Jeffery Lichtenstein v. Tre Hargett

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0224p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

JEFFREY LICHTENSTEIN; MEMPHIS AND WEST

│

TENNESSEE AFL-CIO CENTRAL LABOR COUNCIL;

│

TENNESSEE STATE CONFERENCE OF THE NAACP;

│

MEMPHIS A. PHILIP RANDOLPH INSTITUTE; FREE

│

HEARTS, > No. 22-5028

Plaintiffs-Appellants, │

v. │

│

│

TRE HARGETT, in his official capacity as Tennessee │

Secretary of State; MARK GOINS, in his official │

capacity as Coordinator of Elections for the State of │

Tennessee; STEVEN JOHN MULROY, in his official │

capacity as District Attorney General for Shelby │

County, Tennessee, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:20-cv-00736—Eli J. Richardson, District Judge.

Argued: October 27, 2022

Decided and Filed: October 5, 2023

Before: McKEAGUE, WHITE, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Danielle Lang, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellants.

Clark Lassiter Hildabrand, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,

Nashville, Tennessee, for Appellees. ON BRIEF: Danielle Lang, Molly E. Danahy, Jonathan,

Diaz, CAMPAIGN LEGAL CENTER, Washington, D.C., Jon M. Greenbaum, Ezra Rosenberg,

Pooja Chaudhuri, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW,

Washington, D.C., William L. Harbison, Lisa Katherine Helton, Christopher C. Sabis,

SHERRARD ROE VOIGT & HARBISON PLC, Nashville, Tennessee, for Appellants. Janet M.

Kleinfelter, Alexander S. Rieger, Matthew D. Cloutier, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. Kristin C. Cope, O’MELVENY

No. 22-5028 Lichtenstein v. Hargett Page 2

& MYERS, LLP, Dallas, Texas, Charlotte Davis, PUBLIC INTEREST LEGAL

FOUNDATION, Indianapolis, Indiana, for Amici Curiae.

MURPHY, J., delivered the opinion of the court in which McKEAGUE, J., joined.

WHITE, J. (pp. 37–52), delivered a separate dissenting opinion.

_________________

OPINION

_________________

MURPHY, Circuit Judge. Since 1979, Tennessee has made it a crime for anyone other

than election officials to distribute the State’s official form for applying to vote absentee. During

much of this time, Tennessee kept close guard of this form to deter fraud. But election officials

now make the form widely available online so that eligible voters may more easily apply.

According to the Plaintiffs, this change has rendered the ban on distributing the application form

“outdated.” The Plaintiffs want to hand out this form while they encourage absentee voting at

their get-out-the-vote drives. They allege that the First Amendment gives them the right to do

so. Because they seek to distribute the form while expressing a political message, they argue, we

must subject the ban to strict scrutiny. At the least, they say, we must evaluate the ban using the

so-called “Anderson-Burdick” balancing test that applies to some election challenges.

We disagree on both fronts. Tennessee’s ban prohibits an act: distributing a government

form. This act qualifies as conduct, not speech. Admittedly, the First Amendment provides

some protection to “expressive conduct.” But strict scrutiny does not apply to Tennessee’s ban

because it neutrally applies no matter the message that a person seeks to convey and because it

burdens nobody’s ability to engage in actual speech. We have also never extended Anderson-

Burdick’s balancing test to this sort of speech claim. At most, the Supreme Court’s lenient First

Amendment test for neutral laws that regulate conduct applies here. And because the ban

survives this nondemanding test, we affirm the district court’s dismissal of the Plaintiffs’

complaint.

No. 22-5028 Lichtenstein v. Hargett Page 3

I.

A.

Tennessee permits all voters to vote early in person up to 20 days before most elections.

Tenn. Code Ann. § 2-6-102(a)(1). But only a subset of voters may vote absentee through the

mail. Id. § 2-6-201. The list of eligible absentee voters includes students, voters over 60, the

hospitalized or disabled, and voters who will remain away from their home county during

the voting period. Id. § 2-6-201(1)–(3)(A), (5). To vote absentee, a voter must “request

an absentee ballot” from a county election commission within a certain time before the election.

Id. § 2-6-202(a)(1).

Over the years, Tennessee has made it easier for eligible voters to vote absentee.

Historically, if a voter sent a written request for an absentee ballot to a county election

commission, the commission would treat this writing “as a request for an application for

absentee ballot.” 1979 Tenn. Pub. Acts 687, 690. A state official created the official application

“forms.” Id. To receive an absentee ballot, the voter would need to fill out this second

document—the official application. Id. at 691. Tennessee limited access to this form. An

election commission generally could send only one form to any voter. Id. at 690–91. The State

also made it “a felony for any private person to supply an application for absentee ballot to any

person by any means whatsoever.” Id. at 691.

Tennessee simplified the absentee-voting process in 1994. 1994 Tenn. Pub. Acts 633,

637–39 (creating Tenn. Code Ann. § 2-6-202). Today, a voter may submit both a written request

for an application and the official application to an election commission “by mail, facsimile

transmission or e-mail with an attached document that includes a scanned signature.” Tenn.

Code Ann. § 2-6-202(a)(3). And if a voter’s mere “request” for an application contains several

items—including the voter’s identifying information and the reason the voter wants to vote

absentee—that “request serves as an application” itself. Id. § 2-6-202(a)(3)(A)–(G). This

change eliminated the need for every voter to follow a two-step process by submitting a

“request” for an application to vote absentee followed by the official “application.” If the voter’s

request includes all required information, an election commission will now simply mail the voter

No. 22-5028 Lichtenstein v. Hargett Page 4

the absentee ballot. Id. § 2-6-202(b). If not, the commission will send the voter the official

application form. Id.

A state official still must provide each county election commission with the

official “forms for applications for ballots or approve the usage of a county’s forms.”

Id. § 2-6-202(c)(1). But Tennessee no longer keeps close guard of these government forms.

State and local officials now post them “online,” so any person may freely “download and print”

them. Compl., R.1, PageID 7. Tennessee also allows a voter to ask someone else to fill out a

request for an application form or the form itself as long as the voter signs these documents.

Tenn. Code Ann. § 2-6-203.

At the same time, a county election commission still may not provide more than one

official absentee-ballot application form to a voter who requests one unless the voter states that a

prior form has been “spoiled” or has not been received. Id. § 2-6-202(c)(2). And Tennessee law

still prohibits everyone else from distributing these official forms: “A person who is not an

employee of an election commission commits a Class E felony if such person gives an

application for an absentee ballot to any person.” Id. § 2-6-202(c)(3).

Soon after the 1994 changes, an election official asked the Tennessee Attorney General

for an opinion about the scope of this ban on distributing application forms. Tenn. Op. Att’y

Gen. No. 95-003, 1995 WL 14087, at *1 (1995). A debate had arisen over whether the ban

covered the distribution of privately made (and unofficial) requests for applications if those

template documents included blank sections for the required information that would allow

them to serve as unofficial applications under the recent amendments. See Tenn. Code Ann.

§ 2-6-202(a)(3). The Attorney General narrowly interpreted the ban in § 2-6-202(c)(3) to bar

only the distribution of the official forms—not these “request” documents. 1995 WL 14087, at

*3–4.

This narrow view led “various groups” to mass produce standard “request” documents

that contained all required information to serve as applications and provide these “requests” to

voters. Memphis A. Philip Randolph Inst. v. Hargett, 478 F. Supp. 3d 699, 704 (M.D. Tenn.

2020). That development concerned election administrators. Id. at 704–05. Some voters

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(including the elderly) who received these unofficial “request” documents thought they needed to

fill them out even to vote at the polls. Id. at 705. But once they completed the request, these

voters could not vote in person. Id. In 2002, Tennessee responded to these voter-confusion

issues. Id. at 704–05. It added a separate ban that barred parties from distributing request forms

for absentee-ballot applications: “A person who is not an employee of an election commission

commits a Class A misdemeanor if such person gives an unsolicited request for application for

absentee ballot to any person.” 2002 Tenn. Pub. Acts ch. 698, at 1 (adding Tenn. Code Ann.

§ 2-6-202(c)(4)). Unlike the ban on the distribution of the official application forms in

§ 2-6-202(c)(3), this ban more narrowly applies to the unsolicited distribution of privately

created requests.

B.

Today’s suit involves only the ban on the distribution of the official application forms in

§ 2-6-202(c)(3) (what we will call “paragraph (c)(3)”). The five organizational Plaintiffs—the

Memphis and West Tennessee AFL-CIO Central Labor Council (Labor Council), the Tennessee

State Conference of the NAACP, the Equity Alliance, the Memphis A. Philip Randolph Institute

(APRI), and Free Hearts—engage in voter-outreach efforts as part of their diverse missions.

Compl., R.1, PageID 3–6. For instance, the Labor Council and the NAACP regularly

educate their thousands of members about the voting process and encourage them to vote. Id.,

PageID 3–4. Similarly, APRI “sponsors voter education and Get-Out-The-Vote programs in the

community.” Id., PageID 5. The individual Plaintiff, Jeffrey Lichtenstein, likewise undertakes

“voter advocacy and engagement efforts” in his role as the Labor Council’s Executive Secretary.

Id., PageID 2.

According to the Plaintiffs, their voter-outreach efforts sit “at the core of [their] political

speech and advocacy activities.” Id., PageID 8. As a part of these efforts, the Plaintiffs

encourage eligible Tennessee voters to vote absentee through the mail. Id., PageID 9. They

regularly explain the “benefits of voting by mail” and the “submission deadlines and

requirements” for absentee voting to their own members and to the public. Id.

No. 22-5028 Lichtenstein v. Hargett Page 6

The Plaintiffs seek to distribute Tennessee’s absentee-ballot application form during

these voter-outreach efforts. Id., PageID 2–6. They more often convince voters to cast a ballot

when they can provide the voters with all the “requisite forms they might need[.]” Id., PageID 9.

In other words, voters who may vote absentee will more likely apply if the Plaintiffs can hand

them an application form than if the Plaintiffs must send them “to a website they may not be able

to access, or to a form they may not be able to print.” Id., PageID 10. In fact, some voters have

asked the Plaintiffs for the forms because they “lack reliable access to a computer, a printer, or

the Internet.” Id. The Plaintiffs allege that unless they can hand voters these official forms,

some will choose not to apply for an absentee ballot or cast a ballot at all. Id. They

thus describe paragraph (c)(3)’s ban as an “extraordinarily burdensome” limit on their advocacy.

Id., PageID 8.

To allow them to distribute the forms ahead of the 2020 election, the Plaintiffs brought

two suits. In an initial suit, some Plaintiffs challenged the separate ban in § 2-6-202(c)(4) on

distributing unsolicited requests for applications. The district court denied a preliminary

injunction against this separate ban because paragraph (c)(3) (not (c)(4)) was the one that

prevented them from engaging in their desired conduct of distributing the official forms.

Memphis A. Philip Randolph Inst., 478 F. Supp. 3d at 707–10. The Plaintiffs responded by

quickly filing this challenge to paragraph (c)(3) against three officials (collectively, “the State”).

See Lichtenstein v. Hargett, 489 F. Supp. 3d 742, 748–50 (M.D. Tenn. 2020). Their complaint

asserted two claims under the First Amendment. They first alleged that paragraph (c)(3)’s ban

violated their freedom of speech by limiting their “core political speech and expressive

conduct[.]” Compl., R.1, PageID 11–12. They next alleged that it violated their freedom of

association by restricting their members’ advocacy toward voters. Id., PageID 12.

The district court dismissed the complaint. Lichtenstein v. Hargett, __ F. Supp. 3d __,

2021 WL 5826246, at *6–8 (M.D. Tenn. Dec. 7, 2021). To do so, it incorporated its analysis

from an earlier opinion denying a preliminary injunction. See id. at *6–7 (citing Lichtenstein,

489 F. Supp. 3d 742). The court initially held that paragraph (c)(3)’s ban did not cover

“expressive” conduct protected by the First Amendment. See id. at *6. Even if this ban did bar

expressive conduct, the court next held that the ban would not trigger strict scrutiny because it

No. 22-5028 Lichtenstein v. Hargett Page 7

did not limit “‘core’ political speech[.]” Id. Instead, the court applied a “rational-basis ‘plus’”

test using the “Anderson-Burdick” framework from the election context. Id. at *7. The court

lastly found that the law survived this test given the State’s interests in preventing voter

confusion. See id.

The Plaintiffs appealed. They have renewed their freedom-of-speech and freedom-of-

association claims. We will consider each claim in turn, reviewing the district court’s decision to

dismiss their complaint de novo. See Daunt v. Benson, 999 F.3d 299, 307 (6th Cir. 2021).

II. Does Tennessee’s Ban Infringe the Plaintiffs’ Freedom of Speech?

As incorporated against the states by the Fourteenth Amendment, the First Amendment

provides: “Congress shall make no law . . . abridging the freedom of speech, or of the press[.]”

U.S. Const. amend. I; see Stromberg v. California, 283 U.S. 359, 368 (1931). This text poses an

obvious obstacle for the Plaintiffs. It bars a state from “abridging” oral expression (the freedom

of “speech”) or written expression (the freedom of the “press”); it does not bar the state from

restricting conduct. See Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47,

62 (2006); 2 Noah Webster, An American Dictionary of the English Language (1828); 2 Samuel

Johnson, A Dictionary of the English Language (4th ed. 1773). And the Plaintiffs do not dispute

that a person “seek[s] to engage in” “conduct” (not speech) when the person hands an official

form to another person. Appellants’ Br. 14.

But this fact does not end the inquiry. Even before the founding, Americans expressed

political messages through symbolic conduct—whether by burning the king in effigy or by

raising liberty poles. See Eugene Volokh, Symbolic Expression and the Original Meaning of the

First Amendment, 97 Geo. L.J. 1057, 1061 & n.20 (2009). The Plaintiffs likewise argue that

they want to distribute the absentee-ballot application in coordination with their message to vote

absentee. So they allege that they seek to engage in “expressive conduct.” Appellants’ Br. 14.

And because the message that they want to convey through this conduct qualifies as “core

political speech,” they argue, we must review paragraph (c)(3)’s ban using the “exacting” (that

is, strict) scrutiny from Meyer v. Grant, 486 U.S. 414, 420 (1988). Alternatively, they argue that

we must evaluate it under the Anderson-Burdick balancing test that applies to election laws.

