Gary Wygant v. Bill Lee, Governor

12/10/2025

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 3, 2024 Session

GARY WYGANT, ET AL. v. BILL LEE, GOVERNOR, ET AL.

Direct Appeal from the Chancery Court for Davidson County

No. 22-0287-IV

Russell T. Perkins, Chancellor; J. Michael Sharp, Judge; and

Steven W. Maroney, Chancellor

___________________________________

No. M2023-01686-SC-R3-CV

___________________________________

HOLLY KIRBY, J., concurring in part and dissenting in part.

I agree with most of the majority’s excellent opinion, including its conclusions

concerning Mr. Wygant’s claim. I write separately because I disagree with the majority’s

analysis and conclusion on Ms. Hunt’s standing.1

With respect, on Ms. Hunt’s claim, there is much the majority opinion doesn’t talk

about. As explained below, in denying that Ms. Hunt has standing, Tennessee becomes

the first state in the nation to hold that a voter does not have standing to challenge the

constitutionality of her own voting district. The State has cited no case from anywhere in

the country—federal or state—holding what the majority now holds: that a voter who has

been placed into an unconstitutionally-configured voting district suffered no harm from it

and has no standing to challenge it. And the majority cites no such case in its opinion. Not

one.

The majority doesn’t talk about the fact that, like Mr. Wygant, Ms. Hunt asserts a

district-specific claim. And like Mr. Wygant, Ms. Hunt is the object of the redistricting of

her voting district; she alleges representational harm caused by the unconstitutional

configuration of her district. State and federal cases across the country recognize that a

voter who has been placed into an unconstitutionally configured district is harmed by the

1

Citing Case v. Wilmington Trust, N.A., 703 S.W.3d 274, 289 (Tenn. 2024), the majority concludes

that the claim Ms. Hunt is asserting involves public rights. In this separate opinion, I refrain from reaching

the issue of whether Ms. Hunt’s claim involves public rights; I instead assume arguendo that Ms. Hunt’s

claim involves public rights. For that reason, I assume Ms. Hunt is required to show injury-in-fact, as noted

in Wilmington Trust, and conclude that she has standing even with that assumption. Wilmington Tr., 703

S.W.3d at 291 (noting that prior Tennessee cases requiring injury-in-fact involved public rights).

constitutional violation and has injury-in-fact to satisfy standing requirements like ours.

Case v. Wilmington Tr., N.A., 703 S.W.3d 274, 291 (Tenn. 2024) (noting Tennessee’s

injury-in-fact requirement for public rights cases).

The majority overlooks this established redistricting jurisprudence and erects

additional hurdles for Ms. Hunt. This is error in and of itself.

But the majority’s analysis of those additional hurdles is also flawed. Ms. Hunt in

fact clears every one of them. She has sustained injury now in the form of a 3-1 staggered-

term representative structure for District 17 and Davidson County, instead of the

constitutionally-required 2-2 structure. Turnover will most certainly occur in District 17

and Davidson County, and injury from the unconstitutional 3-1 structure is certain to

manifest each time it does. The redistricted map places Ms. Hunt in a different senate

district with a new senator whom she perceives as not connected to her county. Ms. Hunt

felt that her previous senator could understand her county’s concerns, and the redistricting

shortened the period of time she was represented by the previous senator. And Ms. Hunt

now resides in a senate district whose misnumbering renders it unconstitutional. All of this

is discussed further below.

First, consider what the majority doesn’t talk about. Without question, Ms. Hunt

asserts a district-specific claim, and the majority’s analysis of Ms. Hunt’s standing doesn’t

mention it. Ms. Hunt contends that the misnumbering of her own Senate voting district

violates Article II, Section 3 of the Tennessee Constitution, which requires: “In a county

having more than one senatorial district, the districts shall be numbered consecutively.”

Tenn. Const. art. II, § 3. She seeks only to correct the misnumbering of her own Senate

district.2 Her trial expert created an alternative Senate reapportionment plan that would

remedy that constitutional violation. The entire trial court panel, including the dissent,

viewed Ms. Hunt’s claim as district-specific. Ms. Hunt’s claim here is district-specific.3

Next, like Mr. Wygant, Ms. Hunt is the object of the redistricting of her Senate

district. “[S]tanding depends considerably upon whether the plaintiff is himself an object

2

Even if Ms. Hunt had not limited her own claim, the majority limits Mr. Wygant’s statewide claim

to a district-specific claim and the same would ordinarily be done for Ms. Hunt’s claim.

3

In its briefs before this Court, the State asserts that Ms. Hunt challenges the statewide map and

argues that allowing her to bring this claim would constitute judicial overreach. In support, the State points

to a statement made in the filings of Plaintiffs Gary Wygant and Akilah Moore during the temporary

injunction proceedings. But Ms. Hunt had not joined the lawsuit at this point, and the statement in question

cannot fairly be attributed to her. It is clear from the record of the proceedings below that the relief Ms.

Hunt seeks is district-specific.

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of the action . . . at issue. If he is, there is ordinarily little question that the action . . . has

caused him injury. . . .” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561–62 (1992). See also

Wilmington Tr., 703 S.W.3d at 283 n.8 (quoting same language in Lujan). Here, Ms. Hunt

belongs to a unique subset of voters: she not only lives in District 17, she lives in the small

portion of Davidson County located in District 17, which makes her district subject to the

constitutional consecutive numbering requirement. It is undisputed that District 17, Ms.

Hunt’s new voting district, was misnumbered. As a voter in District 17, Ms. Hunt was the

“object” of the State’s unconstitutional misnumbering of her voting district. See Gill v.

