Petition for Writ of Certiorari — Nicholas Lupo, et al., Petitioners v. Tre Hargett, Tennessee Secretary of State, et al.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 24-6052

*------------FILED

NICHOLAS LUPO ET AL,

)

)

May 7, 2025

KELLY L. STEPHENS, Clerk

._________ J

Plaintiff-Appellants,)

ON APPEAL FROM THE

UNITED STATES

DISTRICT COURT FOR

TRE HARGETT,

) THE MIDDLE DISTRICT

Tennessee Secretary of

) OF TENNESSEE

State, in his official

)

capacity, and MARK GOINS )

Tennessee Elections

)

Division, Coordinator of

)

Elections, in his official

)

capacity,

)

v.

)

)

Defendants-Appellees,

)

ORDER

Before: SUTTON, Chief Judge; COLE and CLAY,

Circuit Judges.

Nicholas Lupo, Matthew Stoneman and David

Price, proceeding pro se, appeal the district court's

judgement dismissing their civil action pursuant to

Federal Rule of Civil Procedure 12(b)(6). This case has

been referred to a panel of the court that, upon

examination, unanimously agrees that oral argument is

not needed. See Fed. R. App. P. 34(a). Because the

plaintiffs failed to state a claim, we affirm.

In September 2024, the plaintiffs filed this action,

pursuant to 42 U.S.C. § 1983, claiming that their First and

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Fourteenth Amendment rights were violated by Tre

Hargett, the Tennessee Secretary of State, and Mark

Goins, a Tennessee election official, in their official

capacities. The plaintiffs alleged that the submitted

“Nomination Papers” to the State to be placed on the

ballot as “Elector Candidates” in the 2024 presidential

election pledged to vote for Dr.Shiva Ayyadurai, an

independent candidate bom outside of the United States.

The plaintiffs claimed that the defendants denied them

placement on the ballot as presidential electors—despite

their otherwise meeting the requirements under state

law—because Dr. Ayyadurai was not eligible to run for

president because he is not a “naturally bom” United

States citizen. The crux of the plaintiffs’ argument seems

to be that, although Dr. Ayyadurai may be ineligible to

run for president, Tennessee lacked the legal authority to

exclude the plaintiffs from the ballot as electors because

a presidential election is technically used to select

electors to the Electoral College, rather than the

president and vice president directly. The plaintiffs

therefore sought damages and a declaratory judgment

that the State lacked subject-matter and personal

jurisdiction to reject them as elector candidates despite

their being pledged to an ineligible candidate and

violated their rights by doing so.

The defendants moved to dismiss under Federal

Rules of Civil Procedure 12(b)(1) and (b)(6), first arguing

that the claims were moot and barred by sovereign

immunity and that the district court should not interfere

with an election that was already underway. They also

argued that the plaintiffs failed to state a claim under

either the First or Fourteenth Amendment. The district

court disagreed as to mootness and sovereign immunity

and dismissed the complaint for failing to state a claim.

On appeal, the plaintiffs primarily argue that the

state could not deny them placement on the ballot as

presidential electors, asserting that the potential

ineligibility of their pledged candidate to hold the office

of president was prematurely decided and is irrelevant in

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any case to whether they can appear as candidates for

the Electoral College on the Tennessee ballot. In

response, the State does not reassert its jurisdiction

challenges, instead arguing that the district court

correctly determined that the plaintiffs failed to state a

First or Fourteenth Amendment claim.

Although the election is now over, the parties do

not address mootness. But because mootness implicates

the court's subject matter jurisdiction, see Davis v.

Colerain Township, 51 F.4th 164, 175 (6th Cir. 2022), we

briefly address it here. We agree with the district court

that the exception for mootness for disputes capable of

repetition, yet evading review, applies here. See Fed.

Election Comm’n v. Wis Right to Life, Inc., 551 U.S 449,

462-63 is (2007). Disputes about election laws often take

more time to resolve than the election cycle permits, and

this dispute is capable of recurring during future election

cycles. See Libertarian Party of Ohio v. Blackwell, 462 F.

3d 579, 584(6th Cir. 2006).

Turning to the merits, we review de novo a district

court's judgement granting a Rule 12(b)(6) motion to

dismiss. See Bickerstaff v. Lucarelli, 830 F 3d 388, 395-96

(6th Cir. 2016). To avoid dismissal, “a complaint must

contain sufficient factual matter, accepted as true, to

‘state a claim for relief that is plausible on its face’”

Ashcroft v. Iqbal, 556 U.S 662, 678 (2009)(quoting BellAtl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pleadings

drafted by pro se litigants are held to a less stringent

standard than those drafted by lawyers and are literally

construed, Martin v. Overton, 391 F.3d 710, 712(6th Cir.

