Lupo v. Tennessee Secretary of State Tre Hargett

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NICHOLAS LUPO, MATTHEW )

STONEMAN, and DAVID PRICE, )

)

Plaintiffs, )

)

v. ) No. 3:24-cv-01088

)

TRE HARGETT in his official capacity )

as Tennessee Secretary of State, and )

MARK GOINS in his official capacity as )

Coordinator of Elections, )

)

Defendants. )

MEMORANDUM OPINION

This 42 U.S.C. § 1983 case is one of several related election cases filed in district courts

across the country. Those cases allege that state election officials unconstitutionally excluded

electors from the November 5, 2024 general election ballot merely because their pledged

presidential candidate, Dr. Shiva Ayyadurai, is not a “natural-born citizen” and is ineligible to

serve as President.1 In this case, Plaintiffs Nicholas Lupo, Matthew Stoneman, and David Price,

proceeding pro se, have sued Tennessee Secretary of State Tre Hargett and Coordinator of

Elections Mark Goins (collectively, “Defendants”) in their official capacities for declaratory and

injunctive relief. Before the Court is Defendants’ Motion to Dismiss (Doc. No. 13), which is fully

briefed and ripe for review (see Doc. Nos. 14, 18, 20, 24). For the following reasons, Defendants’

Motion will be granted.

1 See, e.g., Sias v. Way, No. 24-8747 (MAS) (RLS), 2024 WL 4505108, at *6 (D.N.J. Oct. 16,

2024); Lauters v. Evnen, No. 4:24-CV-3175, 2024 WL 4517911, at *3 (D. Neb. Oct. 17, 2024);

Rohr v. Utah, No. 2:24-cv-00659-AMA-DBP, 2024 WL 4528163 (D. Utah Oct. 18, 2024).

I. FACTUAL ALLEGATIONS AND BACKGROUND2

Plaintiffs are Tennessee residents who, along with eight other individuals (collectively, the

“Elector Candidates”), submitted “Nomination Petitions” to the Tennessee Secretary of State “to

be Electors of the President and Vice President of the United States for pledged independent

candidate for President Dr. Shiva Ayyadurai.” (Doc. No. 8 ¶¶ 1, 4–6). The Complaint alleges that

the Nomination Papers met all the necessary requirements under Tennessee law for the Elector

Candidates “to be officially placed on the ballot to be Presidential Elector Candidates in the State

of Tennessee.” (Id. ¶¶ 2, 21–23). As part of the nomination process, each of the Elector Candidates

pledged that: “If selected for the position of elector as a nominee of an unaffiliated presidential

candidate, I agree to serve and to mark my ballot for [Dr. Ayyadurai] and for that candidate’s vice-

presidential running mate,” Crystal Ellis. (Id. ¶ 8).

On August 14, 2024, the Office of the Tennessee Secretary of State issued a “Receipt of

Filing” letter confirming that it “received the nominating petition for Shiva Ayyadurai as a

candidate for President of the United States in the general election to be held on November 5,

2024.” (Id. ¶ 23). The letter further provided that Dr. Ayyadurai “will be notified once it has been

determined that all requirements have been met for placing the candidate’s name on the ballot,”

and “[i]f qualified, [Dr. Ayyadurai’s] name will appear on the ballot[.]” (Id.). Plaintiff Lupo

signed this letter. (Id.).

At some point thereafter, attorneys for the Tennessee Secretary of State determined that

Dr. Ayyadurai was ineligible to serve as President because he was not “naturally born” in the

2 The Court draws these facts from the September 20, 2024 Verified Complaint (Doc. No. 8) and

assumes the truth of those facts for purposes of ruling on the instant motion. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007).

United States.3 (Id. ¶¶ 25, 29). On September 4, 2024, Defendant Goins sent a letter to Dr.