No. 22-5028 Lichtenstein v. Hargett Page 8

These arguments misunderstand the Supreme Court’s First Amendment framework for

expressive conduct. We will explain why in three parts. First, even if the First Amendment

provides some protection for the Plaintiffs’ proposed actions, it does not require us to review the

challenged ban using the strict scrutiny that they seek. See Part II.A. Second, Plaintiffs’ speech

claim also does not trigger the Anderson-Burdick balancing test because we have never applied

this test to their type of speech claim. See Part II.B. Third, at most, the Plaintiffs’ claim triggers

the expressive-conduct test originating from United States v. O’Brien, 391 U.S. 367, 377 (1968).

And for the reasons provided by the district court, the law passes muster under that “relatively

lenient” test. Texas v. Johnson, 491 U.S. 397, 407 (1989). See Part II.C.

A. Does Tennessee’s Ban Trigger Strict Scrutiny?

1. The First Amendment’s protections reach their “zenith” for political speech. Meyer,

486 U.S. at 425. And paragraph (c)(3) bans conduct that the Plaintiffs wish to undertake to

express a political message. Connecting these two dots, the Plaintiffs argue that we must

evaluate this ban using Meyer’s “exacting scrutiny.” Id. at 420. But their logical chain confuses

the deferential framework that governs regulations targeting conduct (even conduct meant to

convey a political message) for the demanding framework that governs regulations targeting

expression. The demanding framework governing political expression does not apply here

because the act of distributing an official form qualifies as conduct rather than “core political

speech,” id., and because paragraph (c)(3) does not target or impose costs on the Plaintiffs’

actual political speech.

Laws Targeting Conduct. The Supreme Court has never applied exacting free-speech

scrutiny to laws that bar conduct based on the harm that the conduct causes apart from the

message it conveys. See R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992). That is true even if

the ban on conduct imposes “incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S.

552, 567 (2011); Expressions Hair Design v. Schneiderman, 581 U.S. 37, 47 (2017). And it is

true even if the person engaging in the conduct “intends thereby to express an idea.” O’Brien,

391 U.S. at 376.

No. 22-5028 Lichtenstein v. Hargett Page 9

Title VII offers a classic example of such a conduct ban that incidentally burdens speech.

The statute bars employers from discriminating on the basis of race in employment decisions.

42 U.S.C. § 2000e–2(a). By doing so, Title VII has the practical effect of stopping a store owner

from posting a “White Applicants Only” sign in the storefront because that speech would provide

smoking-gun evidence of the owner’s illegal intent. Rumsfeld, 547 U.S. at 62. But Title VII

does not trigger rigorous free-speech scrutiny simply because it affects speech. Why? Congress

can justify Title VII’s ban on “bias-inspired” employment decisions by the “harm” that these

decisions cause employees “over and above” a disapproval of the message that the decisions

send. Wisconsin v. Mitchell, 508 U.S. 476, 487–88 (1993); see Hishon v. King & Spalding,

467 U.S. 69, 78 (1984). Employees who lose out on a job suffer tangible injuries from an

employer’s refusal to hire them distinct from the employer’s expression of a discriminatory point

of view.

Many cases follow the same path. The Court has not applied rigorous scrutiny to a

conduct ban on public nudity even as applied to those who sought to express an “erotic message”

through “nude dancing.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569–71 (1991) (plurality

opinion); see City of Erie v. Pap’s A.M., 529 U.S. 277, 289–96 (2000) (plurality opinion). It has

not applied rigorous scrutiny to a conduct ban on sleeping overnight in national parks even as

applied to those who sought to sleep in a park to highlight “the plight of the homeless.” Clark

v. Cmty. for Creative Non-Violence, 468 U.S. 288, 289, 293–99 (1984). And it has not applied

rigorous scrutiny to a conduct ban on destroying draft cards even as applied to those who burned

the cards to express “antiwar beliefs[.]” O’Brien, 391 U.S. at 369–70, 376–77.

If rigorous free-speech scrutiny does not apply, what does? As long as a ban on conduct

is “unrelated to the suppression of free expression,” the ban will trigger, at most, the “relatively

lenient” test that O’Brien adopted to uphold the law against destroying draft cards. Johnson, 491

U.S. at 407 (citation omitted). This test does not protect just any conduct; it protects only

“inherently expressive” conduct. Rumsfeld, 547 U.S. at 66. And it requires that the government

merely identify a “substantial” “interest” that would not be furthered as “effectively” without the

ban. Id. at 67 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).

No. 22-5028 Lichtenstein v. Hargett Page 10

Laws Targeting Speech. The Court, by contrast, employs a far different test to evaluate

laws that target expression. Some laws do so directly. Think of an “outright ban” on political

speech. Citizens United v. FEC, 558 U.S. 310, 337 (2010). The Court has applied strict scrutiny

to this type of law that prohibits certain disfavored messages. See id. at 340. The government

must show both that it has a “compelling interest” for the ban and that the ban is the “least

restrictive means” to achieve this interest. McCullen v. Coakley, 573 U.S. 464, 478 (2014).

But many laws burden expression only indirectly. In two circumstances, the Court has

applied strict scrutiny to laws that targeted expression by regulating conduct. Sometimes, the

government might bar conduct because of “the ideas it expresses” rather than the harms it causes.

R.A.V., 505 U.S. at 385. The Supreme Court’s famous flag-burning decision exemplifies this

type of speech-targeting law. See Johnson, 491 U.S. at 406–07. The Texas law there did not ban

all flag burning because of the risks of “outdoor fires[.]” R.A.V., 505 U.S. at 385. It banned

only flag burning done to convey a message “dishonoring” the flag. Id. In particular, the law

applied to flag burning that would seriously offend its viewers. See Johnson, 491 U.S. at

400 n.1, 411–12. The Court applied strict scrutiny because a violation “depended” not on the

conduct-related risks of burning things but on the “communicative impact” of the action. Id. at

411.

Other times, the government might restrict the “inputs” that speakers use to express a

message. If, for example, the government banned the sale of ink for the use in political

pamphlets, it ostensibly would be regulating conduct—the sale of a commodity. See Sorrell, 564

U.S. at 571. But the Court would rigorously review this law because it targets certain speakers

by burdening the written words for which they will use the ink. See id.

The case on which the Plaintiffs rely—Meyer—addressed a law that burdened another

speech “input”: money. Beginning with Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the

Court has repeatedly addressed whether bans on giving money to create speech trigger

heightened scrutiny. Buckley considered, among other things, limits on the amounts that people

could spend on speech promoting political candidates. Id. at 12–13. The Court subjected these

limits to “the exacting scrutiny applicable to limitations on core First Amendment rights of

political expression.” Id. at 44–45. It explained that the limits restricted the speech that the

No. 22-5028 Lichtenstein v. Hargett Page 11

money paid for. Id. at 16. And this speech did not lose its protection just because it depended on

money for its creation. Id.

Meyer fits Buckley’s mold. It considered a Colorado statute governing “initiative”

petitions that sought to give voters the chance to vote on new laws or constitutional amendments.

486 U.S. at 415–16. Under Colorado’s process, petitioners had to collect a certain number of

signatures before they could place a proposed law or amendment on the ballot. Id. at 416. But

the challenged statute barred petitioners from paying circulators to gather these signatures. Id. at

416–17 & n.1. Citing Buckley, the Court subjected this payment limit to what it called “exacting

scrutiny” because it restricted “political expression.” Id. at 420. The Court reasoned that the

statute targeted expression (not just the conduct of paying circulators) because the circulators

needed to speak to voters to convince them to sign the petition. Id. at 421. They engaged in

“both the expression of a desire for political change and a discussion of the merits of the

proposed change.” Id. And the law’s ban on paying for this “political speech” had “the

inevitable effect of reducing the total quantum of” it. Id. at 422–23. If petitioners could not pay

circulators, fewer “voices” could convey their message. See id. It was these “voices”—the

“speech through petition circulators”—that garnered the First Amendment’s highest protections.

Id. at 422, 424.

These types of burdens on speech “inputs” can take other forms. Such burdens can

include, for example, restrictions on who may convey a message. After Meyer, therefore, the

Court found unconstitutional a Colorado ban on the use of petition circulators who were not

registered voters. See Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 192–97 (1999).

Because this ban reduced the number of people who could talk with potential petition signers, it

too generated “a speech diminution of the very kind produced by the ban on paid circulators at

issue in Meyer.” Id. at 194.

In sum, Meyer applied heightened scrutiny because the Colorado statute targeted speech

by restricting the conduct that created the speech. And while Meyer used the phrase “exacting

scrutiny” to describe the governing test, id. at 420, the Court applied standards that today go by

“strict scrutiny.” It engaged in a least-restrictive-means analysis, finding that the ban was not

“necessary” because Colorado could serve its interests by means that limited less speech. Id. at

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426–27; cf. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383 (2021) (plurality

opinion).

2. How does this divide apply to paragraph (c)(3)’s ban on “giv[ing] an application for

an absentee ballot to any person”? For two reasons, strict scrutiny does not apply to this conduct

ban. The ban does not limit a speech “input” (like the laws in Buckley, Meyer, and American

Constitutional Law Foundation). And it does not target the conduct because of the “idea” that

the Plaintiffs want to express (like the law in Johnson).

Reason One: Paragraph (c)(3) does not regulate something that the Plaintiffs use to speak

and thereby target or burden that speech. Unlike the ink that a party uses to create written

speech, see Sorrell, 564 U.S. at 571, or the money or people that a party uses to create oral

speech, see Am. Const. L. Found., 525 U.S. at 192–97; Meyer, 486 U.S. at 422–23, the

distribution of official absentee-ballot application forms is not a speech “input.” To be sure, the

Plaintiffs’ underlying get-out-the-vote activities—that is, their speech to convince voters to vote

absentee—qualifies as “core political speech” entitled to rigorous First Amendment protection.

Meyer, 486 U.S. at 422. But nothing in paragraph (c)(3) in any way restricts the Plaintiffs’

actual oral or written speech about the “benefits” of absentee voting. Compl., R.1, PageID 9.

Nor does this statute make the creation of this speech “more costly” and thereby reduce its

volume under the basic laws of supply and demand. Citizens for Tax Reform v. Deters, 518 F.3d

375, 388 (6th Cir. 2008). In fact, unlike the ban on paying petition circulators in Meyer, the

Plaintiffs’ complaint does not even allege that paragraph (c)(3) will have any “effect” on the

“quantum” of their oral or written speech encouraging absentee voting. 486 U.S. at 423.

Instead, the Plaintiffs argue (and our colleague’s thoughtful dissent agrees) that the ban

on distributing the government form in this case triggers strict scrutiny because that distribution

is “intertwine[d]” with or “involves” the actual political speech at their get-out-the-vote drives.

Appellants’ Br. 30; Dissenting Op., at 47–48. We do not read Meyer this broadly. There, the

Court held that the ban on paying petition circulators triggered strict scrutiny not because the

payment prohibition was intertwined with speech but because the ban would have “the inevitable

effect of reducing the total quantum of” it. Meyer, 486 U.S. at 423 (emphasis added). Why?

Because a petition circulator’s efforts to convince the public to sign initiative petitions qualified

No. 22-5028 Lichtenstein v. Hargett Page 13

as “both the expression of a desire for political change and a discussion of the merits of the

proposed change.” Id. at 421. So the ban in Meyer limited the “direct one-on-one

communication” that all agree is pure political expression. Id. at 424. Or, as a later case put it,

the ban caused a “diminution” of this “speech” and so “impose[d] a burden” on it. Am. Const. L.

Found., 525 U.S. at 194–95 (quoting Meyer, 486 U.S. at 428). We see nothing in Meyer that

adopts the Plaintiffs’ broader reading, which asks whether the regulated conduct is “intertwined”

with actual speech (rather than whether it burdens that speech). And we doubt the Supreme

Court would accept this amorphous free-speech test. How much “intertwinedness” is necessary?

How is it measured?

The Plaintiffs’ test would also call into doubt many of the Supreme Court’s expressive-

conduct cases because conduct often accompanies speech. For example, David Paul O’Brien’s

draft-card burning likewise could be said to “intertwine” with his speech conveying antiwar

views. See O’Brien, 391 U.S. at 370. But the Court refused to transform this conduct into

speech subject to strict scrutiny just because O’Brien conveyed a political message while burning

the draft card. Id. at 376–77. Why was his conduct not intertwined enough with his speech to

trigger strict scrutiny under the Plaintiffs’ view? See also Clark, 468 U.S. at 296.

To make their case fall within Meyer’s narrower holding, then, the Plaintiffs needed to

show that paragraph (c)(3) burdened their actual oral or written speech by restricting conduct that

helps produce it. If, for example, Tennessee barred the Plaintiffs from paying their employees to

promote absentee voting, they may have a strong case for strict scrutiny. Cf. Emily’s List

v. FEC, 581 F.3d 1, 8–11 (D.C. Cir. 2009). But again, the Plaintiffs have not alleged that the ban

on distributing forms in any way restricts their ability to create or convey speech.

That said, the Plaintiffs do allege that paragraph (c)(3)’s ban on conduct makes it harder

to achieve their bottom-line goal of increasing absentee voting. This outcome-focused effect,

however, qualifies as the type of “incidental burden” on speech that does not trigger heightened

scrutiny and instead triggers the more-lenient test for expressive conduct. Sorrell, 564 U.S. at

567. The Supreme Court’s precedent confirms this point. The ban on destroying draft cards

might have reduced O’Brien’s ability to spotlight his “antiwar” views and made it harder to get

those views enacted as our foreign policy. O’Brien, 391 U.S. at 370. Likewise, the ban on

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sleeping in parks might have made it tougher for the Community for Creative Non-Violence to

convince others about “the plight of the poor and homeless” and so reduced its ability to enact

laws consistent with its views. Clark, 468 U.S. at 296. But the Court did not apply strict

scrutiny in either case. See id. at 293–99; O’Brien, 391 U.S. at 376–82; see also FTC v. Superior

Ct. Trial Lawyers Ass’n, 493 U.S. 411, 429–32 (1990). Yet the plaintiffs in both cases

presumably engaged in their chosen course of conduct because, like the Plaintiffs here, they

thought it would be a “more effective way to encourage” their goals. Compl., R.1, PageID 9–10.

Indeed, the Plaintiffs’ argument—that a ban on conduct triggers strict scrutiny if the ban

makes it harder for an entity to achieve the policies it promotes—has no stopping point.

Ordinary speed limits might increase the time it takes speakers to travel in between venues and

so reduce their speech’s reach and its chances of achieving a desired result. Does that outcome

subject speed limits to strict speech scrutiny too? Of course not. The Plaintiffs’ theory that

paragraph (c)(3)’s ban makes it more difficult to increase absentee voting likewise provides no

basis to subject the ban to strict scrutiny. See Voting for Am., Inc. v. Steen, 732 F.3d 382, 391

n.5 (5th Cir. 2013); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099–1101 (10th

Cir. 2006) (en banc).