2004), but pro se litigants are not exempt from the

requirements of the Federal Rules of Civil Procedure,

Wells v. Brown, 891 F.2d 591, 594(6th Cir. 1989).

The First Amendment prohibits states from

“abridging the freedom of speech, or of the press, or the

right of the people to peaceably assemble, and to petition

the Government for a redress of grievances.” U.S Const.

Amend. I. “Still, states may impose reasonable

restrictions on ballot access to ensure that political

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candidates can show a significant modicum of support

from

the

public... and

to

avoid

election-and-campaign-related disorder.” Green Party of

Tenn. v. Hargett, 767 F. 3d 533, 545 ( 6th Cir. 2014)

(citations omitted). Assuming that the plaintiffs’ First

Amendment rights are implicated here, we first consider

““the character and magnitude of the plaintiffs alleged

injury, “then “identify and evaluate the precise interests

put forward by the state as jurisdiction for the burden

imposed by its rule,” and, finally, “assess the legitimacy

and strength of each of those interest, ‘ as well as the

extent to which those interests make it necessary to

burden the plaintiff’s rights.’” Id. at 546(quoting Anderson

v Celebrezze, 460 U.S. 780, 788-89 (1983)).

The defendants’ decision not to place the plaintiffs

on the presidential ballot as electors was reasonable.

Although in a presidential election it is technically true

that voters select which candidates electors for president

will be sent to the Electoral College, Tennessee law

provides that the “[n]ames of electors need not appear on

the ballot, “though the “names of presidential candidates”

will appear on the ballot. Tenn Code Ann.§ 2-5-208(h);

see Tenn Code Ann. § 2-15-101; Ray v Blair, 343 U.S 214,

229 (1952). Moreover, Tennessee law provides that

electors must be designated by the candidate. Tenn Code

Ann. § 2-15-203. This is constitutionally permissible, as

the states are given the power to determine how

presidential electors are selected. See U.S Const. Art II §

1, cl 2. Thus, the plaintiffs, as purported elector

candidates, had no right to be personally listed on the

ballot.

Moreover, Tennessee law requires electors to cast their

ballot for the candidate to which they are pledged. See

Tenn. Code Ann. § 2-15-104(c)(l). Because the electors

and their pledged candidate are inextricably linked by

law, it is entirely reasonable for the State to prohibit the

placement of elector names on a ballot when they are

pledged to a candidate who is ineligible to hold the

office. “{AJstates legitimate interest in protecting the

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integrity and practical functioning of the political process

permits it to exclude from the ballot candidates who are

constitutionally prohibited from assuming office.” Hassan

v. Colorado, 495 F. App’x 947, 948-49 (10th Cir. 2012)

(Gorsuch, J). Inclusion on the ballot of electors who are

pledged to an ineligible candidate would serve only to

confuse and clutter the ballot. The plaintiffs seek to draw

distinction between running for and holding office, and

thus avoid this absurd result, but this distinction between

running for and holding office, and thus avoiding this

absurd result, but this distinction is specious. The State

is permitted to prevent such an incongruous result.

The plaintiffs also argue that the Supreme Court's

decision in Trump v. Anderson, 601 U.S.100(2024)(per

curiam), undermines the conclusion that the states have

the power to exclude from the ballot ineligible

presidential candidates. But that decision addressed only

whether states, as opposed to Congress, have the power

to enforce Section 3 of the Fourteenth Amendment, see

id. At 110-17(noting that the Electors Clause of Article II

does not empower states to enforce Section 3 of the

Fourteenth Amendment), and this case is not about

Section 3. It therefore does not help the plaintiffs. The

plaintiffs also seek to distance themselves from Dr.

Ayyadurai, asserting that they should not be conflated

with him and that it is their rights as electors that have

been infringed. But as discussed above, a presidential

candidate and his electors are inextricably linked under

Tennessee law.

To the extent that the plaintiffs raise a due process

claim under the Fourteenth Amendment, even if we

assume that Tennessee has an independent state office of

“elector” that is not attached to the presidential

candidate, the denial of a right to state political office is

not a liberty of poverty interest for purposes of a due

process claim. See Snowden v. Hughes, 321 U.S. 1,6-7

(1944); Mingo v. Baxter, 518 F. App’x 44,445 (6th Cir.

2013)(per curiam).

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For these reasons, we AFFIRM the district court's

judgment.

ENTERED BY ORDER OF THE

COURT

7a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NICHOLAS LUPO,

MATTHEW STONEMAN,

and DAVID PRICE

Plaintiffs,

v.

)

)

)

)

)

)

) No. 3:24-cv-01088

TRE HARGETT in his

official capacity as

Tennessee Secretary of

State, and MARK GOINS

in his official capacity

as Coordinator of

Elections,

Defendants.