Whitford, 585 U.S. 48, 66 (2018) (“[W]e have held that a plaintiff who alleges that he is

the object of a racial gerrymander—a drawing of district lines on the basis of race—has

standing to assert only that his own district has been so gerrymandered.” (emphasis added)

(citing United States v. Hays, 515 U.S. 737, 744–45 (1995)).

As the object of the unconstitutional misnumbering of her Senate district, Ms. Hunt

has sustained representational harm. The United States Supreme Court has recognized

“representational harm” in the context of racial gerrymandering, where harm to voters in a

voting district arises from the tangible configuration of district in a way that violates

constitutional standards. See, e.g., Hays, 515 U.S. at 744. Summarizing its “standing

principles,” the Court explained that “the harm asserted by the plaintiffs is best understood

as arising from a burden on those plaintiffs' own votes,” which in a gerrymandering context

arises from “a voter's placement in a” gerrymandered district. Gill, 585 U.S. at 69. For

that reason, if a plaintiff “resides in a racially gerrymandered district, . . . the plaintiff has

. . . standing to challenge the legislature's action.” Hays, 515 U.S. at 745.

The same has been held as to violations of state constitutional provisions governing

the structure of voting districts—like the Tennessee constitutional provisions at issue here.

For example, in Wilkins v. West, the plaintiffs alleged that certain reapportioned legislative

districts in Virginia violated constitutional requirements of compactness and contiguity,

and also that they were racially gerrymandered in violation of the Virginia Constitution.

571 S.E.2d 100, 106 (Va. 2002). As to the racial gerrymandering allegations, the Virginia

Supreme Court adopted the reasoning on standing used by the United States Supreme Court

in Hays. Id. at 106–07 (citing Hays, 515 U.S. at 743). On the alleged violations of the

state constitutional provisions on compactness and contiguity, the Wilkins Court likened

the harm caused by these provisions to “representational harms” suffered in racial

gerrymandering cases, and it adopted the same standard:

While this standard was developed in the context of racial gerrymandering

claims, we believe the same standard is appropriate to establish standing for

allegations that electoral districts violate the compactness and contiguous

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requirements of Article II, § 6 of the Constitution of Virginia. If a district

fails to meet the compactness and contiguous requirements, residents of that

district are directly affected by the legislature's failure to comply with the

Constitution of Virginia. In the absence of residency in a challenged district,

a complainant can establish standing only by showing a particularized injury.

Id. at 107. The only evidence of injury produced by the plaintiffs in Wilkins was proof of

residency in their legislative districts. Id. at 106. That was enough. The Wilkins Court

recognized that residents in the challenged electoral districts sustained representational

harm from being placed into unconstitutionally configured districts and had standing to

assert district-specific claims.4 Id. at 107.

Similarly, in Abbott v. Mexican American Legislative Caucus, Texas House of

Representatives, a redistricting case cited in the majority opinion, the Texas Supreme Court

held that an individual voter had an injury-in-fact for purposes of standing for allegations

that the reapportioned district violated county-splitting prohibitions in the Texas

constitution. 647 S.W.3d 681, 695 (Tex. 2022).5 As a resident of the county and of the

partial district that had been split, the voter established particularized injury to challenge

the allegedly unconstitutional split into two districts.6 Id. (“[W]e agree that Cortez has

sufficiently alleged a particularized injury as a Cameron County (and, notably, as a District

37) resident.”). If a resident of the county at issue did not have standing to pursue a claim

4

The Virginia Supreme Court held that residence in an allegedly unconstitutional district shows

particularized injury without the need for further proof. Wilkins, 571 S.E.2d at 107 (explaining that the

particularized injury requirement applies to claims of an unconstitutionally-configured district, including

but not limited to racial gerrymandering, and residents of the affected district suffer “representation harm”

and are “directly affected” by the constitutional violation, so they are deemed to have standing “without

further proof of personalized injury” beyond proof of residency).

5

Texas follows the federal requirements for standing, including the requirement for a particularized

injury-in-fact. See Abbott, 647 S.W.3d at 690 (citations omitted).

6

The voter originally also alleged injury as a candidate in the district, but the holding was not based

on his allegations of candidate status. Abbott, 647 S.W.3d at 695 n.4. It was based only on his residence

in the challenged district.

In Abbott, notwithstanding the finding of particularized injury, the court noted that the individual

plaintiffs had sued the wrong defendant; they sued only the State of Texas. Id. at 697–98. Their injuries

were not traceable to the State of Texas, so the individual plaintiffs “failed to meet the traceability element

of standing.” Id. at 698. The Court found this defect was “curable” and remanded to give the individual

plaintiffs an opportunity to replead. Id. at 704. There are no allegations in this case that Ms. Hunt sued the

wrong defendant.

-4-

under that constitutional provision, the Texas Supreme Court said, “we struggle to envision

a plaintiff who would.” Id. at 693. Abbott described “[v]oting in a lawfully apportioned

district” as “a personal right.” Id. at 694.

Thus, for state constitutional provisions that seek to enhance voter communities,

such as county integrity, contiguity, and the like, states view reapportionment violations as

causing district residents a type of representational harm sufficient to satisfy injury-in-fact

requirements, not unlike voters in United States Supreme Court cases involving racially

gerrymandered districts. See, e.g., Abbott, 647 S.W.3d at 694; Wilkins, 571 S.E.2d at 107;

Graham v. Sec’y of State Adams, 684 S.W.3d 663, 677 (Ky. 2023) (“[T]he Apportionment

Plans interfere with their interest in translating their votes into representation under fair

and constitutional apportionment plans. . . . As such, the standing requirement of actual,

concrete, and particularized injury is satisfied”). See also In re Reapportionment of Towns

of Hartland, Windsor & W. Windsor, 624 A.2d 323, 330 (Vt. 1993) (“All of the

nonnumerical criteria at issue here. . . are not only important but are related to one another

in that they share the common purpose of assuring more effective representation.”). Cf.,

Hays, 515 U.S. at 745 (referring to “the special representational harms racial classifications

can cause in the voting context”).