Ayyadurai informing him that he would not be placed on the Tennessee ballot. (Id. ¶¶ 14, 27). A

different election official, Lena Russomanno, simultaneously informed Lupo and another Elector

Candidate that Dr. Ayyadurai would not be on the ballot. (Id. ¶¶ 25–26). On September 5, 2024,

Lupo responded to Russomanno that the Elector Candidates themselves “are running for the Office

of Elector in the State of Tennessee,” and that the Tennessee Secretary of State “had no right to []

remove them from the ballot based on the ‘qualifications’ of their Pledged Candidate for

President.” (Id. ¶¶ 25, 28 (emphasis added)). Lupo called this decision an “ignorant and moronic

ruling” and “demanded he and the [other] Elector Candidates be put back on the ballot

immediately.” (Id. ¶ 28). Later that day, Goins emailed Lupo that: “The decision was made after

attorneys within [the Tennessee Secretary of State’s] office looked at the issue. I understand you

intend to sue but the decision has been made.” (Id. ¶ 29). On September 6, 2024, Lupo responded

that: “Your attorneys are either DUMB or intentionally violating the Law,” and “[y]our ignorance

intentional or otherwise must be punished.” (Id. ¶ 30).

Plaintiffs then filed a three-count Complaint under § 1983 for declaratory and injunctive

relief against Goins and Hargett in their official capacities. The operative Complaint4 alleges that

Defendants violated the Elector Candidates’ First and Fourteenth Amendment rights by refusing

to place their names on the Tennessee general election ballot. (Id. ¶¶ 1, 9, 55). In terms of their

3 According to at least one signed Complaint in another case, Dr. Ayyadurai was born in Mumbai,

India, and became a naturalized American citizen in November 1983. See Ayyadurai v. Garland,

No. 23-2079 (LLA) (D.D.C. 2023), Doc. No. 1 ¶¶ 5, 8; see also Doc. No. 8 ¶ 27 (noting that Dr.

Ayyadurai has publicly stated he was born outside of the United States).

4 Plaintiffs indicated in their sur-reply that they would be filing a motion for leave to file an

amended complaint. (Doc. No. 24 at 5–6). However, Plaintiffs still have not done so, and it would

not be prudent to delay this case further while Plaintiffs’ “Motion for Emergency Hearing” related

to the November 5, 2024 election remains pending.

request for relief, Plaintiffs have asked the Court to issue: (1) a declaratory judgment stating that

Defendants lacked “subject matter jurisdiction” to reject Dr. Ayyadurai and the Elector Candidates

from the November 5, 2024 general election ballot; and (2) an injunction against Defendants to

both “nullify their decision to remove the Elector Candidates from the ballot,” and to “prevent

Defendants from printing ballots for the November 5, 2024 general election” that do not include

the Elector Candidates. (Id. ¶¶ 66, 78, 83). Defendants responded with the instant motion to

dismiss under Federal Rules of Civil Procedure 12(b)(1) and (b)(6). (See Doc. Nos. 13–14).

II. LEGAL STANDARDS

A. Motion to Dismiss Under Rule 12(b)(1)

A defendant may move under Rule 12(b)(1) to dismiss a case for lack of subject matter

jurisdiction. See Fed. R. Civ. P. 12(b)(1). To survive a Rule 12(b)(1) motion, “the plaintiff has

the burden of proving jurisdiction[.]” Wayside Church v. Van Buren Cnty., 847 F.3d 812, 817

(6th Cir. 2017) (quoting Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)). “A

Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the

pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack).”

Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d

592, 598 (6th Cir. 1994)). In considering a facial attack, the Court must take all the allegations in

the Complaint as true and determine “whether the plaintiff has alleged a basis for subject matter

jurisdiction.” Id. (emphasis added). But when the defendant makes a factual attack, the Court may

consider and weigh evidence, including evidence outside of the pleadings, to determine whether

the plaintiff has “carrie[d] the burden of establishing subject matter jurisdiction by a preponderance

of the evidence.” Ready for the World Inc. v. Riley, No. 19-10062, 2019 WL 4261137, at *2 (E.D.

Mich. Sept. 9, 2019) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189

(1936)).

B. Motion to Dismiss Under Rule 12(b)(6)

A defendant may also move under Rule 12(b)(6) to dismiss a case for “failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)

motion, the Complaint must include a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Ryan v. Blackwell, 979 F.3d 519, 524 (6th Cir. 2020) (quoting Fed.