)

)

)

)

)

)

)

)

)

)

ORDER

For the reasons set forth in the accompanying

Memorandum Opinion, the Motion of Defendants Tre

Hargett and Mark Goins to Dismiss (Doc. No. 13) is

GRANTED IN PART and DENIED IN PART, and this

case is dismissed under Federal Rule of Civil Procedure

12(b)(6). Plaintiffs’ Motion for Emergency Hearing (Doc.

No. 9) is DENIED AS MOOT.

This is a final order. The Clerk is directed to enter

judgment under Federal Rule of Civil Procedure 58 and

close the file.

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IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

9a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NICHOLAS LUPO,

)

MATTHEW STONEMAN, )

and DAVID PRICE

)

)

Plaintiffs,

)

)

v.

No. 3:24~cv-01088

)

)

TRE HARGETT in his

official capacity as

Tennessee Secretary of

State, and MARK GOINS

in his official capacity

as Coordinator of

Elections,

)

)

)

)

)

)

)

)

Defendants.

)

MEMORANDUM OPINION

This 42 U.S.C. § 1983 case is one of several related

election cases filed in district courts across the country.

Those cases allege that state election officials

unconstitutionally excluded electors from the November

5, 2024 general election ballot merely because their

pledged presidential candidate, Dr. Shiva Ayyadurai, is

not a “natural-bom citizen” and is ineligible to serve as

President1.

1 See, e.g., Sias v. Wav. No. 24-8747 (MAS) (RLS), 2024 WL

4505108, at *6 (D.N.J. Oct. 16, 2024); Lauters v. Evnen, No.

4:24-CV-3175, 2024 WL 4517911, at *3 (D. Neb. Oct. 17, 2024);

Rohr v, Utah. No. 2:24-cv-00659-AMA-DBP, 2024 WL 4528163

(D. Utah Oct. 18, 2024).

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In this case, Plaintiffs Nicholas Lupo, Matthew

Stoneman, and David Price, proceeding pro se, have sued

Tennessee Secretary of State Tre Hargett and

Coordinator of Elections Mark Goins (collectively,

“Defendants”) in their official capacities for declaratory

and injunctive relief. Before the Court is Defendants’

Motion to Dismiss (Doc. No. 13), which is fully briefed

and ripe for review (see Doc. Nos. 14,18, 20, 24). For the

following reasons, Defendants’ Motion will be granted.

I. FACTUAL ALLEGATIONS AND BACKGROUND2

Plaintiffs are Tennessee residents who, along with

eight other individuals (collectively, the “Elector

Candidates”), submitted “Nomination Petitions” to the

Tennessee Secretary of State “to be Electors of the

President and Vice President of the United States for

pledged independent candidate for President Dr. Shiva

Ayyadurai.” (Doc. No. 8 M 1, 4-6). The Complaint alleges

that the Nomination Papers met all the necessary

requirements under Tennessee law for the Elector

Candidates “to be officially placed on the ballot to be

Presidential Elector Candidates in the State of

Tennessee.” (Id. M2, 21-23). As part of the nomination

process, each of the Elector Candidates pledged that: “If

selected for the position of elector as a nominee of an

unaffiliated presidential candidate, I agree to serve and to

mark my ballot for [Dr. Ayyadurai] and for that

candidate’s vice- presidential running mate,” Crystal Ellis.

(Id. 8).

On August 14, 2024, the Office of the Tennessee

Secretary of State issued a “Receipt of Filing” letter

confirming that it “received the nominating petition for

Shiva Ayyadurai as a candidate for President of the

United States in the general election to be held on

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November 5, 2024.” (Id. 23). The letter further provided

that Dr. Ayyadurai “will be notified once it has been

determined that all requirements have been met for

placing the candidate’s name on the ballot,” and “[i]f

qualified, [Dr. Ayyadurai’s] name will appear on the

ballot[.]” (Id.). Plaintiff Lupo signed this letter. (Id.).

At some point thereafter, attorneys for the

Tennessee Secretary of State determined that Dr.

Ayyadurai was ineligible to serve as President because he

was not “naturally bom” in the United States3. (Id. U U 25,

29). On September 4, 2024, Defendant Goins sent a letter

to Dr. Ayyadurai informing him that he would not be

placed on the Tennessee ballot. (Id. 1[1[ 14, 27). A

different

election

official,

Lena

Russomanno,

simultaneously informed Lupo and another Elector

Candidate that Dr. Ayyadurai would not be on the ballot.

(Id.

25-26). On September 5, 2024, Lupo responded to

Russomanno that the Elector Candidates themselves “are

running for the Office

of Elector in the State of

Tennessee,” and that the Tennessee Secretary of State

“had no right to [] remove them from the ballot based on

the ‘qualifications’ of their Pledged Candidate for

President.” (Id. 1f1[ 25, 28 (emphasis added)). Lupo called

this decision an “ignorant and moronic ruling” and

“demanded he and the [other] Elector Candidates be put

back on the ballot immediately.