Reason Two: Paragraph (c)(3)’s ban does not target the distribution of application forms

because of “the ideas” that the Plaintiffs “express[]” (instead of “the action [that] it entails”).

R.A.V., 505 U.S. at 385. This fact distinguishes the law in Johnson, which targeted expression

by barring only flag burning designed to offend others. See 491 U.S. at 411–12. Paragraph

(c)(3)’s ban, by comparison, does not turn on the message conveyed when distributing a form. It

bars this distribution when done for any reason. So it undoubtedly bans the distribution by those

who seek to convince recipients to vote absentee. But it equally bans the distribution by those

who, for example, seek to convince recipients that Tennessee makes it too easy to vote absentee

and so increases the risks of fraud. And it bans the distribution by those who seek to wrongly

convince voters who are ineligible to vote absentee that they may do so in an effort to deprive

them of the vote. In short, a violation does not depend on the “message expressed” through a

specific individual’s conduct. Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015). The

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conduct ban is thus content neutral. See id.; cf. Nev. Comm’n on Ethics v. Carrigan, 564 U.S.

117, 125 (2011).

The Plaintiffs counter that the Tennessee law flunks the content-neutrality test because it

bars the distribution of application forms but does not bar, say, the distribution of

voter-registration forms. Reply Br. 14 n.6. But the law in O’Brien likewise did not prohibit

people from tearing up their tax returns. See 391 U.S. at 375. Yet this differential treatment did

not render the law content based. See id. at 376–82. That is because the First Amendment’s

content-neutrality test asks whether a law treats different messages differently, not whether it

treats different conduct differently. See Reed, 576 U.S. at 163. The Court evaluates conduct-

based differences like the one that the Plaintiffs propose under the Equal Protection Clause, not

the Free Speech Clause. See Armour v. City of Indianapolis, 566 U.S. 673, 680–81 (2012); City

of New Orleans v. Dukes, 427 U.S. 297, 303–04 (1976) (per curiam). But the Plaintiffs do not

assert an equal-protection claim.

The Plaintiffs also point to the Supreme Court’s recognition that a state may not avoid

strict scrutiny for a speech restriction on the ground that it leaves open other ways to convey a

message. See Cal. Democratic Party v. Jones, 530 U.S. 567, 581 (2000); Meyer, 486 U.S. at

424. The government thus cannot ban a book on the ground that it permits the author to give

speeches about the book. But this rule applies only to laws that target speech. And the State

does not defend paragraph (c)(3) on the ground that it limits some speech but leaves open other

expressive avenues. The State defends paragraph (c)(3) on the ground that the law does not

target speech at all.

That fact leads to a final point. Perhaps we need not ask whether the ban on distributing

application forms burdens the Plaintiffs’ other speech at their get-out-the-vote drives. One might

analogize the form’s distribution to that of a political pamphlet. And the Court has long treated

the latter distribution (or more precisely, the distribution of a pamphlet’s expressive contents) as

speech itself. See McCullen, 573 U.S. at 488–89; McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 341–45 (1995). Just as a person can express a message through oral communication in a

“one-on-one” interaction, Meyer, 486 U.S. at 424, so too the person can express that message by

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handing out a written communication. Unlike our colleague in dissent, though, the Plaintiffs did

not make this analogy.

Nor is it apparent to us that this unbriefed analogy to political pamphlets withstands

scrutiny. For one thing, the application is a form that the State creates. Tenn. Code Ann.

§ 2-6-202(c)(1). It is safe to say that this government form does not resemble the ideological

pamphlets that fueled the American Revolution. See Bernard Bailyn, The Ideological Origins of

the American Revolution 1–21 (50th Anniversary ed. 2017). If the form’s contents were speech,

the speech might well be the government’s. Cf. Shurtleff v. City of Boston, 142 S. Ct. 1583,

1589–90 (2022). For another thing, just as the challenged Tennessee law does not burden oral

speech, it also does not burden written speech. Paragraph (c)(3) freely permits the Plaintiffs to

distribute private pamphlets to express any message they desire about “the existence of absentee

voting, the steps to apply, who is eligible to vote this way, and the deadline for submission.”

Dissenting Op., at 45. So why are the Plaintiffs not content to circulate their own private

“publication” “of information and opinion” about absentee voting? Lovell v. City of Griffin,

303 U.S. 444, 452 (1938). They wish to distribute the application for a separate functional (not

expressive) reason: by giving voters the “requisite forms” needed to apply, the Plaintiffs make it

easier for these voters to complete the application process. Compl., R.1, PageID 9. If they have

a “speech” right to engage in that activity, do they also have a speech right to hand out return

envelopes or postage stamps (an activity that can also make it easier for potential voters to

apply)? A dubious claim at best. In any event, the Plaintiffs have argued that the banned

conduct is entitled to rigorous protection only because it is intertwined with speech (under

Meyer) or because the relevant ban is content based (under Johnson). They are mistaken on both

points.

B. Does Tennessee’s Ban Trigger Anderson-Burdick “Balancing”?

Just because paragraph (c)(3)’s ban does not trigger strict scrutiny does not mean it falls

outside the First Amendment altogether. The Plaintiffs at least ask us to evaluate their claim

under the Anderson-Burdick balancing test used in the election context. See Anderson

v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). The test requires

courts to balance an election law’s burdens on voters’ rights against the state’s interests in the

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law as a threshold inquiry to determine the level of scrutiny that courts should apply to the law.

See Ohio Democratic Party v. Husted, 834 F.3d 620, 626–27 (6th Cir. 2016). Laws that impose

minimal burdens need only satisfy something approaching rational-basis review; laws that

impose severe burdens must satisfy something approaching strict scrutiny; and laws in between

must satisfy a level of scrutiny commensurate with their burdens. See id. But we refuse to

expand this test to cover a pure speech claim like the one that the Plaintiffs assert here.

1. The Anderson-Burdick balancing test has historically applied to claims that an election

law interferes with the right of voters to vote or political parties to associate with voters—not the

right of speakers to speak. In particular, we and the Supreme Court have applied this test to

three types of claims: ballot-access claims, political-party associational claims, and voting-rights

claims.

First, start with the cases from which this approach takes its name: Anderson and

Burdick. Both cases addressed ballot-access challenges to laws that limited the candidates who

could appear on a ballot. The Court explained that these laws implicate two “rights of voters”:

the implied right to vote (under the substantive part of the Fourteenth Amendment’s Due Process

Clause) and the implied right to associate with a candidate by voting for the candidate (under the

First Amendment). Anderson, 460 U.S. at 786–88. To decide whether a ballot-access law

violates these rights, the Court held, the judiciary must identify the “character and magnitude” of

the harm to the rights and compare that harm to the “precise interests” that the state used to

justify the law. Id. at 789. Applying this test, Anderson found unconstitutional an Ohio law

that imposed a uniquely early deadline for independent candidates to apply to make the ballot.

460 U.S. at 790–806. But Burdick upheld a Hawaii law that banned voters from writing in

candidates. 504 U.S. at 434–41.

Our cases have often applied Anderson-Burdick’s test to ballot-access challenges. The

following cases have used this test to evaluate a claim that a law limiting a candidate’s ability to

get on the ballot violated the rights of voters to vote and the rights of candidates and voters to

associate: Graveline v. Benson, 992 F.3d 524, 534–46 (6th Cir. 2021); Kishore v. Whitmer,

972 F.3d 745, 749–51 (6th Cir. 2020); Hawkins v. DeWine, 968 F.3d 603, 605–07 (6th Cir.

2020); Esshaki v. Whitmer, 813 F. App’x 170, 171–72 (6th Cir. 2020) (order); Libertarian Party

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of Ky. v. Grimes, 835 F.3d 570, 574–78 (6th Cir. 2016); Libertarian Party of Ohio v. Husted,

831 F.3d 382, 399–405 (6th Cir. 2016); Green Party of Tenn. v. Hargett, 791 F.3d 684, 692–95

(6th Cir. 2015); Green Party of Tenn. v. Hargett, 767 F.3d 533, 545–49 (6th Cir. 2014); Jolivette

v. Husted, 694 F.3d 760, 766–77 (6th Cir. 2012); Morrison v. Colley, 467 F.3d 503, 507–08 (6th

Cir. 2006); Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 585–95 (6th Cir. 2006);

Lawrence v. Blackwell, 430 F.3d 368, 372–75 (6th Cir. 2005); Gable v. Patton, 142 F.3d 940,

946–47 (6th Cir. 1998); Miller v. Lorain Cnty. Bd. of Elections, 141 F.3d 252, 256–59 (6th Cir.

1998); Corrigan v. City of Newaygo, 55 F.3d 1211, 1217–18 (6th Cir. 1995).

We also recently expanded the ballot-access claims that fall within this group of cases.

Adding to a circuit conflict, our court now uses Anderson-Burdick’s test to evaluate challenges

to the rules for getting initiatives—not just candidates—on the ballot. See Beiersdorfer

v. LaRose, 2021 WL 3702211, at *9–12 (6th Cir. Aug. 20, 2021); Thompson v. DeWine,

976 F.3d 610, 615–19 (6th Cir. 2020) (per curiam); SawariMedia, LLC v. Whitmer, 963 F.3d

595, 596–98 (6th Cir. 2020) (order); Schmitt v. LaRose, 933 F.3d 628, 639–42 (6th Cir. 2019);

Comm. to Impose Term Limits on Ohio Sup. Ct. v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir.

2018).

Second, the Supreme Court has applied Anderson-Burdick’s test to claims that election

laws violate the rights of political parties to associate with candidates (or vice versa) under the

First Amendment. The Court has used this test to resolve challenges to the information that a

state puts on its ballot and to the way the state conducts primaries. So the Court relied on

Anderson-Burdick to decide whether a state violated a political party’s associational rights by

allowing candidates to identify the party as their preferred choice on the ballot. See Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 451–58 (2008). And it relied on

Anderson-Burdick to decide whether a state violated a party’s rights by barring “fusion”

candidates who sought to identify themselves as the nominee of two parties on the ballot. See

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997). Similarly, the Court has

used Anderson-Burdick to decide whether a state infringed a party’s rights by regulating the

voters who could vote in its primary. Compare Clingman v. Beaver, 544 U.S. 581, 586–97

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(2005), with Cal. Democratic Party, 530 U.S. at 572–86; Tashjian v. Republican Party of Conn.,

479 U.S. 208, 213–29 (1986).

Some of our cases fit within this group. Like Timmons, we have invoked the Anderson-

Burdick test to evaluate laws limiting a political party’s ability to identify its association with a

candidate on a state’s official ballot. See Ohio Council 8 Am. Fed. of State v. Husted, 814 F.3d

329, 334–40 (6th Cir. 2016); Schrader v. Blackwell, 241 F.3d 783, 787–91 (6th Cir. 2001).

Third, the Supreme Court has applied the Anderson-Burdick test to claims that election

laws violate a voter’s right to vote under the Fourteenth Amendment’s Due Process or Equal

Protection Clauses. Most notably, in Crawford v. Marion County Election Board, 553 U.S. 181

(2008), the lead opinion (speaking for three Justices) invoked Anderson-Burdick to uphold a law

requiring voters to present photo identification. Id. at 189–203 (lead opinion). Effectively

applying substantive-due-process analysis, this opinion said that “even rational restrictions” on

the “right to vote” will fail if they do not relate to “voter qualifications.” Id. at 189.

We too have often applied this test to resolve claims that laws infringed a voter’s

due-process or equal-protection right to vote. We have balanced a voter’s right to vote against

the state’s interests in the following voting rules: rules governing absentee-ballot drop boxes,

see A. Philip Randolph Inst. of Ohio v. LaRose, 831 F. App’x 188, 191–92 (6th Cir. 2020)

(order); rules governing signatures on ballots, see Memphis A. Philip Randolph Inst. v. Hargett,

978 F.3d 378, 390–91 (6th Cir. 2020); rules governing confined voters, see Mays v. LaRose,

951 F.3d 775, 783–93 (6th Cir. 2020); rules governing straight-ticket voting, see Mich. State

A. Philip Randolph Inst. v. Johnson, 749 F. App’x 342, 349–50 (6th Cir. 2018); Mich. State

A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 662–66 (6th Cir. 2016); rules governing vote

counting, George v. Hargett, 879 F.3d 711, 724–28 (6th Cir. 2018); Stein v. Thomas, 672

F. App’x 565, 570 (6th Cir. 2016); rules governing early voting, see Ohio Democratic Party, 834

F.3d at 626–36; Obama for Am. v. Husted, 697 F.3d 423, 428–36 (6th Cir. 2012); and rules

governing the completion of absentee and provisional ballots, see Ne. Ohio Coal. for the

Homeless v. Husted, 837 F.3d 612, 631–35 (6th Cir. 2016); Ne. Ohio Coal. for the Homeless

v. Husted, 696 F.3d 580, 591–97 (6th Cir. 2012).

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2. We would have to expand Anderson-Burdick’s balancing test into uncharted territory

if we applied it here. The Plaintiffs’ speech claim looks nothing like the claims in these three

groups of cases. For starters, paragraph (c)(3) imposes no conditions to get on Tennessee’s

ballot. So the Plaintiffs do not argue that it infringes their due-process right to vote for (or

First Amendment right to associate with) candidates on that ballot. See Anderson, 460 U.S. at

786–88. And they cannot pursue a ballot-access claim like those in Anderson, Burdick, or the

first group of cases.

Next, the Plaintiffs are not political parties. Nor does paragraph (c)(3) regulate those

parties. So the Plaintiffs do not argue that this law violates their First Amendment right of

political association by barring them from associating with candidates on the ballot or from

using their chosen method of picking nominees. Their claim thus does not resemble the

freedom-of-association claims from Timmons, California Democratic Party, or the second group

of cases.

Lastly, the Plaintiffs have not alleged that paragraph (c)(3)’s ban on distributing

absentee-ballot application forms infringes anyone’s right to vote by making it too difficult to

cast a ballot. See Crawford, 553 U.S. at 190–91 (lead opinion). So they do not argue that this

law violates voters’ substantive-due-process or equal-protection rights. Their claim thus does

not resemble the voting-rights claims from Crawford or the third group of cases.

The Plaintiffs instead raise a garden-variety freedom-of-speech claim. They say that

paragraph (c)(3) restricts either pure “political expression” or “expressive conduct” by

prohibiting them from handing out the official application forms to encourage absentee voting.

These two theories implicate the well-developed speech framework from cases like Meyer,

Johnson, Rumsfeld, and O’Brien. Neither theory triggers Anderson-Burdick balancing.