Here, Ms. Hunt also describes her claim in terms of representational injury or harm.

Her complaint alleges that the new Senate map violates her “constitutional right, as a

Davidson County resident and voter, to representation by a consecutively numbered county

senatorial delegation and her right to vote in a senatorial district constructed in compliance

with the Tennessee Constitution.” In opening statements at trial, her counsel said she had

been “denied the opportunity to vote for . . . a staggered term senate delegation, and to be

represented by it.” Ms. Hunt’s brief to this Court refers to the “unique voting rights” the

Tennessee Constitution gives citizens of populous counties, including the “constitutional

right to be represented in the State Senate as a political group by senators subject to election

by all voters within that political group,” the “constitutional right to vote in a senatorial

district consecutively numbered with the other senatorial districts in her county of

residence,” and “the political power to elect staggered-term legislative delegations

regardless of the unique dynamics of any given election.”

Ms. Hunt’s claim is similar to Mr. Wygant’s claim. Mr. Wygant’s claim is based

on Section 5 of Article II of our Constitution, while Ms. Hunt’s claim is based on Section

3 of Article II. As is clear from the text and history of both sections, both implicate the

same concerns for preserving counties as cohesive units of representation.7 Both

7

Counties are a predominant political subdivision in Tennessee’s Constitution. The word “county”

(or a variation of the word) is used over 115 times in our modern Constitution. The focus on counties began

-5-

provisions were added to the Constitution in 1966 with the objective of improving

representation and advancing the shared political interests of the county as an entity.8 Our

constitutional history and redistricting jurisprudence recognize the importance of the

interests served by these provisions. See State ex rel. Lockert v. Crowell, 631 S.W.2d 702,

709 (Tenn. 1982) (“Lockert I”) (noting that there are “excellent policy reasons for the

presence of a provision that counties must be represented in the Senate,” including the

legislature’s ability to pass legislation with local application and effects); State ex rel.

Lockert v. Crowell, 656 S.W.2d 836, 840 (Tenn. 1982) (“Lockert II”) (noting that in federal

with the State’s founding, and Tennessee’s earliest Constitution included provisions to protect county

integrity in apportionment by prohibiting the division of counties to form senatorial districts. See Tenn.

Const. art. II, § 4 (1796) (“When a District shall be composed of two or more Counties, they shall be

adjoining, and no County shall be divided in forming a District.”); Tenn. Const. art. II, § 6 (1834) (“When

a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in

forming a district.”); Tenn. Const. art. II, § 6 (1870) (“When a district is composed of two or more counties,

they shall be adjoining; and no county shall be divided in forming a district.”).

8

Article II, Section 3 was the subject of much discussion at the 1965 Constitutional Convention.

Transcript of the Proceedings (Aug. 11, 1965) in Journal and Proceedings of the Limited Constitutional

Convention of Tennessee 502–11 (1966), https://hdl.handle.net/2027/uc1.b4181359 (hereinafter

Constitutional Convention); Transcript of the Proceedings (Aug. 12, 1965) in Constitutional Convention,

supra, at 541–53; Transcript of the Proceedings (Nov. 30, 1965) in Constitutional Convention, supra, at

817–20. As the text of the Convention’s Journal makes clear, the primary purpose of Article II, Section 3

was to produce more effective representation for counties as a whole by letting Senators gain legislative

experience and focus less on campaigning. See Statement of James L. Bomar (July 29, 1965) in

Constitutional Convention, supra, at 413 (“It was felt that by extending the term of Senators to 4 years,

greater continuity of service and experience would be gained. . . Its enactment is in line with modern views

for improved legislative process.”); Statement of Frierson M. Graves, Jr. (Aug. 12, 1965) in Constitutional

Convention, supra, at 541–42 (“Why did we stagger the terms of Senators? And why did we increase the

terms? . . . [E]xperience gained during the first part of a session or during the legislator’s time in office

would . . . make the Senate a more deliberative body in their actions”); id. at 544 (In a four-year term,

senators “can give better service to the State”).

The structure for enhanced representation for counties included the consecutive numbering

provision. See Statement of Frierson M. Graves, Jr. (Aug. 11, 1965) in Constitutional Convention, supra,

at 502–03 (“Now in order to stagger the terms of office we provided that there would be two classes of

Senators and the easiest way of division would be in the even and odd-numbered senatorial districts in

which we are divided . . . . In order to provide that there would be equal rotation in counties that had more

than one senatorial district, we provided that these counties would be numbered consecutively . . . . The

whole purpose being so that there will be approximately one-half of the Senators experienced and only one-

half coming up for election each time, but with a whole group of Representatives coming up for election

and responsibility to the people on a two-year basis.”). See also Statement of Richard Fisher (Dec. 1, 1965)

in Constitutional Convention, supra, at 896–97 (“I believe that any county . . . needs representation of it as

an entity and its entirety in state government. It has problems that are broad in scope, broader than these

districts in which the county will be divided[.]”).

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equal protection contexts, “a constitutionally backed state policy of preserving county

boundaries will clearly be given high priority in the table of legitimate state policy

considerations to justify variances from the ideal”).

While the majority acknowledges that Mr. Wygant suffered a type of

representational harm, it does not even mention representational harm in connection to Ms.

Hunt. But analytically, they are the same. Ms. Hunt’s placement into a district that is not

consecutively numbered, as required under Article II, Section 3, deprives her of the full

panoply of constitutional protections intended to improve legislative representation for

populous counties. In short, she has suffered “representational harm.”