” (Id. 28). Later that day, Goins emailed Lupo that: “ The

2 The Court draws these facts from the September 20, 2024

Verified Complaint (Doc. No. 8) and assumes the truth of

those facts for purposes of ruling on the instant motion. See

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

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decision was made after attorneys within [the Tennessee

Secretary of State’s] office looked at the issue. I

understand you intend to sue but the decision has been

made.” (Id.

29). On September 6, 2024, Lupo

responded that: “Your attorneys are either DUMB or

intentionally violating the Law,” and “[y]our ignorance

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

Plaintiffs then filed a three-count Complaint

under § 1983 for declaratory and injunctive relief against

Goins and Hargett in their official capacities. The

operative Complaint4 alleges that Defendants violated

the Elector Candidates’ First and Fourteenth

Amendment rights by refusing to place their names on

the Tennessee general election ballot. (Id. If If 1, 9, 55). In

terms of their request for relief, Plaintiffs have asked the

Court to issue: (1) a declaratory judgment stating that

Defendants lacked “subject matter jurisdiction” to reject

Dr. Ayyadurai and the Elector Candidates from the

November 5, 2024 general election ballot; and (2) an

injunction against Defendants to both “nullify their

decision to remove the Elector Candidates from the

ballot, “ and to “prevent Defendants from printing

3 According to at least one signed Complaint in another case,

Dr. Ayyadurai was bom in Mumbai, India, and became a

naturalized American citizen in November 1983. See

Ayyadurai v. Garland, No. 23-2079 (LLA) (D.D.C. 2023), Doc.

No. 1 TH] 5, 8; see also Doc. No. 8 27 (noting that Dr.

Ayyadurai has publicly sated he was bom outside of the

United States).

4 Plaintiffs indicated in their sur-reply that they would be filing

a motion for leave to file an amended complaint. (Doc. No. 24

at 5-6). However, Plaintiffs still have not done so, and it

would not be pmdent to delay this case further while

Plaintiffs’ “Motion for Emergency Hearing” related to the

November 5, 2024 election remains pending.

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ballots for the November 5, 2024 general election” that

do not include the Elector Candidates. (Id41J

66,78,83). Defendants responded with the instant

motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and (b)(6). (See Doc. Nos. 13-14).

n. LEGAL STANDARDS

A.

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

A defendant may move under Rule 12(b)(1) to

dismiss a case for lack of subject matter jurisdiction.

See Fed. R. Civ. P. 12(b)(1). To survive a Rule 12(b)(1)

motion, “the plaintiff has the burden of proving

jurisdiction[.]” Wayside Church v. Van Buren Cntv.. 847

F.3d 812, 817 (6th Cir. 2017) (quoting Rogers v. Stratton

Indus.. Inc.. 798 F.2d 913, 915 (6th Cir. 1986)). “A Rule

12(b)(1) motion for lack of subject matter jurisdiction

can challenge the sufficiency of the pleading itself

(facial attack) or the factual existence of subject

matter jurisdiction (factual attack).” Cartwright v.

Gamer, 751 F.3d 752, 759 (6th Cir. 2014) (citing United

States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). In

considering a facial attack, the Court must take all the

allegations in the Complaint as true and determine

“whether the plaintiff has alleged a basis for subject

matter jurisdiction.” Id. (emphasis added). But when

the defendant makes a factual attack, the Court may

consider and weigh evidence, including evidence

outside of the pleadings, to determine whether the

plaintiff has “carrie[d] the burden of establishing

subject matter jurisdiction by a preponderance of the

evidence.” Ready for the World Inc, v. Riley. No.

19-10062, 2019 WL 4261137, at *2 (E.D. Mich. Sept. 9,

2019) (citing McNutt v. Gen. Motors Acceptance Coro.

of Ind., 298 U.S. 178, 189 (1936)).

B.

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

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A defendant may also move under Rule 12(b)(6)

to dismiss a case for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive

a Rule 12(b)(6) motion, the Complaint must include a

“short and plain statement of the claim showing that the

pleader is entitled to relief.” Ryan v, Blackwell, 979 F.3d

519, 524 (6th Cir. 2020) (quoting Fed. R. Civ. P. 8(a)(2)).