R. Civ. P. 8(a)(2)). When determining whether the Complaint meets this standard, the Court must

accept the Complaint’s factual allegations as true, draw all reasonable inferences in the plaintiff’s

favor, and “take all of those facts and inferences and determine whether they plausibly give rise to

an entitlement to relief.” Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678–79 (2009). Moreover, the Court must determine only whether “the

claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately

prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer

v. Rhodes, 416 U.S. 232 (1974)). “While the complaint does not need detailed factual allegations,

a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels

and conclusions” or “a formulaic recitation of a cause of action’s elements[.]” Blackwell, 979

F.3d at 524 (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)).

III. ANALYSIS

It is difficult to discern the exact nature of Plaintiffs’ allegations, but, as in other related

cases, their “claims seem to hinge on the idea that they’re the actual candidates, they’re the ones

who’ve been kept off the ballot, and their actual pledged candidate really doesn’t have anything to

do with it.” See Lauters, 2024 WL 4517911, at *3; see also (Doc. No. 18 at 6–8). Additionally,

Plaintiffs appear to argue that they are entitled to run for the “office of Electors for president and

vice president,” and that Defendants acted without jurisdiction and “went after the wrong person”

when they excluded Plaintiffs’ names from the Tennessee general election ballot. (Doc. No. 18 at

20).

Defendants respond that this Court should dismiss Plaintiffs’ claims because (1) this case

is moot, (2) Plaintiffs’ claims are barred by sovereign immunity, (3) Plaintiffs fail to allege a First

or Fourteenth Amendment violation, and (4) issuing an injunction on the eve of an election would

violate the Purcell principle. Because mootness and sovereign immunity relate to subject matter

jurisdiction, the Court is required to address those issues first before moving to the others. See

Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (“[W]e are bound

to consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge becomes moot if this court

lacks subject matter jurisdiction.”); see also KNC Invs., LLC v. Lane’s End Stallions, Inc., 579 F.

App’x 381, 383 (6th Cir. 2014) (a motion to dismiss for mootness is properly characterized as a

motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction); Geomatrix, LLC v.

NSF Int’l, 82 F.4th 466, 478 (6th Cir. 2023) (noting that “sovereign immunity is a jurisdictional

defect that should be addressed under Rule 12(b)(1)”).

A. Mootness

Defendants first argue that this case should be dismissed under Rule 12(b)(1) as moot

because the November 5, 2024 ballot has already been finalized and mailed to military personnel,

and therefore “the time for any ballot changes has come and gone.”5 (Doc. No. 14 at 4). Plaintiffs

respond that the Supreme Court has held multiple times that “ballot access constitutional cases,”

like this one, “are not moot” even if the election itself is over. (Doc. No. 18 at 11–12). The Court

agrees with Plaintiffs.

5 An argument “that Plaintiff’s requested declaratory and injunctive relief are moot constitute[s] a

factual attack on subject matter jurisdiction.” Duren v. Byrd, 2021 WL 3848105, at *5 (M.D.

Tenn. Aug. 26, 2021) (citations omitted).

Under Article III of the Constitution, federal courts only have subject matter jurisdiction

over “actual, ongoing controversies.” Mwasaru v. Napolitano, 619 F.3d 545, 549 (6th Cir. 2010)

(citation omitted). “[W]hen the issues presented are no longer ‘live’ or the parties lack a

cognizable interest in the outcome,” then the case becomes moot and the Court lacks jurisdiction.

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation and internal quotation marks omitted).

“The heavy burden of demonstrating mootness rests on the party claiming mootness.” Cleveland

Branch, NAACP v. Parma, 263 F.3d 513, 531 (6th Cir. 2001).

As relevant here, “[a]n exception to the mootness doctrine exists for wrongs that are

‘capable of repetition, yet evading review.’” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579,

584 (6th Cir. 2006) (quoting Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)). This

exception “applies when (1) the challenged action is too short in duration to be fully litigated prior

to its cessation or expiration and (2) there is a reasonable expectation or a demonstrated probability

that the controversy will recur.” Id. The first prong is easily satisfied here because disputes about

election laws “almost always take more time to resolve than the election cycle permits.” See id.