And, like Mr. Wygant, Ms. Hunt’s representational harm is injury-in-fact, sufficient

to give her standing to assert a district-specific claim.9

This is the norm in state redistricting jurisprudence. Across the nation, voters have

been allowed to challenge the constitutionality of their own voting districts. States

recognize the representational harm sustained by voters who are placed into a voting

district that violates constitutional standards—and recognize that it gives them standing.

Here, neither the State nor the majority cites a redistricting case in which a voter in

Ms. Hunt’s position—who asserts a district-specific claim challenging the constitutionality

of her own legislative district—was found not to have sustained particularized injury for

standing. Not even one. And I have found none.

Surveying the states, a number have either constitutional provisions or a statute

granting standing to voters or public officials to challenge reapportionment.10

9

The majority inaccurately describes my position as “a voter always has standing to challenge the

constitutionality of the voter’s own voting district, regardless of the nature of the voter’s claim or alleged

injury.” Respectfully, in this separate opinion, I do not offer an advisory opinion about such a situation, as

it is not presented here. Here, Ms. Hunt was placed into an unconstitutionally configured senate district;

she was directly affected by the redistricting and has alleged ample representational harm caused by it. My

position is that her representational harm gives her standing in this case.

10

See, e.g., Alaska Const. art. VI, § 11 (granting standing to “[a]ny qualified voter”); Ark. Const.

art. VIII, § 5 (“any citizen[] and taxpayer[]”); Cal. Const. art. XXI, § 3(b)(2) (“any registered voter”); Conn.

Const. art. III, § 6d (“any registered voter”); Del. Const. art. II, § 2A ( “[a]ny qualified voter”); Haw. Const.

art. IV, § 10 (“any registered voter”); Iowa Const. art. III, § 36 (“any qualified elector”); Me. Const. art.

IX, § 24(3) (“any citizen or group of citizens”); Md. Const. art. III, § 5 (“any registered voter”); Mass.

Const. amend. art. CI, § 3 (“any voter of the Commonwealth”); Mo. Const. art. III, § 7(i) (“an eligible

Missouri voter who sustains an individual injury by virtue of residing in a district that exhibits the alleged

-7-

In the majority of state redistricting cases, with or without such provisions, the

standing of plaintiff voters to challenge reapportionment of their own voting district has

never been questioned.11 Until the present case, Tennessee also fell into this category.12

See, e.g., Lockert I, 631 S.W.2d at 704 (standing of voters in affected districts “not in

issue”); Lockert II, 656 S.W.2d at 840 (standing of voters not questioned); State ex rel.

Lockert v. Crowell (Lockert III), 729 S.W.2d 88 (Tenn. 1987) (same).

But in every state redistricting case where standing is discussed, courts have

recognized that voters who are redistricted into an unconstitutionally-configured district

violation, and whose injury is remedied by a differently drawn district”); N.Y. Const. art. III, § 5 (“any

citizen”); Okla. Const. art. V, § 11C (“[a]ny qualified elector”); Or. Const. art. IV, § 6(2)(a) (“any elector”).

See also Mich. Comp. Laws § 4.18 (“any elector”); Minn. Stat. § 200.57(a) (“any individual aggrieved by

a violation of this act”).

11

See, e.g., Rice v. English, 835 So. 2d 157, 159 (Ala. 2002); Arizona Minority Coal. for Fair

Redistricting v. Arizona Indep. Redistricting Comm’n, 208 P.3d 676, 682 (Ariz. 2009) (en banc); Blum v.

Schrader, 637 S.E.2d 396, 397 (Ga. 2006); Pentico v. Idaho Comm’n for Reapportionment, 504 P.3d 376,

379 (Idaho 2022); Durst v. Idaho Comm’n for Reapportionment, 505 P.3d 324, 328 (Idaho 2022); State ex

rel. Welsh v. Marion Super. Ct., Room 5, 185 N.E.2d 18, 19 (Ind. 1962); Rivera v. Schwab, 512 P.3d 168,

173, 177 (Kan. 2022); Wattson v. Simon, 970 N.W.2d 42, 44–45 (Minn. 2022); Mauldin v. Branch, 866 So.

2d 429, 430 n.2 (Miss. 2003); Pick v. Nelson, 528 N.W.2d 309, 313 (Neb. 1995); Grisham v. Van Soelen,

539 P.3d 272, 276 (N.M. 2023); League of Women Voters of Ohio v. Ohio Redistricting Comm’n, 195

N.E.3d 974, 978 (Ohio 2022); State ex rel. Cooper v. Tennant, 730 S.E.2d 368, 373–76 (W. Va. 2012).

12

The majority suggests we should ignore cases where the standing of voters who live in the

challenged district was not questioned, including our own. But in jurisdictions where “standing is a

question of subject matter jurisdiction that can never be waived and that courts must raise sua sponte,” the

fact that a redistricting case is addressed on the merits “implicitly supports that plaintiffs similarly situated

. . . have standing.” Pereira v. Town of N. Hempstead, 682 F. Supp. 3d 234, 243 (E.D.N.Y. July 13, 2023).

See also Baker v. Carr, 369 U.S. 186, 206 (1962) (holding that the plaintiffs had standing and noting that

prior decisions “have assumed rather than articulated the premise in deciding the merits of similar claims”).

Indeed, a case relied upon by the majority in analyzing Ms. Hunt’s standing does just that. See

State ex rel. Steinke v. Lautenbaugh, 642 N.W.2d 132, 138 (Neb. 2002) (“[B]y reaching the merits and

determining that the statute requiring election by subdistrict was constitutional, Barnett implicitly

recognized that the plaintiffs had standing to bring the action.”).