When determining whether the Complaint meets this

standard, the Court must accept the Complaint’s factual

allegations as true, draw all reasonable inferences in the

plaintiff’s favor, and “take all of those facts and

inferences and determine whether they plausibly give

rise to an entitlement to relief.” Doe v. Baum. 903 F.3d

575, 581 (6th Cir. 2018); see also Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009). Moreover, the Court must

determine only whether “the claimant is entitled to offer

evidence to support the claims,” not whether the

plaintiff can ultimately prove the facts alleged.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)

(quoting Scheuer v. Rhodes, 416 U.S. 232 (1974)). “While

the complaint does not need detailed factual allegations,

a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and

conclusions” or “a formulaic recitation of a cause of

action’s elements[.]” Blackwell, 979 F.3d at 524 (internal

quotation marks omitted) (quoting Bell Atl. Corp, v.

Twombly, 550 U.S. 544, 555 (2007)).

m.

ANALYSIS

It is difficult to discern the exact nature of

Plaintiffs’ allegations, but, as in other related cases,

their “claims seem to hinge on the idea that they’re the

actual candidates, they’re the ones who’ve been kept off

the ballot, and their actual pledged candidate really

doesn’t have anything to do with it.” See Lauters, 2024

WL 4517911, at *3; see also (Doc. No. 18 at 6-8).

Additionally, Plaintiffs appear to argue that they are

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entitled to run for the “office of Electors for president

and vice president,” and that Defendants acted without

jurisdiction and “went after the wrong person”when

they excluded Plaintiffs’ names from the Tennessee

general election ballot. (Doc. No. 18 at 20).

Defendants respond that this Court should

dismiss Plaintiffs’ claims because (1) this case is moot,

(2) Plaintiffs’ claims are barred by sovereign immunity,

(3) Plaintiffs fail to allege a First or Fourteenth

Amendment violation, and (4) issuing an injunction on

the eve of an election would violate the Purcell

principle. Because mootness and sovereign immunity

relate to subject matter jurisdiction, the Court is

required to address those issues first before moving to

the others. See Moir v. Greater Cleveland Reg’l Transit

Auth., 895 F.2d 266, 269 (6th Cir. 1990) (“[W]e are bound

to consider the 12(b)(1) motion first, since the Rule

12(b)(6) challenge becomes moot if this court lacks

subject matter jurisdiction.”); see also KNC Invs., LLC v.

Lane’s End Stallions, Inc., 579 F. App’x 381, 383 (6th Cir.

2014) (a motion to dismiss for mootness is properly

characterized as a motion to dismiss under Rule

12(b)(1) for lack of subject matter jurisdiction);

Geomatrix, LLC v. NSF Int’l, 82 F.4th 466, 478 (6th Cir.

2023) (noting that “sovereign immunity is a

jurisdictional defect that should be addressed under

Rule 12(b)(1)”).

A.

Mootness

Defendants first argue that this case should be

dismissed under Rule 12(b)(1) as moot because the

November 5, 2024 ballot has already been finalized and

mailed to military personnel, and therefore “the time for

any ballot changes has come and gone.”5 (Doc. No. 14

at 4). Plaintiffs respond that the Supreme Court has held

multiple times that “ballot access constitutional cases,”

like this one, “are not moot” even if the election itself is

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over. (Doc. No. 18 at 11-12). The Court agrees with

Plaintiffs.

Under Article III of the Constitution, federal

courts only have subject matter jurisdiction over

“actual, ongoing controversies.” Mwasaru v. Napolitano,

619 F.3d 545, 549 (6th Cir. 2010) (citation omitted).

“[W]hen the issues presented are no longer ‘live’ or the

parties lack a cognizable interest in the outcome,” then

the case becomes moot and the Court lacks jurisdiction.

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)

(citation and internal quotation marks omitted). “The

heavy burden of demonstrating mootness rests on the

party claiming mootness.” Cleveland Branch, NAACP v.

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

As relevant here, “[a]n exception to the mootness

doctrine exists for wrongs that are ‘capable of

repetition, yet evading review.’” Libertarian Party of

Ohio v. Blackwell, 462 F.3d 579, 584 (6th Cir. 2006)

(quoting Los Angeles Cntv. v. Davis. 440 U.S. 625, 631

(1979)). This exception “applies when (1) the challenged

action is too short in duration to be fully litigated prior

to its cessation or expiration and (2) there is a

reasonable expectation or a demonstrated probability

that the controversy will recur.” Id. The first prong is

5 An argument “that Plaintiff’s requested declaratory and

injunctive relief are moot constitute [s] a factual attack on

subject matter jurisdiction.” Duren v. Byrd, 2021 WL 3848105,

at *5 (M.D. Tenn. Aug. 26, 2021) (citations omitted).

college votes to a presidential candidate who is

deemed ineligible to serve as President. Given that the

standard for the second prong of this exception is

“somewhat relaxed ... in election cases,” the Court

finds that this controversy is “capable of repetition, yet

evading review” and not moot. See id. (citation

omitted); see also Norman v. Reed. 502 U.S. 279,

704-05 (1992)).