On the one hand, if the Plaintiffs were correct (contrary to what we have already held)

that paragraph (c)(3) prohibits speech promoting absentee voting, no amount of “ad hoc

balancing of relative social costs and benefits” could save such a content-based ban. United

States v. Stevens, 559 U.S. 460, 470 (2010); see Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,

792–93 (2011). Indeed, the Supreme Court has described that type of balancing test as “startling

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and dangerous” in the speech context. Stevens, 559 U.S. at 470. The “American people” already

engaged in this balancing, deciding that the benefits of speech outweigh its costs by adopting the

First and Fourteenth Amendments. Brown, 564 U.S. at 792 (quoting Stevens, 559 U.S. at 470).

And courts have no authority to rebalance their choice. See id. So even if a ban on “pure

speech” imposed minuscule burdens, we would subject it to strict scrutiny. McIntyre, 514 U.S.

at 345–46, 346 n.10.

On the other hand, if we are correct that paragraph (c)(3) bars only the conduct of

distributing a form, it would trigger the Supreme Court’s “relatively lenient” expressive-conduct

test. Johnson, 491 U.S. at 407. Through this test, the Court has likewise already engaged in the

relevant “balancing” by holding that the government may generally ban conduct even if it

“incidentally burdens speech[.]” Albertini, 472 U.S. at 688. When a ban does not target conduct

because of its message, this deferential review applies because the ban leaves open “ample

alternative channels” to convey a message—by actually speaking. Clark, 468 U.S. at 293. And

courts may not engage in a Lochner-style evaluation of the “wisdom” of the conduct ban under

the guise of the First Amendment. Pap’s A.M., 529 U.S. at 301 (plurality opinion); cf. Lochner

v. New York, 198 U.S. 45, 64 (1905). In short, either Meyer’s strict-scrutiny test or O’Brien’s

expressive-conduct test applies to the Plaintiffs’ claim. The First Amendment leaves no room

for balancing.

3. The Plaintiffs argue instead that we now use Anderson-Burdick to evaluate all

“election law” challenges—whether the challenger raises a free-speech claim, a substantive-due-

process claim, an equal-protection claim, or any other claim. Appellants’ Br. 36 (citation

omitted). This view conflicts with both text and precedent. The Supreme Court has noted that

all interpretation (including constitutional interpretation) begins with the text of the document.

See Gamble v. United States, 139 S. Ct. 1960, 1965 (2019); TransUnion LLC v. Ramirez,

141 S. Ct. 2190, 2203 (2021). And the Constitution contains no universal “cost-benefit

balancing” provision. Cf. Tiwari v. Friedlander, 26 F.4th 355, 365–66 (6th Cir. 2022). It

contains many different provisions that have many different meanings and that are relevant to

election laws in many different ways. So why would we automatically interpret an amendment

that bars the government from “abridging the freedom of speech” to mean the exact same thing

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(and require the exact same scrutiny) as one that bars the government from, say, “deny[ing]” “the

equal protection of the laws”?

Unsurprisingly, then, the Supreme Court has not applied the Anderson-Burdick test to all

First Amendment claims in the election or voting context. For example, it has applied strict

scrutiny—not Anderson-Burdick balancing—to many election laws, including those banning

anonymous campaign leaflets and prohibiting judicial candidates from airing their views on legal

topics. See McIntyre, 514 U.S. at 344–46; Republican Party of Minn. v. White, 536 U.S. 765,

774–75 (2002). It has also applied “public forum” analysis—not Anderson-Burdick balancing—

to laws restricting speech in and around polling places. See Minn. Voters All. v. Mansky, 138

S. Ct. 1876, 1885–86 (2018); Burson v. Freeman, 504 U.S. 191, 196–98 (1992) (plurality

opinion); id. at 215–16 (Scalia, J., concurring in the judgment). And it has applied a test just

below strict scrutiny (what the Court now calls “exacting scrutiny”) to disclosure requirements

for “election-related” speech. Ams. for Prosperity Found., 141 S. Ct. at 2383 (plurality opinion).

Lastly, in an analogous setting, the Court has held that a state’s conflict-of-interest rules barring

legislators from voting on bills do not violate the First Amendment because they prohibit

conduct rather than expression. Carrigan, 564 U.S. at 125–28. It did not engage in “balancing”

to reach this result.

We also have not applied the Anderson-Burdick test to all election-related challenges.

For example, we chose rational-basis review over Anderson-Burdick balancing when evaluating

a state constitutional provision imposing terms limits on state legislators. See Kowall v. Benson,

18 F.4th 542, 546–49 (6th Cir. 2021). Like the Supreme Court, we have also applied “exacting

scrutiny” to disclosure requirements in the election setting. Libertarian Party of Ohio v. Husted,

751 F.3d 403, 413–14 (6th Cir. 2014). And we have left open whether Anderson-Burdick

balancing should apply to other election-related challenges, such as those asserting procedural-

due-process claims. See Memphis A. Philip Randolph Inst., 978 F.3d at 390–91; cf. Daunt, 999

F.3d at 314.

In sum, the Plaintiffs are wrong to suggest that the Anderson-Burdick balancing test

applies to all election-related challenges. It does not. And this test does not apply to the

Plaintiffs’ free-speech claim here; rather, traditional speech rules govern that claim.

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C. Does Tennessee’s Ban Satisfy the Expressive-Conduct Test?

The Plaintiffs thus have one final free-speech path to allege a viable claim: the Supreme

Court’s expressive-conduct test. This test requires us to ask two more questions. Do the

Plaintiffs seek to engage in “inherently expressive” conduct? Rumsfeld, 547 U.S. at 66. And if

so, does the State have a “substantial” reason for banning the distribution of application forms

“that would be achieved less effectively absent the” ban? Id. at 67 (quoting Albertini, 472 U.S.

at 689).

1. Do the Plaintiffs Intend to Undertake “Inherently” Expressive Conduct?

Although O’Brien held that the First Amendment applies to some conduct in some

settings, the Supreme Court has limited the conduct eligible for this protection. The First

Amendment protects only what the Court has called “inherently expressive” conduct. Id. at 66.

To qualify as inherently expressive, an action must possess two traits. See Johnson, 491 U.S. at

404. The actor must intend to express a “particularized message” by engaging in the action.

Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 388 (6th Cir. 2005) (quoting Spence

v. Washington, 418 U.S. 405, 411 (1974) (per curiam)). And a high “likelihood” must exist that

the audience who sees the action will understand its message. Id. (quoting Spence, 418 U.S. at

411).

The first element—that the speaker intends to convey a particularized message—does not

pose a high bar. See Condon v. Wolfe, 310 F. App’x 807, 819 (6th Cir. 2009). Even a parade

that includes groups with “all sorts of messages” triggers this speech protection. Hurley

v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995); cf. Castorina

ex rel. Rewt v. Madison Cnty. Sch. Bd., 246 F.3d 536, 539–40 (6th Cir. 2001). Yet the bar does

exist. So a student’s challenge to a school dress code flunked this requirement because she did

not intend to express any message by wearing clothes that the dress code prohibited. Blau, 401

F.3d at 389.

The second element—that the audience will likely understand the message—has more

bite. That is because a viewer must be able to understand the message from the conduct alone

without any accompanying speech explaining the reasons behind it. Rumsfeld, 547 U.S. at 66.

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When a party must include “explanatory speech” for the audience to get the message, the

conduct does not warrant protection. Id. So a party who refuses to pay taxes cannot invoke the

First Amendment merely by proclaiming disdain for the tax laws when committing the crime.

See id. Likewise, the Court in Rumsfeld held that the First Amendment did not protect a law

school’s decision to bar military recruiters from campus as an act of protest against the military’s

limits on gay and lesbian servicemembers. See id. Without speech explaining this restriction,

the Court reasoned, nobody would understand that the school meant to convey disapproval of the

military’s policy. See id.

Yet other cases do not permit us to take Rumsfeld’s principle too far. The Court has also

held that we must place a party’s conduct in the “context” in which the party engaged in it.

Johnson, 491 U.S. at 405. Federal law, for example, treats burning a flag as a “dignified way” to

dispose of it. 4 U.S.C. § 8(k). Other than by considering the context, how else can one tell

whether a flag burner means to disparage the flag or to respect it? When finding flag burning

expressive, then, the Court in Johnson acknowledged that it occurred during “a political

demonstration” against President Reagan’s policies. 491 U.S. at 405–06; see also Spence, 418

U.S. at 410–11.

How do these elements play out here? In a thoughtful opinion, the district court held that

the Plaintiffs’ complaint failed to plausibly allege that their proposed conduct was inherently

expressive. See Lichtenstein, 2021 WL 5826246, at *4–6 (relying on Lichtenstein, 489

F. Supp. 3d at 764–74). The court recognized that the Plaintiffs met the first element because

their complaint asserted that they subjectively intended to express a message encouraging

absentee voting by handing out the application forms. See Lichtenstein, 489 F. Supp. 3d at 767.

But it then held that nobody who saw only this conduct would understand the message. See id. at

767–69.

We are not as confident in this conclusion because of tension in the Court’s cases. When

deciding whether an audience member would understand an action’s message, the Court has told

us both that we cannot consider speech that “accompanies” the action, Rumsfeld, 547 U.S. at 66,

and that we must consider the “context” in which the party engages in it, Johnson, 491 U.S. at

405. But the context will often include speech, such as the “political slogans” that the

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Court accounted for in Johnson. Id. at 399. So what divides the prohibited use of “explanatory

speech,” Rumsfeld, 547 U.S. at 66, from the required use of contextual speech, Johnson,

491 U.S. at 405?

This case provides a good example of the dilemma. Plaintiffs allege that they intend to

distribute application forms during get-out-the-vote drives. Compl., R.1, PageID 5. These

drives will have plenty of speech encouraging absentee voting (whether on banners or in oral

advocacy). Can we consider this speech in the analysis? Perhaps we should narrowly read

Rumsfeld to bar the use of only “explanatory” speech—that is, speech that literally explains the

conduct. 547 U.S. at 66. The Plaintiffs nowhere allege that they intend to engage in such

speech—for example, “I am handing you this form to express that you should vote absentee.”

Rather, they allege that they intend more generally to discuss the “benefits of voting by mail[.]”

Compl., R.1, PageID 9. One could view this surrounding speech at a get-out-the-vote drive as

analogous to the surrounding speech at a “political demonstration[.]” Johnson, 491 U.S. at 406.

And even if the distribution of a form conveys no message in the abstract, it might convey one in

the context of these drives.

If, by contrast, we broadly read Rumsfeld’s ban on the use of “speech that accompanies”

the conduct, perhaps we must ignore all the speech during the drives. 547 U.S. at 66. That view

would leave the Plaintiffs with nothing to clarify what they intend to convey by the distribution

of the form. And unlike flying a flag, burning a flag, or wearing an armband, handing out an

official document is not the type of thing that someone typically does “as a form of

symbolism[.]” Spence, 418 U.S. at 410; see Johnson, 491 U.S. at 404–05; Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969). Even if it “discloses” that the Plaintiffs

support absentee voting, it is not clear handing out a form “symbolizes” that support. Carrigan,

564 U.S. at 126. So it is unlikely that viewers would get the message from that conduct alone.

In the end, though, we opt not to settle these legal questions. Even if the Plaintiffs’ conduct is

“inherently expressive,” Tennessee’s ban survives the expressive-conduct test.

No. 22-5028 Lichtenstein v. Hargett Page 26

2. Does Tennessee’s Ban Survive the Scrutiny Governing Expressive Conduct?

The First Amendment does not protect inherently expressive conduct with nearly the

same rigor that it protects actual expression. As long as a state has not banned the conduct to

suppress the message behind it (we have already found Tennessee has not here), the Supreme

Court allows the government to bar the conduct if it can satisfy three other elements. O’Brien,

391 U.S. at 377. The government must have the “constitutional power” to enact the ban.

Id. The ban must serve “an important or substantial governmental interest[.]” Id. And the limits

on the expressive part of the conduct must be “no greater than is essential to the furtherance of

that interest.” Id.

a. The Supreme Court has sometimes called its expressive-conduct test “intermediate”

scrutiny. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386 (2000). Since O’Brien, however, it

has applied a test that falls much closer to the deferential rational-basis test than the demanding

strict-scrutiny test. That conclusion follows from the ways the Court evaluates both whether the

government has a “substantial interest” for a conduct ban and whether an adequate means-ends

“fit” exists between the ban and this interest.

Substantial Interest. O’Brien noted that the government must have “important or

substantial” interests for a regulation of conduct. 391 U.S. at 377. This requirement is not

demanding. Consider how a court may identify the “interests” underlying a conduct regulation.

A legislature need not identify this “governmental interest” in the law itself. Barnes, 501 U.S. at

567–68 (plurality opinion). Rather, a court may discern the justifications for a regulation by

examining its “text and history” alone. Id. at 568 (plurality opinion); id. at 582–83 (Souter, J.,

concurring in the judgment). And as long as these court-identified reasons are substantial, they

will suffice even if other evidence suggests that the government adopted the ban for an “illicit”

reason. Pap’s A.M., 529 U.S. at 292 (plurality opinion). So the ban on destroying draft cards in

O’Brien did not violate the First Amendment despite statements from some legislators implying

that they voted for it to suppress dissident views. See 391 U.S. at 384–86. In these respects, the

expressive-conduct test resembles rational-basis review (which also does not require the court-

identified interests to “actually motivate[]” a law) more than strict scrutiny or other types of

intermediate scrutiny (which bar a court from relying on “hypothesized” interests). Compare

No. 22-5028 Lichtenstein v. Hargett Page 27

FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993), with Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407, 2432 n.8 (2022), and United States v. Virginia, 518 U.S. 515, 533 (1996).

Or consider how the government can prove the importance of its interests. It need not

make an “evidentiary showing” that the harm caused by the prohibited conduct is “real.” Pap’s

A.M., 529 U.S. at 299 (plurality opinion) (discussing O’Brien, 391 U.S. at 378–80). Nor must

it prove that the specific conduct of a “particular” challenger will cause this harm. Albertini,

472 U.S. at 688. It instead may rely on highly general interests that are obviously important,

such as the “interest in raising and supporting the Armed Forces,” Rumsfeld, 547 U.S. at 67,

in “conserving park property,” Clark, 468 U.S. at 299, or in “deter[ring] crime,” Pap’s A.M.,

529 U.S. at 293 (plurality opinion). And it may rely on prior cases that have already treated the

cited interests as important. See id. at 296–97 (plurality opinion). In these respects, too, the

expressive-conduct test looks more like rational-basis review (which allows the government to

invoke general interests without “courtroom fact-finding”) than strict scrutiny (which requires

the government to prove in court the importance of its interest as applied to the specific

challenger). Compare Beach Commc’ns, 508 U.S. at 315, with Fulton v. City of Philadelphia,

141 S. Ct. 1868, 1881 (2021).

Required Fit. O’Brien also noted that a conduct ban’s “incidental restriction on alleged

First Amendment freedoms [must be] no greater than is essential to the furtherance of that

interest[.]” 391 U.S. at 377. Some of the Supreme Court’s cases (but not others) have described

this part of the expressive-conduct test as a “narrow tailoring” element. Compare Bd. of Trs. of

State Univ. of N.Y. v. Fox, 492 U.S. 469, 478 & n.3 (1989), with Rumsfeld, 547 U.S. at 67–68.