(citations omitted). The Court finds that the second prong also is satisfied because the issues in

this case are capable of reoccurring. For example, there is a reasonable expectation that these or

other similarly situated elector candidates could run for office in future Tennessee general

elections. See id. It is also reasonably likely that some elector candidates in the future will pledge

their electoral college votes to a presidential candidate who is deemed ineligible to serve as

President. Given that the standard for the second prong of this exception is “somewhat relaxed . .

. in election cases,” the Court finds that this controversy is “capable of repetition, yet evading

review” and not moot. See id. (citation omitted); see also Norman v. Reed, 502 U.S. 279, 704–05

(1992)).

B. Sovereign Immunity

Defendants next argue that the Court does not have subject matter jurisdiction over

Plaintiffs’ claims because sovereign immunity shields them from this lawsuit.6 (Doc. No. 14 at 6–

7). Sovereign immunity under the Eleventh Amendment generally deprives federal courts of

subject matter jurisdiction when a citizen sues a State or state official in his official capacity.

Russell v. Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015) (noting that a “suit against a

state official in his or her official capacity . . . is a suit against the State itself”). “There are three

exceptions to a state’s sovereign immunity: (1) when the state has consented to suit; (2) when the

exception set forth in Ex parte Young . . . applies; and (3) when Congress has clearly and expressly

abrogated the state’s immunity.” Puckett v. Lexington-Fayette Urban Cnty. Gov’t, 833 F.3d 590,

598 (6th Cir. 2016) (citation omitted). Because Defendants have not consented to suit, and

Congress has not clearly and expressly abrogated Tennessee’s immunity, only the second

exception is at issue here.

The doctrine set forth in Ex parte Young, 209 U.S. 123 (1908) “allows plaintiffs to bring

claims for prospective relief against state officials sued in their official capacity to prevent future

federal constitutional or statutory violations.” Boler v. Earley, 865 F.3d 391, 412 (6th Cir. 2017)

(emphasis added). This doctrine does not extend to retroactive relief. Id. To determine if Ex parte

Young applies, the 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.”

Id. (citations, internal quotation marks, and alterations omitted).

6 An assertion of sovereign immunity may constitute either a facial or factual attack on jurisdiction

depending on the argument. See L.C. v. United States, 83 F.4th 534, 542 (6th Cir. 2023). Here,

the Court finds that Defendants’ sovereign immunity argument is best characterized as a facial

attack because it challenges Plaintiffs’ request for relief without disputing the facts alleged in the

Complaint. See id.

Defendants contend Plaintiffs are seeking purely retroactive relief—and therefore Ex parte

Young does not apply—because this case is about Defendants’ “isolated past” decision not to place

Plaintiffs’ names on the Tennessee general ballot. (Doc. No. 14 at 6–7). Plaintiffs have not

responded substantively to this argument. (See Doc. No. 18 at 12). Nevertheless, the Court

disagrees with Defendants and finds that Plaintiffs do, in fact, seek prospective relief in this case.

Specifically, Plaintiffs seek an injunction directing Defendants to put the Elector Candidates’

names on the November 5, 2024 election ballot, “certify all 11 Elector Candidates for the offices

of independent Electors for President and Vice President,” and stop printing additional ballots

without their names. (See Doc. No. 8 ¶¶ 3, 66 (2)(b), 77(2)(c), 83(2)(c)). As such, the Ex Parte

Young doctrine applies, and Defendants are not entitled to sovereign immunity over Plaintiffs’

claims.

C. Constitutional Claims

Moving to the merits, Defendants contend that this Court should dismiss the Complaint

under Rule 12(b)(6) because Plaintiffs fail to state a constitutional claim upon which relief may be

granted. (Doc. No. 14 at 8–13). Although the Complaint often groups Defendants’ conduct as

violating both the “First and Fourteenth Amendment,” (see Doc. No. 8 ¶¶ 1, 9, 55), the Court will

address these claims separately. As explained more fully below, the Court does not find that the

Complaint plausibly alleges a constitutional violation to survive Defendants’ Rule 12(b)(6)

motion, and therefore Plaintiffs are not entitled to the declaratory or injunctive relief they have

requested in this case.