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easily satisfied here because disputes about

election laws “almost always take more time to resolve

than the election cycle permits.” See id. (citations

omitted). The Court finds that the second prong also is

satisfied because the issues in this case are capable of

reocurring.

For example, there is a reasonable expectation

that these or other similarly situated elector candidates

could run for the office in future Tennessee general

elections. See id. It is also reasonably likely that some

elector candidates in the future will pledge their

electoral

B. Sovereign Immunity

Defendants next argue that the Court does not

have subject matter jurisdiction over Plaintiffs claims

because sovereign immunity shields them from this

lawsuit. 6 (Doc. No. 14 at 6- 7). Sovereign immunity

under the Eleventh Amendment generally deprives

federal courts of subject matter jurisdiction when a

citizen sues a State or state official in his official

capacity. Russell v. Lundergan-Grimes, 784 F.3d 1037,

1046 (6th Cir. 2015) (noting that a “suit against a state

official in his or her official capacity ... is a suit against

the State itself’). “There are three exceptions to a state’s

sovereign immunity: (1) when the state has consented to

suit; (2) when the exception set forth in Ex parte Young .

6 An assertion of sovereign immunity may constitute either a

facial or factual attack on jurisdiction depending on the

argument. See L.C. v. United States, 83 F.4th 534, 542 (6th Cir.

2023). Here, the Court finds that Defendants’ sovereign

immunity argument is best characterized as a facial attack

because it challenges Plaintiffs’ request for relief without

disputing the facts alleged in the Complaint. See id.

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. . applies; and (3) when Congress has clearly and

expressly abrogated the state’s immunity.” Puckett v.

Lexington-Fayette Urban Cnty. Gov’t, 833 F.3d 590, 598

(6th Cir. 2016) (citation omitted). Because Defendants

have not consented to suit, and Congress has not

clearlyand expressly abrogated Tennessee’s immunity,

only the second exception is at issue here. The doctrine

set forth in Ex parte Young, 209 U.S. 123 (1908) “allows

plaintiffs to bring claims for prospective relief against

state officials sued in their official capacity to prevent

future federal constitutional or statutory violations.”

Boler v. Earley, 865 F.3d 391, 412 (6th Cir. 2017)

(emphasis added). This doctrine does not extend to

retroactive relief. Id. To determine if Ex parte Young

applies, the Court “need only conduct a straightforward

inquiry into whether the complaint alleges an ongoing

violation of federal law and seeks relief properly

characterized as prospective.” Id. (citations, internal

quotation marks, and alterations omitted).

Defendants contend Plaintiffs are seeking purely

retroactive relief—and therefore Ex parte Young does

not apply—because this case is about Defendants’

“isolated past” decision not to place Plaintiffs’ names on

the Tennessee general ballot. (Doc. No. 14 at 6-7).

Plaintiffs have not responded substantively to this

argument. (See Doc. No. 18 at 12). Nevertheless, the

Court disagrees with Defendants and finds that Plaintiffs

do, in fact, seek prospective relief in this case.

Specifically, Plaintiffs seek an injunction directing

Defendants to put the Elector Candidates’ names on the

November 5, 2024 election ballot, “certify all 11 Elector

Candidates for the offices of independent Electors for

President and Vice President,” and stop printing

additional ballots without their names. (See Doc. No. 8

H 3, 66 (2)(b), 77(2)(c), 83(2)(c)). As such, the Ex Parte

Young doctrine applies, and Defendants are not entitled

to sovereign immunity over Plaintiffs’ claims.

C.

Constitutional Claims

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Moving to the merits, Defendants contend that

this Court should dismiss the Complaint under Rule

12(b)(6) because Plaintiffs fail to state a constitutional

claim upon which relief may be granted. (Doc. No. 14 at

8-13). Although the Complaint often groups Defendants’

conduct as violating both the “First and Fourteenth

Amendment,” (see Doc. No. 8 TT 1, 9, 55), the Court will

address these claims separately. As explained more fully

below, the Court does not find that the Complaint

plausibly alleges a constitutional violation to survive

Defendants’ Rule 12(b)(6) motion, and therefore

Plaintiffs are not entitled to the declaratory or injunctive

relief they have requested in this case.

1.

First Amendment

The Complaint alleges that Defendants violated

Plaintiffs’ First Amendment right “to support the

candidates of their choice,” “petition voters,” “associate

as Electors with a political campaign,” and have their

own names placed on the Tennessee general election

ballot. 7 (Doc. No.18 If If 15, 58). The First Amendment

prohibits States from enforcing laws “abridging the

freedom of speech, or of the press, or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances.” U.S. Const,

amend. I. First Amendment rights are not absolute,

however, and “states

7 Plaintiffs further allege that Defendants’ actions somehow

jeopardized “the First Amendment rights of all voters that

signed the 11 Elector Candidates’ petitions for their right to

nominate and to vote for Electors of their choice at the

November 5, 2024 general election.” (Doc. No. 8 If59). The

20a

Court need not entertain this argument further because it

does not find, and Plaintiffs do not argue, that Plaintiffs have

standing to assert a claim under § 1983 on behalf of these

unnamed Tennessee voters. See Stein v. Cortes, 223 F. Supp.