That said, the Court has used the phrase “narrow tailoring” to describe several different “means-

ends” tests. And the more demanding “narrow tailoring” that it requires for speech restrictions

looks nothing like the lenient “narrow tailoring” (if any) that it requires for conduct bans.

The Court, for example, has held that the most rigorous test (strict scrutiny) requires a

speech limit to be “narrowly tailored” to a compelling interest. Citizens United, 558 U.S. at 340

(citation omitted). To satisfy strict scrutiny’s version of narrow tailoring, the government must

adopt the “least” speech “restrictive means” to achieve its interest. McCullen, 573 U.S. at 478.

No. 22-5028 Lichtenstein v. Hargett Page 28

If the government could serve its interests through an alternative that limited less speech, it must

pick “that alternative.” United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000).

It is, by contrast, well-established that a ban on conduct will pass muster even if a court

can identify “alternative methods” that would serve the government interest equally well while

imposing less burdens on the expressive component of the conduct. Rumsfeld, 547 U.S. at 67;

see Albertini, 472 U.S. at 689. That these “alternative methods” exist is, in the Court’s words,

“beside the point.” Rumsfeld, 547 U.S. at 67. When a dispute involves conduct regulations, the

First Amendment leaves the choice among alternatives to legislators, not courts. Id.

Apart from strict scrutiny, the Court has also held that a government must engage in

narrow tailoring for content-neutral restrictions on the “time, place, and manner” of engaging in

speech. See McCullen, 573 U.S. at 486; Ward v. Rock Against Racism, 491 U.S. 781, 799–800

(1989). And it has held that the “exacting scrutiny” test applicable to government-compelled

disclosures requires similar “narrow tailoring.” Ams. for Prosperity Found., 141 S. Ct. at 2383–

84 (citation omitted). According to the Court, these versions of narrow tailoring require a “close

fit” between the speech restriction and the government interest. McCullen, 573 U.S. at 486.

That is, a regulation of speech cannot restrict “substantially more speech than is necessary to

further the government’s legitimate interests.” Id. (quoting Ward, 491 U.S. at 799); Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994). And the regulation must “leave open ample

alternative channels” for speaking. McCullen, 573 U.S. at 477 (quoting Ward, 491 U.S. at 791).

Although the Court has sometimes all but equated its test for conduct regulations and its

test for laws restricting the time, place, and manner of speech, see Clark, 468 U.S. at 298–99, it

has in practice imposed less rigorous “tailoring” requirements for the former regulations. Unlike

cases involving speech, see Turner, 512 U.S. at 636–37, cases involving conduct have not asked

whether a regulation covered “substantially more speech than is necessary to further the

government’s legitimate interests,” id. at 662 (citation omitted); see Rumsfeld, 547 U.S. at 67.

Also unlike cases involving speech, see Ward, 491 U.S. at 791, cases involving conduct have not

asked whether the regulation left “open ample alternative channels of communication,” id. at

802; see Rumsfeld, 547 U.S. at 67. And although O’Brien seemingly suggested that any

incidental restriction on First Amendment freedoms must be “no greater than is essential to the

No. 22-5028 Lichtenstein v. Hargett Page 29

furtherance” of a substantial governmental interest, 391 U.S. at 377, the Court has since made

clear that this test is not nearly as difficult to meet as it sounds. Instead, the Court has held that

an adequate relationship exists between the means (the conduct ban) and the ends (the

government interest) as long as the interest “would be achieved less effectively” without the ban.

Rumsfeld, 547 U.S. at 67 (quoting Albertini, 472 U.S. at 689). That is, the ban need only

“further” the interest. Pap’s A.M., 529 U.S. at 301 (plurality opinion); see also Arcara v. Cloud

Books, Inc., 478 U.S. 697, 706–07, 707 n.4 (1986). Because, for example, the mandate that

law schools allow military recruiters on campus would “add to the effectiveness of

military recruitment,” the Court in Rumsfeld held that it satisfied this test without requiring more.

547 U.S. at 67.

An example further proves that the Court treats content-neutral speech regulations

differently from conduct regulations. The Court has held that the government may not rely on

administrative “convenience” or “efficiency” to adopt a content-neutral speech limit that sweeps

up more speech than is required to achieve the restriction’s underlying objective. McCullen, 573

U.S. at 486, 495; cf. Ams. for Prosperity Found., 141 S. Ct. at 2387. But the Court has held the

opposite for conduct bans. In that context, the government may adopt a “uniform” prohibition

on “administrative efficiency” grounds even if the prohibition is overinclusive because it bars

some expressive conduct that would “cause no serious damage” to the government’s underlying

objective. Superior Ct. Trial Lawyers Ass’n, 493 U.S. at 430; see O’Brien, 391 U.S. at 378–79.

In the end, it should come as no surprise that the Court provides a softer First

Amendment touch to limits on conduct rather than speech. Conduct restrictions will never

“burden substantially more speech” than necessary. McCullen, 573 U.S. at 486 (citation

omitted). By definition, they burden no actual speech. And these restrictions will always leave

open ample avenues for speaking. See id. at 477. By definition, they leave open every avenue

for actual speech.

Pap’s A.M. shows the lenient nature of both parts of this test. That case addressed a

city’s public-nudity ban. 529 U.S. at 283–84. The ban required nude dancers at adult-

entertainment venues to “wear, at a minimum ‘pasties’ and a ‘G-string.’” Id. at 284. The

controlling plurality opinion suggested that “nude dancing” was inherently expressive. Id. at 289

No. 22-5028 Lichtenstein v. Hargett Page 30

(plurality opinion). But it then held that the ban satisfied the expressive-conduct test. It

reasoned that the city sought to combat the “secondary effects”—namely, the increased crime—

that these venues caused. Id. at 290. The plurality found this interest substantial without

evidence that crime had increased near the city’s adult-entertainment venues. Id. at 296. It

instead allowed the city to “rely” on the secondary effects that the Court had identified in other

cases. Id. at 296–97. But how would the requirement that dancers wear barely any attire

reduce crime? Some Justices ridiculed this claim as a “titanic surrender to the implausible.”

Id. at 323–24 (Stevens, J., dissenting). Yet the plurality stated, without evidence, that the ban

would “further” this crime-reduction interest (if not by much). Id. at 301 (plurality opinion).

And it reiterated that the expressive-conduct test did not permit it to assess the “wisdom” of the

city’s “chosen” method to serve that interest. Id.

b. Even at the pleading stage, we hold that paragraph (c)(3)’s ban on distributing the

official absentee-ballot application forms also satisfies this test. Nobody disputes that Tennessee

had the “constitutional power” to enact this ban. O’Brien, 391 U.S. at 377. The Constitution

gives the states the authority to “prescribe[]” the “Times, Places and Manner of holding” federal

elections. U.S. Const. art. I, § 4, cl. 1. And the states have equally broad authority to regulate

their own elections. See Clingman, 544 U.S. at 586; Burdick, 504 U.S. at 433. The states thus

retain the general power to identify the voters who may vote absentee, to regulate the process

they must follow to vote this way, and to criminalize violations of election-related rules. See,

e.g., Meyer, 486 U.S. at 427–28; McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802,

807–09 (1969); Mays, 951 F.3d at 792; Ohio Democratic Party, 834 F.3d at 626.

Paragraph (c)(3) also meets the expressive-conduct test’s substantial-interest and fit

elements based on the same considerations that led the district court to find it met the

Anderson-Burdick balancing test. See Lichtenstein, 2021 WL 5826246, at *7 (relying on

Lichtenstein, 489 F. Supp. 3d at 780–86). To begin with, merely by examining paragraph

(c)(3)’s “text” alone, we may reasonably identify at least one interest that the government seeks

to serve: minimizing voter confusion. Barnes, 501 U.S. at 567 (plurality opinion). Tennessee

strictly limits absentee voting by mail. Tenn. Code Ann. § 2-6-201. So only about 2.5% of

Tennessee voters have historically voted this way. See Memphis A. Philip Randolph Inst.,

No. 22-5028 Lichtenstein v. Hargett Page 31

978 F.3d at 382; cf. Compl., R.1, PageID 8–9. If paragraph (c)(3)’s ban did not exist, however,

“various groups” could send the official application form to all voters—even though only a

fraction may vote absentee. Memphis A. Philip Randolph Inst., 478 F. Supp. 3d at 704. These

types of mass mailings could cause mass confusion. That is especially true if a group’s

commentary accompanying the official form is misleading or if the group has prefilled the

part of the form listing the reason that the voter seeks to vote absentee. See Lichtenstein,

489 F. Supp. 3d at 783. On receiving this form, some voters might wrongly conclude that they

are eligible to vote absentee. Others might wrongly believe that they must fill it out to vote at

all. Cf. Memphis A. Philip Randolph Inst., 478 F. Supp. 3d at 704–05. Yet if these voters show

up at the polls, they must cast a provisional ballot. Tenn. Code Ann. § 2-7-112(a)(3)(A). And if

voters receive this form from multiple parties, they may submit several versions—increasing

burdens on election officials. See Lichtenstein, 489 F. Supp. 3d at 783.

Under the expressive-conduct test, Tennessee need not introduce evidence to prove that

its general concern with avoiding voter confusion qualifies as a substantial interest. Cf. Pap’s

A.M., 529 U.S. at 299–300 (plurality opinion). In other contexts, the Supreme Court has

described this interest as “important”—indeed, “compelling.” Munro v. Socialist Workers Party,

479 U.S. 189, 193–95 (1986) (citation omitted); Burson, 504 U.S. at 199 (plurality opinion). The

Court, for example, has allowed states to rely on this rationale to limit the number of candidates

on the ballot. See Munro, 479 U.S. at 194–95; Jenness v. Fortson, 403 U.S. 431, 442 (1971). It

has relied on this rationale to justify a speech ban around the polling place. See Burson, 504 U.S.

at 199–211 (plurality opinion). And it has relied on this rationale to discourage last-minute

election changes. See Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam).

Next, paragraph (c)(3) would “further” (in the words of Pap’s A.M.) or “add to” (in the

words of Rumsfeld) the goal of reducing confusion about whether voters may vote absentee.

Pap’s A.M., 529 U.S. at 301 (plurality opinion); Rumsfeld, 547 U.S. at 67. If nobody can

distribute the official applications to voters, no voters will get confused about their eligibility to

vote absentee when they receive an unsolicited application. And no voters will get confused

over whether they must fill out this form to vote at the polls. In short, because Tennessee would

“be more exposed to [voter confusion] without [paragraph (c)(3)] than with it, the ban is safe

No. 22-5028 Lichtenstein v. Hargett Page 32

from invalidation under the First Amendment[.]” Clark, 468 U.S. at 297. This means-ends

relationship is much more “evident” to us than, say, the plurality’s conclusion in Pap’s A.M. that

crime will go down near adult-entertainment venues if dancers wear next to nothing. 529 U.S. at

300–01 (plurality opinion). And this relationship is all that is required. See Rumsfeld, 547 U.S.

at 67.

In response, the Plaintiffs do not dispute that Tennessee generally serves an important

interest when it seeks to reduce voter confusion. Appellants’ Br. 40. But they argue that

paragraph (c)(3) does so in a blunderbuss way by banning far more conduct than necessary to

achieve this goal. They note, for example, that the ban applies even when eligible voters request

the application form from them. Reply Br. 18. Why not simply bar the unsolicited distribution

of the form? Or why not bar only the distribution of the form to ineligible voters? Or why not

just bar mass mailings? All fair points. And these arguments might have merit if we had to

subject paragraph (c)(3) to anything like strict scrutiny. But these “alternative methods . . . are

beside the point” here. Rumsfeld, 547 U.S. at 67. Under the expressive-conduct test, “[i]t

suffices that the means chosen by [Tennessee] add to the effectiveness of” Tennessee’s efforts to

avoid voter confusion. Id. And we cannot upend the State’s choice about “the most appropriate

method” to prevent this confusion simply because we might have advocated for a narrower ban if

we sat in the Tennessee legislature. Albertini, 472 U.S. at 689. Nor can we upend the State’s

choice simply because the Plaintiffs allege that they will not engage in any conduct that would

cause confusion. See id. at 688–89. Even if making some exceptions would not significantly

undermine Tennessee’s interests, the State can use a “uniform rule” to serve “administrative

efficiency.” Superior Ct. Trial Lawyers Ass’n, 493 U.S. at 430. And for what it is worth, the

Plaintiffs’ argument is also partially overbroad. After all, the State permits them to hand out a

privately made “request” for an absentee-ballot application (which can serve as an application

itself) if voters ask for one. See Tenn. Code Ann. § 2-6-202(a)(3), (c)(4).

The test may be deferential, the Plaintiffs counter, but we still cannot find it met at the

pleading stage. Appellants’ Br. 13, 41 & n.17. At this stage, they remind us, we must accept

their well-pleaded factual allegations as true and make all reasonable inferences in their favor.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). They raise another fair point. But we disagree

No. 22-5028 Lichtenstein v. Hargett Page 33

with them given the nondemanding nature of the expressive-conduct test. Consider two

analogies. When rational-basis review applies, it is downright routine for courts to dismiss

constitutional challenges at the pleading stage. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 456,

470–73 (1991); Sanchez v. Off. of State Superintendent of Educ., 45 F.4th 388, 395–400 (D.C.

Cir. 2022); Lyda v. City of Detroit (In re City of Detroit), 841 F.3d 684, 701–02 (6th Cir. 2016).

Likewise, “we have not shied away from” granting motions to dismiss under the Anderson-

Burdick test even though it can require a fact-intensive balance of a law’s burdens on voting

rights against the state’s precise justifications for the law. Daunt, 999 F.3d at 312–13 (collecting

cases).

