counts 6 and 7)

In Count 6, TN NAACP claims that Tennessee’s practice of rejecting all voter registration

forms on which the applicant affirmed that they have a felony conviction burdens eligible voters’

fundamental right to vote in violation of the First and Fourteenth Amendments. The State

Defendants assert that the Court should not accept the foregoing factual allegation as true because

it “cannot be squared with the State’s existing voter-registration procedures and forms.” (Doc. No.

25-1 at 27). Thus, the State Defendants ask the Court to construe the factual allegations in their

favor rather than TN NAACP’s. Such would be inappropriate at the motion to dismiss stage.

Accordingly, the State Defendants’ motion will not be granted on this ground.

In Count 7, TN NAACP alleges that Defendant Goins has failed to meet his statutory

mandate to issue instructions for the COR by failing to specify that fees cannot be charged for

completion of the COR. (Doc. No. 1 ¶ 151 (citing Tenn. Code Ann. § 40-29-205)).3 The State

Defendants argue this claim should be dismissed because Section 40-29-205 does not require

Defendant Goins to issue instructions to the persons completing the COR. (Doc. No. 25-1 at 30

(“Thus, contrary to Plaintiff’s assertions, Tenn. Code Ann. § 40-29-205 imposes no statutory duty

on Coordinator Goins to issue instructions to the person completing the form that the statute does

not authorize them to charge a fee.”)) (emphasis in original). This argument does not support

dismissal as it is premised on a mischaracterization of the allegations in the Complaint.

Accordingly, the State Defendants’ motion will not be granted on this ground.

3 Section 40-29-205 provides:

The coordinator of elections shall prepare a certificate of voting rights

restoration form and the written statement explaining the form and the

procedure by which a person can apply for a voter registration card and

become eligible to vote as required by this part. The coordinator shall be

responsible for printing and distributing a sufficient number of the forms

to the department of correction, the board of parole and any other authority

that may discharge a person to whom this part applies.

IV. CONCLUSION

For the foregoing reasons, the State Defendants’ Motion to Dismiss will be GRANTED in

part and DENIED in part. The motion will be granted as to Count 5 and will be denied as to all

other Counts.

An appropriate Order will enter. = CM), J

WILLIAM L. CAMPBELL, JR.

UNITED STATES DISTRICT JUDGE

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