3d 423, 433 (E.D. Pa. 2016).

may impose reasonable restrictions on ballot access to

ensure that political candidates can show a significant

modicum of support from the public, and to avoid

election- and campaign-related disorder.” Green Party of

Tennessee v. Hargett, 767 F.3d 533, 545 (6th Cir. 2014)

(citation and internal quotation marks omitted); Munro

v. Socialist Workers Party. 479 U.S. 189, 193 (1986).

“Moreover, a State has an interest, if not a duty, to

protect the integrity of its political processes from

frivolous or fraudulent candidacies.” Bullock v. Carter,

405 U.S. 134, 145 (1972) (citation omitted). “And that

interest has

consistently supported excluding

candidates from the ballot when they are indisputably

ineligible for the office to which they aspire[.]” Lauters.

2024 WL 4517911, at *5.

As an initial matter, notwithstanding their zeal,

Plaintiffs’ First Amendment claim does not square with

Tennessee law or the practical reality of presidential

elections. “[P] residential elections in the United States

are indirect—it’s the Electoral College that casts the

ballots

which

actually,

directly

elect

the

President”—“[b]ut it’s also generally well-understood

that modem presidential elections are about the

presidential candidates, not the people forming the

Electoral College.” Lauters, 2024 WL 4517911, at *4

(citing U.S. Const. Art. II, 1, IfH 2-3). Tennessee law

reflects this understanding and expressly provides that

the “[n]ames of electors need not appear on the ballot."

Tenn. Code Ann. § 2-5-208(h) (emphases added).

21a

Instead, only the “names of presidential candidates” are

placed on the ballot, and a vote for a specific

presidential candidate is counted as a vote for the

electors pledged to that candidate. Id.; see also Tenn.

Code. Ann. § 2- 15-101; Rav v. Blair, 343 U.S. 214, 229

(1952). There is nothing unconstitutional about

Tennessee’s election practice because “Article two,

section one of the Constitution authorizes a state

legislature to determine how presidential electors shall

be appointed and does not require the electors’ names

to appear on the ballot if the names of the candidates

for president and vice- president are on the ballot.”

Fischer v. Rollins. 1993 WL 219805, at *1 (1st Cir. 1993)

(Table) (citation omitted); see also Conant v. Brown. 248

F. Supp. 3d 1014, 1027 (D. Or. 2017). The Court therefore

joins several other district courts in holding that “the

relief [Plaintiffs] are seeking—to be certified for the

ballot—simply

doesn’t

make

sense”

because

“Presidential electors don’t appear on the ballot.” See,

e.g. Lauters, 2024 WL 4517911, at *4.

Plaintiffs’ First Amendment claim also ignores

that “the practice in many states of allowing] a vote for

the presidential candidate ... to be counted as a vote for

his party’s nominees for the electoral college” is a

“long-continued practical interpretation of the

constitutional propriety of an implied or oral pledge of

his ballot by a candidate for elector as to his vote in the

electoral college[.]” Blair, 343 U.S. at 229; Chiafalo v.

Washington, 591 U.S. 578, 597 (2020). If Plaintiffs win

the election, Tennessee law requires them to “cast their

ballots in the electoral college for” Dr. Ayyadurai

because he or his party “nominated them as electors.”

Tenn. Code Ann. § 2-15-104(c)(l). Plaintiffs also pledged

in writing “to serve and to mark [their] ballots” for Dr.

22a

Ayyadurai for President. (See Doc. No. 8 8); see also

Tenn. Code. Ann. § 2-15-204(a). And Plaintiffs cannot

disregard their pledge and vote for a different candidate

because an elector who “refuses to present a ballot,

presents an unmarked ballot, or presents a ballot

marked in violation of the elector’s pledge under §

2-15-204” automatically “vacates the office of elector.”

Tenn. Code Ann. § 2-15-207(c). Given that presidential

candidates and their pledged electors are inexorably

linked by agreement, it is reasonable for Tennessee to

exclude from the ballot electors who have pledged

allegiance to a candidate that is constitutionally barred

from serving as President.

The Court also disagrees that Defendants acted

“without jurisdiction” and violated the First Amendment

when they excluded the Elector Candidates and Dr.

Ayyudarai from the ballot based solely on Dr.

Ayyudarai’s ineligibility to hold the Office of President.