The same result should apply here. We “fail to see how further factual development

could change” our conclusion that paragraph (c)(3) furthers important state interests—all that is

required. See id. at 313. The State need not make an “evidentiary showing” proving a

sufficiently high risk of voter confusion. Pap’s A.M., 529 U.S. at 299 (plurality opinion). Nor

must it prove that paragraph (c)(3) sufficiently furthers this interest in avoiding confusion, see id.

at 300–01, or that the State could not achieve it through “alternative” means, Rumsfeld, 547 U.S.

at 67. Indeed, the Plaintiffs direct their request for factual development primarily to the district

court’s separate holding that they failed to plead that they seek to engage in inherently expressive

conduct. Even if they could meet that element, however, their claim would still fail because

paragraph (c)(3)’s nearly non-existent intrusion on their expression survives the expressive-

conduct test.

III. Does Tennessee’s Ban Infringe the Plaintiffs’ Freedom of Association?

This conclusion leaves the Plaintiffs’ alternative theory that “exacting scrutiny” should

apply because paragraph (c)(3) infringes their freedom of association. The Supreme Court has

read the First Amendment to impliedly protect a right to associate with others for the purpose of

exercising the “freedom of speech” that the amendment expressly protects. See Roberts v. U.S.

Jaycees, 468 U.S. 609, 622 (1984). The Plaintiffs assert that the Tennessee law violates this

right because it interferes with their ability to “engage and associate with their” members and

with other voters “to advance their core belief in civic participation.” Appellants’ Br. 32. But

No. 22-5028 Lichtenstein v. Hargett Page 34

this amorphous theory interprets the right of association more broadly than the Supreme Court’s

cases permit.

The Court protects the free-speech right of expressive association (as compared to the

substantive-due-process right of intimate association) because collaboration can help people

spread a message. See Rumsfeld, 547 U.S. at 68; cf. Roberts, 468 U.S. at 618–22. Just as money

or ink can be speech “inputs” that create protected expression, so too people can form groups to

better convey a shared point of view. See Rumsfeld, 547 U.S. at 68. And a law regulating group

activity can harm the group’s ability to produce its desired message—thereby abridging the

speech of the group and its members. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000).

The Supreme Court’s precedent has led us to consider three things when confronted with

an expressive-association claim. See Hamilton Cnty. Educ. Ass’n v. Hamilton Cnty. Bd. of

Educ., 822 F.3d 831, 840 (6th Cir. 2016); Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th

Cir. 2010). First: Does the First Amendment apply to the group because it engages in speech?

See Dale, 530 U.S. at 648. Second: If the group engages in speech, does a law “significantly

burden” its ability to express its message? See id. at 653; Roberts, 468 U.S. at 622–23. Third: If

this burden exists, can the government satisfy the scrutiny that applies? For some burdens, the

Court has applied strict scrutiny. See Dale, 530 U.S. at 648; Roberts, 468 U.S. at 623. For

others, it has applied its less rigorous “exacting scrutiny” test. Ams. for Prosperity Found., 141

S. Ct. at 2383 (plurality opinion) (quoting Buckley, 424 U.S. at 64); cf. id. at 2391–92 (Alito, J.,

concurring in part and concurring in the judgment). And for the ballot-access burdens that we

have discussed, it has applied the Anderson-Burdick balancing test. See Wash. State Grange,

552 U.S. at 451–52.

The Plaintiffs’ complaint in this case alleges facts that easily make it past our first step.

The Supreme Court’s expressive-association cases apply most obviously to “[p]olitical advocacy

groups” whose raison d’être is speaking. Miller, 622 F.3d at 538. And here, most of the

Plaintiffs allege that they qualify as these sorts of groups that exist to engage in political

expression. See id.

No. 22-5028 Lichtenstein v. Hargett Page 35

But the Plaintiffs cannot make it past step two, which asks whether paragraph (c)(3)

“significantly burden[s]” their ability to associate with others to express a message. Dale, 530

U.S. at 653. A government can burden the right to associate in a “number” of ways. Ams. for

Prosperity Found., 141 S. Ct. at 2382 (quoting Roberts, 468 U.S. at 622). It might compel a

group (say, the Boy Scouts) to accept members with whom the group does not want to associate

(say, openly gay individuals) because the group believes that this membership will dilute its

message (say, disapproval of non-heterosexual conduct). See Dale, 530 U.S. at 653. The

government also might compel a group (say, the NAACP) to disclose its list of members to a

hostile audience (say, the segregated south) and so deter individuals from joining the group out

of fear of harassment. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461–63 (1958).

Or the government might discriminate against a group (say, the Students for a Democratic

Society) by refusing to give it a generally available benefit (say, access to a college’s facilities)

that groups generally use to air their points of view. See Healy v. James, 408 U.S. 169,

181 (1972). Or it might prohibit a group (say, the NAACP) from soliciting individuals

(prospective clients) to associate with the group’s lawyers for litigation purposes. See NAACP v.

Button, 371 U.S. 415, 429–37 (1963); see also NAACP v. Claiborne Hardware Co., 458 U.S.

886, 911–12, 924–26 (1982).

Here, however, we do not see how paragraph (c)(3) affects the Plaintiffs’ ability to

associate with others in order to create or convey a message, even after accepting their

complaint’s allegations as true. Nothing in paragraph (c)(3) requires the Plaintiffs to accept

certain members who would contradict their message. See Rumsfeld, 547 U.S. at 69–70; cf.

Dale, 530 U.S. at 653. Nothing bars them from associating with anyone. See Button, 371 U.S. at

429–37. Nothing threatens legal punishment or practical harm for those who decide to join the

Plaintiffs. Cf. Elrod v. Burns, 427 U.S. 347, 355–56 (1976) (plurality opinion); Patterson, 357

U.S. at 462. So nothing discourages individuals from becoming members. And nothing denies

the Plaintiffs or their members a benefit that Tennessee broadly makes available to others.

Cf. Healy, 408 U.S. at 181–82. To the contrary, the law neutrally applies to all groups and

individuals. The Plaintiffs’ complaint thus asserts no facts that plausibly allege that this law

“directly or indirectly” affects their “group membership” in a way that undermines their

message. Miller, 622 F.3d at 538.

No. 22-5028 Lichtenstein v. Hargett Page 36

In response, the Plaintiffs argue that they “associate” with members in the community

through their “civic engagement activity” and that paragraph (c)(3) limits their ability to

undertake this speech. Reply Br. 16. As far as we can tell, this argument merely repackages

their claim that strict scrutiny should apply because the law interferes with expression. But that

same alleged “interference” will occur whether an individual or group engages in the speech; the

interference does not affect their ability to associate at all. Besides, this claim fails for the

reasons that we have explained: nothing in paragraph (c)(3) affects their ability to create or

convey speech.

The Plaintiffs also fault the district court for disregarding this distinct freedom-of-

association claim when dismissing their complaint. But that court did not ignore this claim. It

held that the Anderson-Burdick balancing test applied to the claim and rejected it on that ground.

Lichtenstein, 489 F. Supp. 3d at 778; see Lichtenstein, 2021 WL 5826246, at *4, *6 & n.5, *7–8.

Although this is not the type of associational claim to which we have applied Anderson-Burdick,

we may affirm on alternative grounds. See McCormick v. Braverman, 451 F.3d 382, 396 (6th

Cir. 2006); cf. Mays, 951 F.3d at 791–93. And, as a matter of law, the Plaintiffs have not

adequately pleaded that paragraph (c)(3) burdens their right of expressive association in any way.

* * *

In the end, the Plaintiffs may well have articulated several good “policy” arguments

about why Tennessee should reconsider paragraph (c)(3)’s scope now that its election officials

have posted the official application forms online. Lichtenstein, 489 F. Supp. 3d at 786. Indeed,

our colleague mentions several of those reasons in dissent. Dissenting Op., at 37–38 & n.2. But

our job is not to decide whether the ban represents good or bad policy. That is the job of the

Tennessee legislature. We may intervene to stop the enforcement of this democratically passed

law only if it violates some federal standard, here the First Amendment. And under the

deferential free-speech rules that, at most, apply to the Plaintiffs’ claims, the ban passes

constitutional muster.

We affirm.

No. 22-5028 Lichtenstein v. Hargett Page 37

_________________

DISSENT

_________________

HELENE N. WHITE, Circuit Judge, dissenting. The majority upholds a Tennessee law

that threatens to imprison persons who distribute publicly available absentee-ballot applications.

See Tenn. Code. Ann. § 2-6-202(c)(3). Because Plaintiffs plausibly allege that the law burdens

their “core political speech,” for which the First Amendment is “at its zenith,” I reject the

majority’s reliance on the O’Brien test and find resolution of this case on the pleadings

inappropriate. Buckley v. Am. Const. L. Found., 525 U.S. 182, 187 (1999) (quoting Meyer

v. Grant, 486 U.S. 414, 422, 425 (1988)). I also disagree with the majority’s discussion of

Anderson-Burdick and O’Brien and the majority’s rejection of Plaintiffs’ expressive-association

claim. See Maj. Op. 16–22, 26–36. For these reasons, I respectfully dissent.

I.

Like many states, Tennessee makes absentee-ballot applications available online for

anyone to print and download. But under Tennessee law, “[a] person who is not an employee of

an election commission commits a Class E felony if such person gives an application for an

absentee ballot to any person.” Tenn. Code. Ann. § 2-6-202(c)(3). A Class E felony carries a

prison sentence of one to six years and a fine up to $3,000. See id. § 40-35-111(b)(5). Thus, in

Tennessee, a grandson risks years behind bars for encouraging his grandparents over age 60 to

vote by mail and handing them publicly available forms.1 The same is true for a soldier sharing

1Recipients in this example and the following in-text examples are all eligible to vote

absentee in Tennessee. See Tenn. Code Ann. §§ 2-6-201(5)(A), (C), -502(a). The “subset of voters” who may

vote absentee in the state, Maj. Op. 3, is significant in number. In 2019, 1,577,807 Tennesseans

were age 60 or older, comprising 23% of the population. See Population Counts by Age Group, Sex, Race and

Ethnicity, Estimates 2019, https://www.tn.gov/content/dam/tn/health/documents/population/TN-Population-by-

AgeGrp-Sex-Race-Ethnicity-2019.pdf (last visited Aug. 25, 2023). Added to this number are persons who are

outside their counties of registration during in-person voting, see Tenn. Code Ann. § 2-6-201(1), (9), students who

attend in-state higher-education institutions located outside their counties of registration and their spouses, see id.

§ 2-6-201(2), persons who are unable to vote in person due to sickness, hospitalization, or physical disability or who

reside full-time in nursing homes or similar establishments located outside their counties of registration, see id.

§ 2-6-201(3), (5)(B)–(C), persons who are unable to vote in person due to jury service, see id. § 2-6-201(4),

candidates for office, see id. § 2-6-201(6), election officials, see id. § 2-6-201(7), and persons who are unable to vote

in person because of observance of religious holidays, see id. § 2-6-201(8).

No. 22-5028 Lichtenstein v. Hargett Page 38

forms with other Tennesseans stationed overseas, or a neighbor delivering forms to those who

cannot vote in person due to illness or disability.2

The same is also true for Plaintiffs, a labor organizer and several Tennessee-based civic

and labor groups, all “committed to engaging and organizing Tennesseans around making their

voices heard through voting.” R. 1, PID 8. These groups include the Memphis and West

Tennessee ALF-CIO Central Labor Council (MCLC),3 the Tennessee State Conference of the

NAACP,4 the Equity Alliance,5 the Memphis A. Philip Randolph Institute,6 and Free Hearts.7

2In this regard, I acknowledge that Plaintiffs do not challenge Tennessee’s law on due-process grounds; nor

do they argue in their briefing that the law fails for overbreadth, see Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 n.6 (2008), vagueness, see Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588

(1998), or otherwise chilling protected speech that is not directly prohibited, see Laird v. Tatum, 408 U.S. 1,

11 (1972); and they do not argue the law violates their right to petition, as Amicus Cato Institute asserts. Br. of

Amicus Cato Inst. 8–12. I thus do not address these arguments, notwithstanding any potential merit.

3“The Memphis and West Tennessee AFL-CIO Central Labor Council, also known as the Memphis Central

Labor Council (‘MCLC’), is a Memphis, Tennessee-based union that acts as an umbrella organization for

41 affiliate unions based in western Tennessee. MCLC is dedicated to representing the interests of working people

at the state and local levels by advocating for social and economic justice. In support of its advocacy agenda,

MCLC routinely engages in voter outreach efforts, including of its approximately 20,000 members and their

families, through voter identification, education, and mobilization drives.” R. 1, PID 3.

4“The Tennessee State Conference of the NAACP (‘Tennessee NAACP’) is a nonpartisan, multi-racial,

non-profit membership organization headquartered in Jackson, Tennessee. Tennessee NAACP has three regional

divisions—Eastern, Middle, and Western Tennessee—as well as the 33 local branch units and 22 college chapters

and youth councils. Tennessee NAACP was founded in 1946 to serve as the Tennessee arm of the National

Association for the Advancement of Colored People. Its mission is to eliminate race-based discrimination through

securing political, educational, social, and economic equality rights and ensuring the health and well-being of all

persons. Tennessee NAACP has more than 10,000 members across the State, primarily consisting of African

Americans, other people of color, and allies. Tennessee NAACP and most local branch units are primarily

volunteer-run, and all officers are volunteers.” R. 1, PID 3–4.

5“The Equity Alliance is a Nashville, Tennessee-based nonpartisan, non-profit organization that seeks to

equip citizens with tools and strategies to engage in the civic process and empower them to take action on issues

affecting their daily lives. The Equity Alliance is dedicated to expanding the electorate, educating communities of

color about the political process, and engaging and empowering citizens to vote.” R. 1, PID 4.

6The “Memphis A. Philip Randolph Institute (‘APRI’) is a Memphis, Tennessee-based non-profit political

advocacy and membership organization which works to strengthen ties between the labor movement and the

community, increase the political impact of black voters, and implement structural changes through the American

democratic process. In support of its advocacy and engagement efforts, APRI sponsors voter education and Get-

Out-The-Vote programs in the community.” R. 1, PID 5.

7“Free Hearts is a nonpartisan, nonprofit organization based in Nashville, Tennessee. Since 2015, Free

Hearts has educated, organized, advocated for, and supported the families of individuals impacted by the criminal

punishment system. Free Hearts works across the State and in coalition with other nonprofit groups to support

approximately 426 incarcerated and formerly incarcerated individuals and their families. It has 5 full-time staff and

approximately 40 volunteers who engage with their community base on a regular basis. Since 2017, Free Hearts has

also been working to expand the franchise to those impacted by the criminal justice system. To that end, Free

No. 22-5028 Lichtenstein v. Hargett Page 39

They and Jeffrey Lichtenstein, who is Executive Secretary of the MCLC, seek to provide

absentee-ballot applications to their members as part of get-out-the-vote campaigns, through

which they educate and encourage voters to participate in the electoral process, including by

voting absentee.