And regardless, these cases are part of the national landscape, in which state and federal courts

have uniformly recognized that a voter who has been placed into an unconstitutionally configured voting

district has standing to challenge the constitutionality of her own district.

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are harmed by it and have standing to challenge the constitutionality of their own districts.13

States recognize representational harm and injury based on the voter’s “placement” into

the challenged district.14 Gill, 585 U.S. at 69.

In sum, the topics omitted from the majority’s analysis of Ms. Hunt’s claim are

plenty to show that Ms. Hunt has standing to challenge the constitutionality of her Senate

district. As a voter in the challenged Senate district, Ms. Hunt is the object of the

unconstitutional misnumbering of that district and was harmed by it. She maintains a

district-specific claim asserting representational harm. Based on established redistricting

jurisprudence the majority acknowledges as to Mr. Wygant, it’s apparent that Ms. Hunt

likewise satisfies the requirements for standing.

The Court here need not go further to assess Ms. Hunt’s standing. Under long-

accepted redistricting caselaw, as a voter redistricted into an unconstitutional voting

district, she is recognized as having sustained representational harm from the constitutional

violation.

But the majority here bypasses Ms. Hunt’s representational harm and then erects

additional hurdles before her. This is error. And on top of that error, its analysis on those

additional requirements is flawed.15 As explained below, Ms. Hunt clears all of the hurdles

the majority erects.

13

See, e.g., Abbott, 647 S.W.3d at 693, 695; Wilkins, 571 S.E.2d at 107; Faatz v. Ashcroft, 685

S.W.3d 388, 396 (Mo. 2024) (en banc) (“Each Appellant lives in a district in which a community has been

split in alleged violation of the Missouri Constitution and, therefore, has standing to challenge the Senate

Map.”). Cf. In re Reapportionment, 624 A.2d at 335 (“[W]e agree with the State that petitioners have no

standing to raise [a claim based on compactness, contiguity, and common interest requirements in the state

constitution] because they do not reside in the challenged district.”). Some courts that have addressed

standing do not even require district residency. See, e.g., Carpenter v. Hammond, 667 P.2d 1204, 1208–09

(Alaska 1983) (holding registered voter in Alaska seeking to challenge a reapportionment plan even though

“she does not reside in or near the challenged district” had standing under constitution and Alaska common

law); Graham, 684 S.W.3d at 677 (finding standing for voters’ claims based on representational harm

without considering district residency); Harkenrider v. Hochul, 197 N.E.3d 437, 444–45 (N.Y. 2022)

(holding New York voters had standing to challenge reapportionment in districts in which they did not live).

14

This survey of state redistricting cases renders implausible the State’s notion that permitting a

voter such as Ms. Hunt to challenge the constitutionality of her own voting district offends separation of

powers. If it did, surely the State would have discovered one other court that denied standing to a voter

who lived in the challenged district based on separation of powers. It cited no such case.

15

I respond to the majority’s analysis on its own terms, but overall, its over-focus on short-term

effects like the outcome of the most recent senate election for District 17 and Davidson County is

concerning. The constitutional provisions at issue in this appeal govern structural elements for legislative

-9-

Take its discussion of whether Ms. Hunt’s harm is “actual or imminent.” The

majority briefly frames the objective of the consecutive numbering requirement in Article

II, Section 3 as “designed to promote political stability by preventing all the Senate

positions in a particular county from turning over at the same time.”16 The majority seems

to characterize the protections of the provisions in Article II, Section 3 as meant to prevent

“greater-than-usual turnover.” It then says that the fact that “only one of the three Davidson

County Senate seats up for election 2022 turned over” leads inevitably to the conclusion

that Ms. Hunt’s injury is “conjectural” or “hypothetical” or a “mere possibility.” This is

incorrect.

The citizens who ratified Article II, Section 3 well understood that voters may return

senators to office term after term. The near-term results of the most recent election are not

relevant to the assessment of Ms. Hunt’s injury. The consecutive numbering provision was

not intended to prevent turnover or “greater-than-usual turnover,” whatever that means. As

is evident from the text, it is intended to work with the other provisions in Article II, Section

3 to provide voters with better representation when turnover occurs.

The provisions in Article II, Section 3 link senate districts in populous counties to

enhance the representation of their shared interests.17 One mandates that counties with two

districts that are intended to affect election results over the long term, but the majority’s analysis focuses

mainly on immediate effects. For example, for Mr. Wygant, the majority dismisses his complaint that

Gibson County is no longer represented by a Gibson County resident by saying that “it will always be

possible that Gibson County’s representative could reside in a different county.” This is corrosive

reasoning. It is hard to imagine a court in a racial gerrymandering case making a similar observation, that

the election of a white candidate is “always a possibility” in a district that includes some white citizens. Cf.

Petteway v. Galveston Cnty., 667 F. Supp. 3d 447, 464 (S.D. Tex. 2023) (rejecting defendants’ argument

that plaintiff’s racial gerrymandering case was moot because the county executive appointed an African

American to serve in the disputed new district).

16

The majority interjects a comment that “even assuming” deprivation of its intended enhancement

to stability of representation “would constitute the sort of ‘distinct and palpable’ injury that suffices to

establish standing . . . .” This seems to suggest that it is questionable whether the consecutive numbering

requirement accomplishes anything at all. Respectfully, that’s not our call to make. Our job doesn’t include

assessing whether the consecutive numbering requirement is effective in providing its intended benefit to

voters. That assessment was made by the voters who ratified the 1966 amendments to the Constitution.