1. First Amendment

The Complaint alleges that Defendants violated Plaintiffs’ First Amendment right “to

support the candidates of their choice,” “petition voters,” “associate as Electors with a political

campaign,” and have their own names placed on the Tennessee general election ballot.7 (Doc. No.

18 ¶¶ 15, 58). The First Amendment prohibits States from enforcing laws “abridging the freedom

of speech, or of the press, or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” U.S. Const. amend. I. First Amendment rights are not

absolute, however, and “states may impose reasonable restrictions on ballot access to ensure that

political candidates can show a significant modicum of support from the public, and to avoid

election- and campaign-related disorder.” Green Party of Tennessee v. Hargett, 767 F.3d 533, 545

(6th Cir. 2014) (citation and internal quotation marks omitted); Munro v. Socialist Workers Party,

479 U.S. 189, 193 (1986). “Moreover, a State has an interest, if not a duty, to protect the integrity

of its political processes from frivolous or fraudulent candidacies.” Bullock v. Carter, 405 U.S.

134, 145 (1972) (citation omitted). “And that interest has consistently supported excluding

candidates from the ballot when they are indisputably ineligible for the office to which they

aspire[.]” Lauters, 2024 WL 4517911, at *5.

As an initial matter, notwithstanding their zeal, Plaintiffs’ First Amendment claim does not

square with Tennessee law or the practical reality of presidential elections. “[P]residential

elections in the United States are indirect—it’s the Electoral College that casts the ballots which

actually, directly elect the President”—“[b]ut it’s also generally well-understood that modern

presidential elections are about the presidential candidates, not the people forming the Electoral

College.” Lauters, 2024 WL 4517911, at *4 (citing U.S. Const. Art. II, ¶ 1, ¶¶ 2–3). Tennessee

7 Plaintiffs further allege that Defendants’ actions somehow jeopardized “the First Amendment

rights of all voters that signed the 11 Elector Candidates’ petitions for their right to nominate and

to vote for Electors of their choice at the November 5, 2024 general election.” (Doc. No. 8 ¶ 59).

The Court need not entertain this argument further because it does not find, and Plaintiffs do not

argue, that Plaintiffs have standing to assert a claim under § 1983 on behalf of these unnamed

Tennessee voters. See Stein v. Cortés, 223 F. Supp. 3d 423, 433 (E.D. Pa. 2016).

law reflects this understanding and expressly provides that the “[n]ames of electors need not

appear on the ballot.” Tenn. Code Ann. § 2-5-208(h) (emphases added). Instead, only the “names

of presidential candidates” are placed on the ballot, and a vote for a specific presidential candidate

is counted as a vote for the electors pledged to that candidate. Id.; see also Tenn. Code. Ann. § 2-

15-101; Ray v. Blair, 343 U.S. 214, 229 (1952). There is nothing unconstitutional about

Tennessee’s election practice because “Article two, section one of the Constitution authorizes a

state legislature to determine how presidential electors shall be appointed and does not require the

electors’ names to appear on the ballot if the names of the candidates for president and vice-

president are on the ballot.” Fischer v. Rollins, 1993 WL 219805, at *1 (1st Cir. 1993) (Table)

(citation omitted); see also Conant v. Brown, 248 F. Supp. 3d 1014, 1027 (D. Or. 2017). The

Court therefore joins several other district courts in holding that “the relief [Plaintiffs] are

seeking—to be certified for the ballot—simply doesn’t make sense” because “Presidential electors

don’t appear on the ballot.” See, e.g. Lauters, 2024 WL 4517911, at *4.