Plaintiffs brought this challenge before the 2020 Presidential Election and describe their

intended activity in their complaint. “In election after election, Plaintiffs have run or participated

in voter engagement programs involving voter registration activities, voter education, and voter

turnout.” Id. at PID 8. They engage with a wide variety of voters, including union members and

their families, see id. at PID 3, individuals and “families . . . impacted by the criminal

punishment system,” id. at PID 5, “communities of color,” id. at PID 4, and “communities that

have had historically low voter registration and turnout,” id.

Plaintiffs anticipate that “outreach to eligible absentee voters will play a central role in

[their] voter engagement strategy,” noting that, “in the August 2020 election, more than 116,000

Tennessee voters cast absentee ballots, which [was] over five times more than had done so in the

prior four August elections.” Id. at PID 8–9. Accordingly, “as a key part of [their] absentee

voter engagement, Plaintiffs will, if permitted, provide potential absentee voters with the blank

absentee ballot applications that are available online from the state and county election

commissions.” Id. at PID 9. Distributing forms “is necessary,” they allege, “because Plaintiffs

have found that their voter engagement efforts are significantly more effective when they are

able to provide voters with all of the information and requisite forms they might need.” Id.

Plaintiffs’ activity “will necessarily include discussing with voters the benefits of voting by mail,

reminding eligible absentee voters about application and ballot submission deadlines and

requirements, and following up with voters to ensure their ballots were received, cast and

counted.” Id.

Hearts registers eligible individuals in jails, advocates for jails to become polling sites, helps restore voting rights to

formerly incarcerated individuals, and advocates for reforms around automatic voter registration in Tennessee.”

R. 1, PID 5–6.

No. 22-5028 Lichtenstein v. Hargett Page 40

II.

Based on the pleadings, I would subject Tennessee’s law to the “exacting scrutiny” that

the Supreme Court applies to burdensome restrictions on sharing other kinds of political

documents, such as petitions and pamphlets. Like these protected activities, distributing

absentee-ballot applications necessarily involves “core political speech.” Meyer, 486 U.S. at

420; see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 344–47 (1995).

A.

The Supreme Court has employed “exacting scrutiny,” or a similarly demanding

standard, when evaluating restrictions on activities that involve sharing political documents,

recognizing that these activities necessarily involve “core political speech,” and thus that

restrictions on these activities restrict “core political speech.” Meyer, 486 U.S. at 420–22.8

Under this standard, a law is only sustainable “if it is narrowly tailored to serve an overriding

state interest.” McIntyre, 514 U.S. at 347.

1.

The Court’s unanimous decision in Meyer v. Grant is instructive. There, Colorado

enabled citizens to place a proposed state law or constitutional amendment on the

general-election ballot if they gathered enough signatures on a petition. See 486 U.S. at 416.

Plaintiffs in that case, whose petition concerned whether to deregulate the trucking industry,

challenged a state law banning the payment of petition circulators. See id. at 417–21. The Court

invalidated the law, applying “exacting scrutiny.” Id. at 420, 425–28.

The Court began its analysis by observing the speech interests at stake, noting that the

subject of the petition was “a matter of societal concern” and that the plaintiffs “[u]nquestionably

. . . [had] a right to discuss” this issue “publicly without risking criminal sanctions.” Id. at 421.

As the Court explained, “[t]he freedom of speech and of the press guaranteed by the Constitution

embraces at the least the liberty to discuss publicly and truthfully all matters of public concern

8The Court has also termed this standard “strict scrutiny.” McIntyre, 514 U.S. at 346 n.10 (employing

Meyer’s standard and noting that the Court there “unanimously applied strict scrutiny”).

No. 22-5028 Lichtenstein v. Hargett Page 41

without previous restraint or fear of subsequent punishment.” Id. (quoting Thornhill v. Alabama,

310 U.S. 88, 101–02 (1940)). This is because “the First Amendment reflects a ‘profound

national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust,

and wide-open.’” Boos v. Barry, 485 U.S. 312, 318 (1988) (quoting N.Y. Times Co. v. Sullivan,

376 U.S. 254, 270 (1964)).

The Court then considered how these speech interests intersected with the activity at

issue. Citing several paragraphs of testimony in the record, the Court found that petition

circulation “will in almost every case involve an explanation of the nature of the proposal and

why its advocates support it.” Id. at 421 & n.4. “Thus,” the Court concluded, “the circulation of

a petition involves the type of interactive communication concerning political change that is

appropriately described as ‘core political speech.’” Id. at 421–22. And based on that conclusion,

the Court found that Colorado’s law restricted “political expression” by reducing the number of

speakers, how much they would speak, the size of the audience reached, and the likelihood that

the issue would get on the ballot. See id. at 422–23.

The Court determined that Colorado could not justify this restriction. The state argued

that “the burden [was] permissible because other avenues of expression remain[ed] open.” Id. at

424. But this argument failed because the law “restrict[ed] access to the most effective,

fundamental, and perhaps economical avenue of political discourse, direct one-on-one

communication,” and “[t]he First Amendment protect[ed] [plaintiffs’] right not only to advocate

their cause but also to select what they believe[d] to be the most effective means for so doing.”

Id. This was an unconstitutional burden even though the plaintiffs could still spend heavily on

direct communication by paying workers to discuss the petition door-to-door or elsewhere; what

mattered was that they could not pay workers to gather signatures in this fashion. The state also

argued that the burden was allowed “because [it] [had] the authority to impose limitations on the

scope of the state-created right to legislate by initiative.” Id. But this argument failed too

because the state did not have “the power to limit discussion of political issues raised in initiative

petitions.” Id. at 425.

Accordingly, Meyer teaches two important lessons. First, restrictions on an activity

trigger heightened scrutiny under the First Amendment if, as a factual matter, the activity

No. 22-5028 Lichtenstein v. Hargett Page 42

necessarily involves core political speech. Second, exacting scrutiny applies even if speakers are

free to express themselves in other ways and even if the speech arises in the context of a state-

controlled mechanism.9

2.

Outside the realm of petition circulation, the Court has applied Meyer’s exacting scrutiny

to restrictions on a similar activity—pamphlet distribution. See McIntyre, 514 U.S. at 346 (citing

Meyer, 486 U.S. at 420); see also Buckley, 525 U.S. at 190 (noting that “[i]nitiative-petition

circulators . . . resemble handbill distributors”). And in cases long preceding Meyer, the Court

also employed demanding forms of scrutiny for restrictions on this activity. See, e.g., Jamison

v. Texas, 318 U.S. 413, 416 (1943); Schneider v. State (Town of Irvington), 308 U.S. 147, 164

(1939); Lovell v. City of Griffin, 303 U.S. 444, 451–52 (1938).

This stringent approach is unsurprising, given that pamphlet distribution “is the essence

of First Amendment expression.” McIntyre, 514 U.S. at 347. Few traditions are more embedded

in this nation’s political history:

It was in this form—as pamphlets—that much of the most important and

characteristic writing of the American Revolution appeared. For the

Revolutionary generation, as for its predecessors back to the early sixteenth

century, the pamphlet had peculiar virtues as a medium of communication. Then,

as now, it was seen that the pamphlet allowed one to do things that were not

possible in any other form.

McCullen v. Coakley, 573 U.S. 464, 489 n.5 (2014) (quoting B. Bailyn, The Ideological Origins

of the American Revolution 2 (1967)). Pamphlets “have been historic weapons in the defense of

liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.”

Lovell, 303 U.S. at 452.

These cases reinforce Meyer’s lessons. Like petition circulation, pamphlet distribution is

an activity that inherently involves “core political speech,” and restrictions on this activity are

9I reject the majority’s cramped focus on speech “inputs” and suggestion that exacting scrutiny applied in

Meyer only because Colorado restricted spending on speech. See Maj. Op. 10–11. Plainly, it mattered to the Court

that the Meyer plaintiffs were restricted from spending their money in particular ways. That is, the plaintiffs were

restricted from pursuing particular activities, the same as Plaintiffs here.

No. 22-5028 Lichtenstein v. Hargett Page 43

thus subject to exacting scrutiny. McIntyre, 514 U.S. at 347. Parties have come before the Court

and asserted that pamphlet distribution may be banned so long as publication of the underlying

material is allowed. See, e.g., Lovell, 303 U.S. at 452. But this country’s free-speech traditions

emphatically reject that notion: “Liberty of circulating is as essential to that freedom as liberty of

publishing; indeed, without the circulation, the publication would be of little value.”

Id. (quoting Ex parte Jackson, 96 U.S. 727, 733 (1877)).

B.

Against this backdrop, I would employ “exacting scrutiny” to evaluate Tennessee’s law.

1.

The first question is whether Tennessee’s law restricts Plaintiffs’ core political speech.

As done in Meyer, I start by identifying the subject of Plaintiffs’ speech—whether and how to

vote by absentee ballot in Tennessee—which is “[u]nquestionably . . . a matter of societal

concern that [Plaintiffs] have a right to discuss publicly without risking criminal sanctions,”

Meyer, 486 U.S. at 421. As the majority notes, “Plaintiffs’ underlying get-out-the-vote activities

. . . [are] entitled to rigorous First Amendment protection.” Maj. Op. 12. And as this court noted

in a case concerning Tennessee’s voting laws, the COVID-19 pandemic brought absentee voting

“into the spotlight” and “led to increased interest in the policies and procedures governing how

and when voters may vote absentee.” Memphis A. Philip Randolph Inst. v. Hargett, 978 F.3d

378, 381 (6th Cir. 2020).

I next look to how these speech interests intersect with the activity of distributing

absentee-ballot applications, considering whether this activity necessarily involves core political

speech. Given the factual nature of this inquiry, see Meyer, 486 U.S. at 421 n.4, and that we are

reviewing the grant of a motion to dismiss, I accept Plaintiffs’ nonconclusory factual allegations

as true and consider their import, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiffs

allege that they “engage[] in voter outreach efforts . . . through voter identification, education,

and mobilization drives,” R. 1, PID 3, and that their efforts “will necessarily include discussing

with voters the benefits of voting by mail, reminding eligible absentee voters about application

No. 22-5028 Lichtenstein v. Hargett Page 44

and ballot submission deadlines and requirements, and following up with voters to ensure their

ballots were received, cast and counted,” id. at PID 9.

Based on these allegations, Plaintiffs’ intended distribution activity “involves the type of

interactive communication concerning political change that is appropriately described as ‘core

political speech,’” Meyer, 486 U.S. at 421–22. The activity “of necessity involves both the

expression of a desire for political change and a discussion of the merits of the proposed

change,” id. at 421—that absentee voting is good for the electorate and that a person should vote

absentee if eligible. “[I]n almost every case,” it appears, giving someone an absentee-ballot

application “involve[s] an explanation of the nature of [voting absentee] and why its advocates

support [doing so],” id.

Thus, Tennessee’s law “restricts political expression,” id. at 423. The law bans Plaintiffs

from engaging in an activity that inherently involves core political speech. And this burden is

even more significant because Plaintiffs allege that distributing absentee-voting applications is

the most informative and effective means for them to convey their message. “Having the ability

to provide voters with the absentee ballot application is necessary,” Plaintiffs allege, “because

[they] have found that their voter engagement efforts are significantly more effective when they

are able to provide voters with all of the information and requisite forms they might need to

register to vote, or to request to vote absentee.” R. 1, PID 9; cf. Meyer, 486 U.S. at 424

(plaintiffs were permitted to pay workers to engage citizens on the issue but not to collect

signatures)); McCullen, 573 U.S. at 489.10

2.

Reinforcing this analysis, the Fifth Circuit would appear to take the same approach. In

Voting for America, Inc. v. Steen, plaintiffs challenged restrictions on who could serve

10In McCullen, the Court addressed the burden placed on abortion protestors by a buffer zone:

“Respondents also emphasize that the Act does not prevent petitioners from engaging in various forms of ‘protest’—

such as chanting slogans and displaying signs—outside the buffer zones. That misses the point. Petitioners are not

protestors. They seek not merely to express their opposition to abortion, but to inform women of various

alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only

through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a

waving hand than a direct greeting or an outstretched arm.” 573 U.S. at 489 (citation omitted).

No. 22-5028 Lichtenstein v. Hargett Page 45

as volunteer deputy registrars in the context of voter-registration drives. 732 F.3d 382, 389 (5th

Cir. 2013). The court concluded that the restrictions, which limited who could “collect, review

for completeness, and deliver completed voter registration forms,” did not burden “core political

speech,” noting that these activities were “non-expressive” and that there was no restriction on

“who [could] advocate pro-voter-registration messages, the manner in which they [might] do so,

or any communicative conduct.” Id. at 390–91 (citation omitted). However, the court assumed

that the First Amendment protects the distribution of registration forms:

The state does not deny that some voter registration activities involve speech—

“urging” citizens to register; “distributing” voter registration forms; “helping”

voters to fill out their forms; and “asking” for information to verify that

registrations were processed successfully. Texas neither regulates nor limits any

of this constitutionally protected speech.

Id. at 389 (emphasis added). This reasoning supports that Tennessee’s law burdens Plaintiffs’

core political speech.

Additionally, I note the undeniable parallels between Plaintiffs’ intended activity

and pamphlet distribution, a “classic form[] of speech that lie[s] at the heart of the First

Amendment.” Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 377 (1997). The

majority appears to recognize these parallels as well, although it rejects the comparison.

See Maj. Op. 15 (“One might analogize the form’s distribution to that of a political pamphlet.”).

In Buckley, the Court noted that “[i]nitiative-petition circulators . . . resemble handbill

distributors, in that both seek to promote public support for a particular issue or position.”

525 U.S. at 190–91. The same can be said of Plaintiffs, who wish to promote engagement in the

democratic process through absentee voting by distributing absentee-ballot applications. And

Plaintiffs “resemble handbill distributors” even more than the petition circulators in Buckley; like

pamphlet distributors, Plaintiffs wish to distribute printed information about a pertinent political

issue. By the nature of the application and what appears on Tennessee’s precise form, the state’s

absentee-ballot applications inform voters directly about the existence of absentee voting, the

steps to apply, who is eligible to vote this way, and the deadline for submission. Thus, Plaintiffs’

intended activity is substantially similar to pamphlet distribution, which the First Amendment

fiercely protects. See Schenk, 519 U.S. at 377.