17

Ms. Hunt alleges this type of injury, asserting that she “suffers an individualized injury every

time she votes in District 17 because District 17’s misnumbering dilutes the political power of her vote as

compared to the voters in the state’s other populous counties.” Enhancing the representation of District 17,

as linked to the other Davidson County senate districts, can fairly be characterized as leveraging the political

power of voters in District 17.

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or more senators are divided into “separate districts.”18 Tenn. Const. art. II, § 6. Another

extends the term of senators from two years to four years but provides staggered terms,

with half up for election every two years. Tenn. Const. art. II, § 3. And the provision at

issue here requires consecutive numbering of senate districts in populous counties with

multiple districts. Tenn. Const. art. II, § 3. The text and the history of the provisions in

Article II, Section 3 show they were meant to work together—long term—to enhance

voters’ representation.19 They are “not only important but . . . related to one another in that

they share the common purpose of assuring more effective representation.” In re

Reapportionment, 624 A.2d at 330. See Lockert I, 631 S.W.2d at 709 (noting that there are

“excellent policy reasons for the presence of a provision that counties must be represented

in the Senate”).

Here, we may not know when, but we know for sure that turnover in representation

for District 17 and Davidson County will occur. One way or another, even the most

successful legislators will eventually leave office. That’s neither “conjectural,”

“hypothetical,” nor a “mere possibility.” It’s a certainty. See Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 409 (2013) (holding that an injury is imminent if it is “certainly

impending”). Cf. McConchie v. Scholz, 567 F. Supp. 3d 861, 875 (N.D. Ill. 2021) (for

redistricting claims, “probability of future injury counts as injury for the purpose of

standing”) (cleaned up).

18

The debate on this provision centered on whether division into separate districts should be

mandatory or permissive, and whether those counties should be represented by senators at-large or senators

from separate districts. See Transcript of the Proceedings (Dec. 1, 1965) in Constitutional Convention,

supra, at 890–99; Transcript of the Proceedings (Dec. 9, 1965) in Constitutional Convention, supra, at

967–68.

19

For example, delegates of the Limited Constitutional Convention of 1965 explained:

Now in order to stagger the terms of office we provided that there would be two classes of

Senators and the easiest way of division would be in the even and odd-numbered senatorial

districts in which we are divided . . . . In order to provide that there would be equal rotation

in counties that had more than one senatorial district, we provided that these counties would

be numbered consecutively . . . . The whole purpose being so that there will be

approximately one-half of the Senators experienced and only one-half coming up for

election each time. . . .

Statement of Frierson M. Graves, Jr. (Aug. 11, 1965) in Constitutional Convention, supra, at 502–03.

Another delegate explained: “I believe that any county . . . needs representation of it as an entity and its

entirety in state government.” Statement of Richard Fisher (Dec. 1, 1965) in Constitutional Convention at

896–97.

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And when turnover occurs, Ms. Hunt will have a 3-1 staggered representative

system for the county’s four senate districts, instead of the constitutionally required 2-2

staggered representative system. See Tenn. Const. Art. II, § 3. This isn’t a “statistical

probability” as asserted by the majority; it’s a certainty. Clapper, 568 U.S. at 409. Ms.

Hunt has been denied the more effective senate representation our Constitution requires for

her.

Thus, Ms. Hunt’s injury is both immediate and future. Right here and now, Ms.

Hunt has lost the staggered-term representational structure guaranteed by the Tennessee

Constitution and enjoyed by other populous counties. And forevermore under the

challenged Senate map, every time District 17 and Davidson County experience turnover

in representation, voters in District 17 will have a 3-1 staggered representative system for

Davidson County’s four senate districts instead of the constitutionally required 2-2

staggered system. See Tenn. Const. Art. II, § 3.

The majority also quibbles with Ms. Hunt’s description of her injury as, in some

respects, akin to vote dilution. It criticizes that the unconstitutional misnumbering of Ms.

Hunt’s Senate district “does not implicate the one-person, one-vote principle,” does not

“involve gerrymandering,” and “does not affect the weight or strength of her vote,” so it is

not vote dilution. But differentiating Ms. Hunt’s harm from the harm in other cases doesn’t

show she sustained no harm.

Ms. Hunt readily acknowledged that her claim was “not vote dilution in the

framework of a malapportionment case.” Her counsel described it instead as a diminution

“of essentially the political power of your vote” because Davidson County voters in District

17 did not have the representational strength afforded to other populous counties under the

constitutionally required 2-2 staggered representative system.20 Her brief described it as

“diluting the political weight of [Davidson County voters] as compared to the votes of the

citizens of the State's other populous counties.”21

These arguments merely describe the type of representational harm Ms. Hunt

sustained from this particular constitutional violation. This is done in other redistricting

20

Asked to explain the nature of Ms. Hunt’s “vote dilution” claim at oral argument, Ms. Hunt’s

counsel explained that it was “in some respects vote dilution, but not vote dilution in the framework of a

malapportionment case. Vote dilution in a diminishment of essentially the political power of your vote

because our Constitution as amended . . . included a long-recognized benefit of continuity and stability

within government by creating staggered terms, and afforded that right to the citizens of populous counties.”

21

Ms. Hunt also argued that “District 17’s misnumbering dilutes the political power of her vote as

compared to the voters in the state’s other populous counties.”

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cases that are not gerrymandering. For example, the Abbott case cited by the majority

alluded to the plaintiffs’ description of their county-splitting claims as “representational

dilution,” in that county residents’ voting power would be diluted by being split. Abbott,

647 S.W.3d at 692. The provisions in Article II, Section 3, including the consecutive

numbering provision, “share the common purpose of assuring more effective

representation.” In re Reapportionment, 624 A.2d at 330.

In the same vein, the majority sums up Mr. Wygant’s allegations: “In essence,

Wygant is alleging that the split of Gibson County reduces the effectiveness of his

representation in the House.” The majority accepted this as representational harm to Mr.