Plaintiffs’ First Amendment claim also ignores that “the practice in many states of

allow[ing] a vote for the presidential candidate . . . to be counted as a vote for his party’s nominees

for the electoral college” is a “long-continued practical interpretation of the constitutional

propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the

electoral college[.]” Blair, 343 U.S. at 229; Chiafalo v. Washington, 591 U.S. 578, 597 (2020). If

Plaintiffs win the election, Tennessee law requires them to “cast their ballots in the electoral

college for” Dr. Ayyadurai because he or his party “nominated them as electors.” Tenn. Code

Ann. § 2-15-104(c)(1). Plaintiffs also pledged in writing “to serve and to mark [their] ballots” for

Dr. Ayyadurai for President. (See Doc. No. 8 ¶ 8); see also Tenn. Code. Ann. § 2-15-204(a). And

Plaintiffs cannot disregard their pledge and vote for a different candidate because an elector who

“refuses to present a ballot, presents an unmarked ballot, or presents a ballot marked in violation

of the elector’s pledge under § 2-15-204” automatically “vacates the office of elector.” Tenn.

Code Ann. § 2-15-207(c). Given that presidential candidates and their pledged electors are

inexorably linked by agreement, it is reasonable for Tennessee to exclude from the ballot electors

who have pledged allegiance to a candidate that is constitutionally barred from serving as

President.

The Court also disagrees that Defendants acted “without jurisdiction” and violated the First

Amendment when they excluded the Elector Candidates and Dr. Ayyudarai from the ballot based

solely on Dr. Ayyudarai’s ineligibility to hold the Office of President. (See Doc. No. 18 at 3).

Contrary to Plaintiffs’ suggestion, Defendants have the right to prevent an ineligible, non-natural-

born-citizen from running for President. (See Doc. No. 18 at 2, 4–8 (arguing that there is a

meaningful difference between being qualified to hold office and being qualified to run for office).

“[A] state’s legitimate interest in protecting the integrity and practical functioning of the political

process permits it to exclude from the ballot candidates who are constitutionally prohibited from

assuming office.” Hassan v. Colorado, 495 F. App’x 947, 948–49 (10th Cir. 2012) (Gorsuch, J.)

(citations omitted). “Moreover, courts have held that when determining who can be on a

presidential ballot, a State can enforce” the natural-born-citizen requirement in “Article II, Section

1, Clause 5.” Sias, 2024 WL 4505108, at *6; see also Hassan, 495 F. App’x at 948; Hassan v.

New Hampshire, 2012 WL 405620, at *4 (D.N.H. Feb. 8, 2012). These constitutional rules make

a lot of sense because otherwise, if Tennessee could not exclude a frivolous candidate from the

ballot, then “anyone, regardless of age, citizenship or any other constitutional ineligibility would

be entitled to clutter and confuse [the] electoral ballot.” Lindsay v. Bowen, 750 F.3d 1061, 1064

(9th Cir. 2014). “Nothing in the First Amendment compels such an absurd result.” Id.

Accordingly, Defendants did not violate the First Amendment when they excluded Dr. Ayyudarai

and rejected Plaintiffs’ request to appear on the November 5, 2024 general election ballot.

2. Fourteenth Amendment

The Complaint separately alleges that Defendants violated Plaintiffs’ Fourteenth

Amendment procedural due process rights to run for the independent “office of Electors for

president and vice president.” (See id. ¶¶ 33, 37, 66, 83). Plaintiffs base this claim on the language

from Tenn Code Ann. § 2-3-203(6), which provides that Tennessee holds elections “for the

following offices” during “the regular November election when the election immediately precedes

the commencement of a full term: . . . Electors for president and vice president.” (Id. (emphases

added)). Plaintiffs argue that this language creates a standalone “office of the Electors for president

and vice president” in Tennessee, and that they have a right to run for this office even if their

pledged candidate is ineligible to serve as President. (Id.). This argument, while creative, finds

no support in law or fact.

The Fourteenth Amendment’s Due Process Clause forbids states from “depriv[ing] any

person of life, liberty, or property[] without due process of law.” U.S. Const. amend. XIV, § 1.