No. 22-5028 Lichtenstein v. Hargett Page 46

Relatedly, as Amicus Cato Institute points out, this reasoning is consistent with broader

traditions for protecting access to the law. See Br. of Amicus Cato Inst. 3–4, 9–12. In the

copyright context, the Court has explained that “‘[e]very citizen is presumed to know the law,’

and ‘it needs no argument to show . . . that all should have free access’ to its contents.” Georgia

v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1507 (2020) (second alteration in original)

(quoting Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886)); see also Veeck v. S. Bldg. Code Cong.

Int’l, Inc., 293 F.3d 791, 799 (5th Cir. 2002) (“[P]ublic ownership of the law means precisely

that ‘the law’ is in the ‘public domain’ for whatever use the citizens choose to make of it.

Citizens may reproduce copies of the law for many purposes, not only to guide their actions but

to influence future legislation, educate their neighborhood association, or simply to amuse.”).

Similarly, access to government forms is intertwined with the ability “to petition the government

for a redress of grievances,” as explicitly enshrined in the First Amendment. U.S. Const. amend.

I. In Cato’s words, “[a]llowing the government to criminalize the distribution of publicly

available government forms . . . set[s] a dangerous precedent,” which “should give th[is] [c]ourt

pause.” Br. of Amicus Cato Inst. 1.

3.

For the reasons discussed, Plaintiffs’ allegations support the use of “exacting scrutiny” to

evaluate Tennessee’s law, making resolution on the pleadings inappropriate. Tennessee “must

come forward with compelling evidence” showing that the law is “narrowly tailored and

advance[s] a compelling state interest.” Citizens for Tax Reform v. Deters, 518 F.3d 375,

387 (6th Cir. 2008). And as the majority concedes, Plaintiffs raise “fair points” concerning the

statute’s tailoring, which “might have merit” under “anything like strict scrutiny.” Maj. Op. 32.

Therefore, I would allow the case to proceed for resolution on a full record, as is fitting in light

of the numerous issues subject to factual inquiry.11

11To the extent there is any question that Meyer as later interpreted in Buckley requires some inquiry into

the degree of the burden before applying exacting scrutiny, see Citizens for Tax Reform, 518 F.3d at 382, exacting

scrutiny remains appropriate because, as addressed, Tennessee’s law completely bars Plaintiffs from an activity that

inherently involves core political speech and bars them from their most effective form of advocacy. See Buckley,

525 U.S. at 192 n.12 (“Our decision is entirely in keeping with the ‘now-settled approach’ that state regulations

‘impos[ing] “severe burdens” on speech . . . [must] be narrowly tailored to serve a compelling state interest.’”

(alterations in original) (quoting id. at 206 (Thomas, J., concurring))).

No. 22-5028 Lichtenstein v. Hargett Page 47

C.

I do not agree with the majority’s arguments regarding the appropriate level of scrutiny.

According to the majority, “Tennessee’s ban prohibits an act: distributing a government form,”

and “[t]his act qualifies as conduct, not speech.” Maj. Op. 2 (emphasis added). The majority

also notes that “Plaintiffs’ underlying get-out-the-vote activities . . . qualif[y] as ‘core political

speech,’” id. at 12 (quoting Meyer, 486 U.S. at 422), but concludes that there is no First

Amendment problem because “nothing in [Tennessee’s statute] in any way restricts the

Plaintiffs’ actual oral or written speech about the ‘benefits’ of absentee voting,” id. (emphasis

added) (quoting R. 1, PID 9).

This reasoning contradicts Meyer because, applied to the facts of that case, it suggests

that Colorado’s ban on paid circulators merely burdened conduct. After all, signature-gathering

could be termed “conduct, not speech,” and Colorado’s law did not prevent the plaintiffs from

spending money in other ways to support their “underlying . . . activities.” Id. at 2, 13. But this

is not how the Court approached the case. The Court recognized that circulating petitions “of

necessity involve[d] . . . interactive communication concerning political change,” and thus the

Court treated burdens on this activity as burdens on core political speech. Meyer, 486 U.S. at

421–22. I follow that same reasoning here.

The majority too easily distinguishes Plaintiffs’ activity from pamphlet distribution. See

Maj. Op. 15–16. First, the majority states that “the Court has long treated [pamphlet]

distribution (or more precisely, the distribution of a pamphlet’s expressive contents) as speech

itself,” not conduct, and “Plaintiffs did not make this analogy.” Id. at 15. This reasoning misses

Plaintiffs’ point: Distribution involves conduct but because that conduct is necessarily

intertwined with political speech and expressive intent, exacting scrutiny should apply to the

entire activity. See Meyer, 486 U.S. at 421. The majority’s reasoning comes dangerously close

to suggesting that distribution of political pamphlets could be restricted as mere conduct.

Technically, the act of giving another person a piece of paper—whether a pamphlet or an

absentee-ballot application—is conduct, not speech, and the majority seems to recognize this.

See Maj. Op. 15. The Court actually refers briefly to pamphlet distribution as “conduct” in

McIntyre. 514 U.S. at 339; cf. Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)

No. 22-5028 Lichtenstein v. Hargett Page 48

(referring to pamphlet distribution as an “activity” that “is a form of communication”). But

sensibly, the McIntyre Court did not follow O’Brien; it followed Meyer.

Second, the majority notes that “the application is a form that the State creates” and “[i]f

the form’s contents were speech, the speech might well be the government’s,” not Plaintiffs’.

Maj. Op. 16. To be sure, that the application is a government form is likely important in

considering the government’s interest in restricting distribution and the law’s tailoring. But

Plaintiffs may still assert a speech interest in sharing the form and its contents. To illustrate,

McIntyre applied exacting scrutiny to a ban on anonymous pamphlet distribution, but I doubt the

Court’s analysis would have changed had the plaintiff, who distributed literature before a

schoolboard meeting, see 514 U.S. at 337, instead distributed local government reports on school

spending.

Third, the majority asserts that, “[i]n any event, the Plaintiffs have argued that the banned

conduct is entitled to rigorous protection only because it is intertwined with speech . . . or

because the relevant ban is content[-]based.” Maj. Op. 16. But this does not make caselaw on

pamphlet distribution any less relevant. Pamphlet distribution stands as an example of an

activity that involves aspects of conduct but is treated as speech for very good reason. Cf. Lovell,

303 U.S. at 452 (rejecting argument that a restriction on distributing pamphlets is allowed

because publication still permitted).

D.

Because I conclude that Tennessee’s law restricts core political speech, I agree that

Anderson-Burdick does not apply. See Mazo v. N.J. Sec’y of State, 54 F.4th 124, 142–43 (3d Cir.

2022). But the Sixth Circuit has not cabined Anderson-Burdick as tightly as the majority

suggests, see, e.g., Daunt v. Benson, 956 F.3d 396, 407 (6th Cir. 2020) (reasoning that “the

Anderson-Burdick framework is used for evaluating ‘state election law[s]’” and applying to

challenge to Michigan’s redistricting commission (alteration in original) (quoting Burdick

v. Takushi, 504 U.S. 428, 441 (1992)), nor has the Supreme Court done so, see McIntyre, 514

U.S. at 345 (finding case not suitable for Anderson-Burdick balancing because law did “not

control the mechanics of the electoral process”).

No. 22-5028 Lichtenstein v. Hargett Page 49

E.

Turning to the majority’s expressive-conduct analysis, I am less skeptical about whether

distributing absentee-ballot applications qualifies as expressive conduct. It seems plain that

giving someone an absentee-ballot application with even the smallest amount of context—verbal

or not—conveys a pro-vote-by-mail message. Cf. Maj. Op. 23–25. I also believe that the

majority goes too far in characterizing intermediate scrutiny for expressive conduct as nearly

equivalent to rational-basis review, given that the Supreme Court has never instructed courts to

apply rational-basis review to these challenges, despite rational-basis review being readily

available as an alternative. See id. at 26–30.

Moreover, I do not agree that “[t]he Supreme Court has never applied exacting

free-speech scrutiny to laws that bar conduct based on the harm that the conduct causes apart

from the message it conveys,” id. at 8, and that Plaintiffs are not entitled to heightened scrutiny

simply because Tennessee’s law “does not target the conduct because of the ‘idea’ that the

Plaintiffs want to express,” id. at 12. Even when a law “does not focus on the ideas expressed by

persons or groups subject to its regulations,” we apply heightened scrutiny if the government’s

interests are based on “suppressing communication.” Buckley v. Valeo, 424 U.S. 1, 17 (1976).

Nevertheless, Plaintiffs have not shown that Tennessee fails to assert “an interest . . . unrelated to

the suppression of expression,” Texas v. Johnson, 491 U.S. 397, 407 (1989).

III.

Additionally, I would reverse the district court’s dismissal of Plaintiffs’

expressive-association claim. “It is beyond debate that freedom to engage in association for the

advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due

Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP

v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). “[T]he practice of persons sharing

common views banding together to achieve a common end is deeply embedded in the American

political process. . . . Its value is that by collective effort individuals can make their views

known, when, individually, their voices would be faint or lost.” Citizens Against Rent

Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290, 294 (1981).

No. 22-5028 Lichtenstein v. Hargett Page 50

We evaluate expressive-association claims using a three-part process:

The first determination is whether a group is entitled to protection. A group need

not associate “for the ‘purpose’ of disseminating a certain message” to be

protected; it is enough that a group “engage[s] in expressive activity that could be

impaired.” . . . Second, courts ask whether the government action in question

“significantly burden[s]” the group’s expression, affording deference “to an

association’s view of what would impair its expression.” Lastly, the

government’s interest in any restriction must be weighed against plaintiff’s right

of expressive association.

Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010) (citations omitted) (quoting Boy

Scouts of Am. v. Dale, 530 U.S. 640, 653, 655 (2000)).

I agree with the majority that Plaintiffs “easily make it past our first step,” Maj. Op. 34,

but diverge at step two and conclude that Plaintiffs have sufficiently pleaded that Tennessee’s

law “significantly burden[s]” their expression, id. at 35 (alteration in original) (quoting Dale, 530

U.S. at 653). The majority “do[es] not see how” the law “affects the Plaintiffs’ ability to

associate with others in order to create or convey a message,” citing examples where the Court

has found unconstitutional burdens and reasoning that Tennessee’s law does not compel

Plaintiffs to accept members, discourage membership, or deny a benefit broadly available to

others. Id. The majority also notes that “Plaintiffs argue that they ‘associate’ with members in

the community through their ‘civic engagement activity’ and that” the law “limits their ability to

undertake this speech,” but reasons that the alleged interference occurs regardless whether

people act individually or as a group, and so concludes that “the interference does not affect

[Plaintiffs’] ability to associate at all.” Id. at 36 (quoting Appellants’ Reply Br. 16).

This reasoning is too narrow in its application of the Supreme Court’s cases. The

majority correctly acknowledges that “[a] government can burden the right to associate in a

‘number’ of ways,” id. at 35 (quoting Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2382

(2021) (plurality opinion)), but fails to consider the diversity of possible burdens, instead only

comparing Plaintiffs’ claim with the three scenarios mentioned above. Cf. Dale, 530 U.S. at 648

(explaining that unconstitutional burdens on association “may take many forms”). Further, the

majority fails to acknowledge that “we must . . . give deference to an association’s view of what

would impair its expression.” Id. at 653 (emphasis added).

No. 22-5028 Lichtenstein v. Hargett Page 51

The Court has recognized a wider variety of associational burdens than the majority

suggests. “In the domain of these indispensable liberties, whether of speech, press, or

association, . . . abridgement of such rights, even though unintended, may inevitably follow from

varied forms of governmental action.” Patterson, 357 U.S. at 460. For example, the Court held

that a restriction on soliciting legal clients unconstitutionally interfered with the NAACP’s

associational rights because “the litigation [the NAACP] assists, while serving to vindicate the

legal rights of members of the American Negro community, at the same time and perhaps more

importantly, makes possible the distinctive contribution of a minority group to the ideas and

beliefs of our society.” NAACP v. Button, 371 U.S. 415, 431 (1963). Similarly, the Court

determined that a restriction on boycotts, asserted to be an economic protection measure,

unconstitutionally interfered with the NAACP’s associational rights because the organization’s

boycott “clearly involved constitutionally protected activity,” noting that “[t]hrough speech,

assembly, and petition—rather than through riot or revolution—petitioners sought to change a

social order that had consistently treated them as second-class citizens.” NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 911 (1982).

With this background, Plaintiffs have pleaded enough to show a “significant burden” on

their expressive association. In addition to what they describe in their Reply Brief, as recounted

by the majority, Plaintiffs allege that Tennessee’s law “prohibits them from fully engaging their

members and other eligible absentee voters,” and from “facilitating their ability to obtain an

absentee ballot application and vote by mail.” R. 1, PID 11. They also allege that the law

“hampers [their] ability to plan and execute voter engagement strategies.” Id. Giving these

allegations the “deference” the Supreme Court tells me I must, Dale, 530 U.S. at 653, it seems to

me “hardly a novel perception that” restricting the ability to share voting forms “may constitute

. . . a restraint on freedom of association,” Patterson, 357 U.S. at 462 (concluding that law

compelling disclosure of NAACP’s membership lists restricted the freedom of association

because it discouraged membership).

As alleged, Tennessee’s law hinders the ability of Plaintiffs to share information with

their members. This ability is essential to any associational enterprise, especially one engaged in

expression. And importantly, we must consider Tennessee’s law “[i]n the context of [Plaintiffs’]

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objectives.” Button, 371 U.S. at 429. In Button, the Court recognized that, for the NAACP,

“litigation is not a technique of resolving private differences; it is a means for achieving the

lawful objectives of equality of treatment by all government, federal, state and local, for the

members of the Negro community in this country,” and thus it was “a form of political

expression.” 371 U.S. at 429. So too here—Plaintiffs’ intended distribution of absentee-ballot

applications is more than a simple act; it provides the means for engaging members as part of

Plaintiffs’ mission to promote a message that supports participation in our democracy through

voting absentee. Tennessee’s law directly blocks Plaintiffs from sharing a form with members

who need it to vote—even if they have asked Plaintiffs for help—or with members as a pure

educational exercise to help them understand their rights and how to assist others in voting

absentee. Plaintiffs thus satisfy the first two steps of our expressive-association inquiry.

The third step weighs Plaintiffs’ rights against the government’s interests. See Miller,

622 F.3d at 538. The freedom of expressive association can “be overridden ‘by regulations

adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be

achieved through means significantly less restrictive of associational freedoms.’” Dale, 530 U.S.

at 648 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)). However, Tennessee has

made no showing at this stage that its law satisfies this tailoring. Accordingly, I find resolution

of Plaintiffs’ expressive-association claims on the pleadings inappropriate, and I would reverse

the district court’s dismissal of this claim.

IV.

For the foregoing reasons, I dissent.