Wygant. Ms. Hunt describes her injury from the unconstitutional misnumbering of her

senate district in a similar way. Like Mr. Wygant, she has sustained representational harm.

Consider next the majority’s conclusion that Ms. Hunt was not injured because

“[t]he new map moved Hunt from District 18, which voted for state senators in presidential

election years, to District 17, which voted for state senators in gubernatorial election

years,” so Ms. Hunt’s “opportunity to vote was accelerated, not delayed.”22 But voters

22

The case cited by the majority in support of this conclusion, State ex rel. Steinke v. Lautenbaugh,

642 N.W.2d 132 (Neb. 2002), is pretty thin gruel. The majority describes it as “concluding that voter had

standing to challenge renumbering of legislative districts where his vote was delayed.” But Steinke does

not involve unconstitutional legislative districts; the plaintiffs there asserted that a county election

commissioner exceeded his statutory authority by renumbering school board districts. 642 N.W.2d at 136

(citing Neb. Rev. Stat. §§ 32-552, -553 (1998 & Supp. 2001)).

Because Steinke was not a constitutional redistricting case, it did not even consider the “special

representational harms” that occur in constitutional redistricting settings. Cf. Hays, 515 U.S. at 745 (noting

that voters in racially gerrymandered districts in violation of equal protection may suffer “special

representational harms”); Wilkins, 571 S.E.2d at 107 (adopting representational harm standard for

“allegations that electoral districts violate the compactness and contiguous requirements of Article II, § 6

of the Constitution of Virginia”). And it did not pretend to describe the minimum parameters for standing

in constitutional redistricting cases.

And the majority’s analysis as to Steinke veers uncomfortably close to reasoning by negative

inference or denying the antecedent. An example of this type of unsound reasoning is:

If it is snowing, then it is cold outside.

It is not snowing.

Therefore, it is not cold outside.

Here, the majority describes Steinke as “concluding that [a] voter had standing to challenge renumbering

of legislative districts where his vote was delayed.” Because the redistricting here caused the election to

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with similar injury have been deemed to have standing to challenge the constitutionality of

their voting districts.

For example, in Pereira v. Town of North Hempstead, plaintiff McHugh resided in

District 5 prior to redistricting of town board voting districts; after redistricting, he resided

in District 4. 682 F. Supp. 3d 234, 242 (E.D.N.Y. 2023). The town board had staggered

terms of office by district number, and the redistricting caused the plaintiff’s next election

date to fall two years earlier. Id. Similar to the reasoning of the majority here, the

defendants in Pereira argued that McHugh was not injured because his ability to vote for

a new representative was not delayed, it was “accelerated.” Id. The federal district court

rejected this argument:

While it is a close call, the Court finds that Plaintiffs have alleged enough to

show that McHugh suffered an injury in fact. In Gill v. Whitford, the Supreme

Court articulated that Article III standing “is best understood as arising from

a burden on . . . plaintiffs’ own votes,” which in the “gerrymandering context

. . . arises through a voter's placement in a[n]” allegedly unconstitutional

district. 138 S. Ct. at 1931. Here, McHugh has alleged district-specific harm

that is concrete and particularized—he alleges that he will be in a different

district in the new map, with a new representative, and will be represented

for only two years by his current representative when he previously would

have been represented for four.

Id. See id. at 243 (stating that “at least one federal court has found that similarly situated

plaintiffs had standing” (citing League of Women Voters of Chicago v. Wolf, 965 F. Supp.

2d 1007, 1011 (N.D. Ill. 2013), aff’d sub nom., League of Women Voters of Chicago v. City

of Chicago, 757 F.3d 722 (7th Cir. 2014)).23

As in Pereira, after the redistricting, Ms. Hunt is in a different district, with a new

senator. Prior to being “swapped,” Ms. Hunt was in District 18 with Senator Ferrell Haile.

After being swapped, Ms. Hunt is now in District 17 with Senator Mark Pody. Ms. Hunt

met with Senator Haile several times as her senator and felt he could understand the issues

in the urban area where she lives. But the redistricting moved Ms. Hunt from a

be accelerated and not delayed, the majority simply concludes that, therefore, Ms. Hunt does not have

standing. This is inherently unsound reasoning.

23

The majority does not attempt to distinguish Pereira on injury-in-fact, the issue for which the

case is cited.

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consecutively numbered district (District 18) to a non-consecutively numbered district

(District 17) and shortened the time in which she was represented by Senator Haile.24

And Ms. Hunt’s injury is more pronounced than the plaintiff’s injury in Pereira.

While plaintiff McHugh’s claim in Pereira was based only on the “swapping” of his voting

districts, id. at 241–44, the Tennessee Constitution renders the numbering of Ms. Hunt’s

new senate district unconstitutional. Consequently, Ms. Hunt was “swapped” from a

constitutionally numbered senate district into an unconstitutionally-numbered district. See,

e.g., Common Cause Fla. v. Byrd, 726 F. Supp. 3d 1322, 1358 (N.D. Fla. 2024) (plaintiffs

alleged redistricting resulted in race-based vote dilution) (stating that the plaintiff “credibly

testified that he has lived in Tallahassee since 1982, that he is a registered and active voter,

that he intended to vote in future elections, that he was in the former Benchmark CD-5,

and that he is now in the Enacted CD-2. That is enough to demonstrate his standing.”). Cf.

Gill, 585 U.S. at 69 (“[T]he harm asserted by the plaintiffs is best understood as arising

from a burden on those plaintiffs' own votes. . . . [T]hat burden arises through a voter's

placement in” an unconstitutionally configured district.).