To establish a Fourteenth Amendment due process violation, Plaintiffs must show that (1) they

had life, liberty, or property interests protected by the Due Process Clause; (2) they were deprived

of these protected interests; and (3) the state did not afford them adequate procedural

rights. Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). Of course, the

threshold question in adjudicating a procedural due process claim is whether Plaintiffs possessed

a liberty or property interest. Without a protected interest, there is no need to reach the issue of

whether there were adequate deprivation procedures. Wilkinson v. Austin, 545 U.S. 209, 221

(2005); Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir. 2001).

Even if Tennessee had an independent “office of the Electors for president and vice

president,” which it does not, Plaintiffs could not possibly have a constitutionally protected interest

in running for that office. The Supreme Court in Snowden v. Hughes held that “an unlawful denial

by state action of a right to state political office is not a denial of a right of property or liberty

secured by the due process clause.” 321 U.S. 1 (1944). After Snowden, “the lower courts have

repeatedly held that a candidate for political office holds no property or liberty interest in an elected

position.” Newsom v. Golden, 602 F. Supp. 3d 1073, 1083–84 (M.D. Tenn. 2022) (collecting

cases); see also, e.g., Leroy v. New York City Bd. of Elections, 793 F. Supp. 2d 533, 537 (E.D.N.Y.

2011). This Court recently did the same, reasoning that the clear holding from Snowden remains

good law and has not been overruled. See Newsom, 602 F. Supp. 3d at 1084. Here, too, the Court

finds that Plaintiffs have no constitutionally protected interest in their placement on the ballot in

any capacity, and therefore their Fourteenth Amendment due process claim necessarily fails.

D. Purcell Principle

Defendants’ motion raises one final wrinkle regarding the timing of Plaintiffs’ request for

relief. (See Doc. No. 14 at 7–8). In cases involving a challenge to a state’s election procedures,

“the Supreme Court has adopted a unique injunction principle” known as the “Purcell principle.”

Tenn. Conf. of the NAACP v. Lee, 105 F.4th 888, 895 (6th Cir. 2024) (citing Purcell v. Gonzalez,

549 U.S. 1 (2006)). Under this principle, “lower federal courts should ordinarily not alter the

election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm.,

589 U.S. 423, 424 (2020). That is because “[c]ourt orders affecting elections, especially

conflicting orders, can themselves result in voter confusion and consequent incentive to remain

away from the polls. As an election draws closer, that risk will increase.” Purcell, 549 U.S. at 4–

5; see also Merrill v. Milligan, 142 S. Ct. 879, 880–81 (2002) (Kavanaugh, J., concurring).

Although there are no definitive parameters for what constitutes “on the eve of an election,” the

Sixth Circuit has held that injunctions issued one month before an election likely violate the Purcell

principle. Lee, 105 F.4th at 897.

There are many practical reasons for following the Purcell principle in this case. As the

United States District Court for the District of Nebraska recently held:

Practical considerations sometimes require courts to allow elections to proceed

despite pending legal challenges. And this election is already proceeding. Early

voting is underway and mail-in ballots have been distributed and returned. The

election is not merely close, or even imminent—it is happening right now.

So, what can the Court do at this point without running afoul of Purcell? Should

completed ballots be discarded and replaced with new ones? [The Court] would be

hard pressed to think of a situation more confusing to a voter than receiving a

second ballot with instructions to vote again. Should the Court order publication

of new ballots for those who haven’t voted yet? Different ballots issued to

otherwise similarly situated voters would pose different legal problems. And that’s

assuming any of this is even feasible, for which the plaintiffs have made no

showing.

Lauters, 2024 WL 4517911 (citations and internal quotation marks omitted). The Court shares

these same concerns, and Plaintiffs do not explain how changing the Tennessee general election

ballot at this late hour is feasible or would avoid voter confusion. In any event, because the Court

will grant Defendants’ motion to dismiss on the merits and effectively maintain the status quo, the

Court will not alter Tennessee’s elections rules in violation of the Purcell principle.

IV. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part Defendants’ Motion

to Dismiss (Doc. No. 13) and dismiss this entire case under Rule 12(b)(6).

An appropriate order will enter.

WAVERLY i RGNSHIA JR.

UNITED STATES DISTRICT JUDGE

15