And, like Mr. Wygant, Ms. Hunt provided factual testimony on how the “swap”

from a constitutional senate district to an unconstitutional district detrimentally affected

the representation of her interests and the interests of her county. In her deposition,25 Ms.

Hunt testified that the switch from Senator Haile to Senator Pody “frustrated” her. She

24

Faced with yet another particularized injury, the majority pivots to causation and redressability.

It interposes that there is no causal connection between Ms. Hunt’s dissatisfaction with her current

representative and the non-consecutive numbering of her district. Pshaw. “[T]he causation element is not

onerous” and only requires “a showing that the injury to a plaintiff is fairly traceable to the conduct of the

adverse party.” City of Memphis v. Hargett, 414 S.W.3d 88, 98 (Tenn. 2013) (cleaned up). As the majority

itself points out, “the new map moved Hunt from District 18 . . . to District 17” and “accelerated” her

election date. The fact that Ms. Hunt was more satisfied with her representation by Senator Haile gives

context to why she was harmed by shortening the time Senator Haile represented her and by her placement

into a new district with another senator. As in Pereira, this is representational harm that gives her standing

to challenge her placement into an unconstitutionally configured voting district. 682 F. Supp. 3d at 242.

And we should not lose sight of Ms. Hunt’s primary representational harm. She now has a 3-1

staggered representative system for the county’s four senate districts, instead of the constitutionally required

2-2 staggered representative system. Without question, this injury is caused directly by the violation of

Art. II, § 3 of the Tennessee Constitution and would be redressed by renumbering or redistricting to comply

with the Constitution.

25

The issue of standing came before the panel as part of the parties’ competing motions for

summary judgment. Both parties submitted Ms. Hunt’s deposition to the panel for consideration and relied

on it in their respective motions. In its order addressing both parties’ motions, the three-judge panel decided

to reserve its ruling on the question of Ms. Hunt’s standing to challenge the Senate map.

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explained that Senator Haile, in Sumner County, was part of “the urban core,” while

Senator Pody, in Wilson County, was “very disconnected from what life experiences are

in [her] area.” She said that the change from District 18 to District 17 took away her

community’s voice in the legislature because Senator Pody “is really not connected to the

community in our area,” and doesn’t “represent [her] or [her] community’s interest.” She

felt that, under the current districting plan, “there would be little chance to have somebody

that has that kind of understanding for my area and for my life.”

Ms. Hunt’s trial testimony also focused on how the redistricting plan impacted her

community’s voice in the legislature. She reiterated at trial that Senator Pody was “very

disconnected from the life experiences in [her] area.” She also asserted that the new 3-1

staggered-term structure put Nashville at a disadvantage versus other populous counties by

placing three districts up for election at a point in the election cycle with lower voter

turnout. She described a county issue impacted by the change in her representation,

namely, legislative efforts that she believed targeted Nashville, as “an overreach from the

State into Nashville to even decide how we can govern ourselves.” As an example, she

cited “an effort to . . . take away [her] representative at the local level” by changing the

number of metropolitan council districts in Nashville from 40 to 20. She believed the

Nashville delegation could more effectively resist these efforts if the staggered-term

structure of the delegation remained evenly split as constitutionally mandated.26

This proof in the record on Ms. Hunt’s representational injury echoes Mr. Wygant’s

testimony on his representational injury. They both describe how the redistricting

detrimentally affected the representation of their individual interests and the interests of

their home counties.

In short, even under the majority’s framework, Ms. Hunt demonstrates

particularized injury for purposes of standing. She has sustained injury in the form of a 3-

1 staggered-term representative structure for District 17 and Davidson County that is both

immediate and imminent in the future. Her injury is neither conjectural nor hypothetical;

it is certain to manifest again and again, each time turnover occurs in District 17 and

Davidson County. Ms. Hunt perceived that her former senator could understand her urban

area, and the redistricted map shortened the time Ms. Hunt was represented by her former

senator. It placed her into a different senate district with a new senator whom she perceives

as not connected to the community in her county. And Ms. Hunt has been placed into a

senate district whose misnumbering renders it unconstitutional.

26

Cf. Lockert I, 631 S.W.2d at 709 (citing the legislature’s ability to pass laws with local application

or effect as an “excellent policy reason for the presence of a provision that counties must be represented in

the Senate”).

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By any measure, Ms. Hunt has standing to assert her district-specific claim. As with

the Texas Supreme Court in Abbott, if Ms. Hunt “does not have standing to pursue” an

Article II, Section 3 claim, I “struggle to envision a plaintiff who would.” Abbott, 647

S.W.3d at 693.

I respect and share the majority’s concern that courts be faithful to separation of

powers and refrain from usurping authority that belongs to the legislative and executive

branches. Tenn. Const. art. II, §§ 1–2. It is appropriate for the Court to require plaintiffs

in public rights cases to show injury that is distinct and palpable. Wilmington Tr., 703

S.W.3d at 290 (quoting City of Memphis v. Hargett, 414 S.W.3d 88, 98 (Tenn. 2013)).

But respect for constitutional boundaries does not mean we should recoil from our

responsibilities. Where appropriate, we must not shrink from using the judicial power

accorded to the Court under our Constitution. Tenn. Const. art. VI, § 1. It is essential to

the constitutional order that each branch—and especially the judiciary—fulfill its role in

our tripartite government.

Under our standing jurisprudence in redistricting cases, it should not be easier for

the proverbial camel to go through the eye of a needle than for a voter to challenge the

constitutionality of her own voting district.27 Ms. Hunt has proper standing, and her claim

should be considered on its merits.

S/HOLLY KIRBY, JUSTICE

HOLLY KIRBY, JUSTICE

27

Matthew 19:24 (King James).

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