(See Doc. No. 18 at 3). Contrary to Plaintiffs’ suggestion,

Defendants have the right to prevent an ineligible,

non-natural- bom-citizen from running for President.

(See Doc. No. 18 at 2, 4-8 (arguing that there is a

meaningful difference between being qualified to hold

office and being qualified to run for office). “[A] state’s

legitimate interest in protecting the integrity and

practical functioning of the political process permits it

to exclude from the ballot candidates who are

constitutionally prohibited from assuming office.”

Hassan v. Colorado. 495 F. App’x 947, 948-49 (10th Cir.

2012) (Gorsuch, J.) (citations omitted). “Moreover,

courts have held that when determining who can be on a

presidential ballot, a State can enforce” the

natural-bom-citizen requirement in “Article II, Section 1,

Clause 5.” Sias, 2024 WL 4505108, at *6; see also Hassan,

23a

495 F. App’x at 948; Hassan v. New Hampshire, 2012 WL

405620, at *4 (D.N.H. Feb. 8, 2012). These constitutional

rules make a lot of sense because otherwise, if

Tennessee could not exclude a frivolous candidate from

the ballot, then “anyone, regardless of age, citizenship or

any other constitutional ineligibility would be entitled to

clutter and confuse [the] electoral ballot.” Lindsay v.

Bowen, 750 F.3d 1061, 1064 (9th Cir. 2014). “Nothing in

the First Amendment compels such an absurd result.”

Id.

Accordingly, Defendants did not violate the First

Amendment when they excluded Dr. Ayyudarai and

rejected Plaintiffs’ request to appear on the November 5,

2024 general election ballot.

2.

Fourteenth Amendment

The Complaint separately alleges that Defendants

violated Plaintiffs’ Fourteenth Amendment procedural

due process rights to run for the independent “office of

Electors for president and vice president.” (See id. KK

33, 37, 66, 83). Plaintiffs base this claim on the language

from Tenn Code Ann. § 2-3-203(6), which provides that

Tennessee holds elections “for the following office^’

during “the regular November election when the

election immediately precedes the commencement of a

full term: . . . Electors for president and vice president.”

(Id. (emphases added)). Plaintiffs argue that this

language creates a standalone “office of the Electors for

president and vice president” in Tennessee, and that

they have a right to run for this office even if their

pledged candidate is ineligible to serve as President.

(Id.). This argument, while creative, finds no support in

law or fact.

24a

The Fourteenth Amendment’s Due Process

Clause forbids states from “depriving] any person of

life, liberty, or property[] without due process of law.”

U.S. Const, amend. XTV, § 1. To establish a Fourteenth

Amendment due process violation, Plaintiffs must show

that (1) they had life, liberty, or property interests

protected by the Due Process Clause; (2) they were

deprived of these protected interests; and (3) the state

did not afford them adequate procedural rights. Women

Med. Prof’l Corp, v. Baird, 438 F.3d 595, 611 (6th Cir.

2006). Of course, the threshold question in adjudicating

a procedural due process claim is whether Plaintiffs

possessed a liberty or property interest. Without a

protected interest, there is no need to reach the issue of

whether there were adequate deprivation procedures.

Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Thompson

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

Even if Tennessee had an independent “office of

the Electors for president and vice president,” which it

does not, Plaintiffs could not possibly have a

constitutionally protected interest in running for that

office. The Supreme Court in Snowden v. Hughes held

that “an unlawful denial by state action of a right to

state political office is not a denial of a right of property

or liberty secured by the due process clause.” 321 U.S. 1

(1944). After Snowden, “the lower courts have

repeatedly held that a candidate for political office holds

no property or liberty interest in an elected position.”

Newsom v. Golden, 602 F. Supp. 3d 1073, 1083-84 (M.D.

Tenn. 2022) (collecting cases); see also, e.g., Leroy v.

New York City Bd. of Elections, 793 F. Supp. 2d 533, 537

(E.D.N.Y. 2011). This Court recently did the same,

reasoning that the clear holding from Snowden remains

good law and has not been overruled. See Newsom, 602

25a

F. Supp. 3d at 1084. Here, too, the Court finds that

Plaintiffs have no constitutionally protected interest in

their placement on the ballot in any capacity, and

therefore their Fourteenth Amendment due process

claim necessarily fails.

D.

Purcell Principle

Defendants’ motion raises one final wrinkle

regarding the timing of Plaintiffs’ request for relief. (See

Doc. No. 14 at 7-8). In cases involving a challenge to a

state’s election procedures, “the Supreme Court has

adopted a unique injunction principle” known as the

“Purcell principle.” Tenn. Conf, of the NAACP v, Lee, 105

F.4th 888, 895 (6th Cir. 2024) (citing Purcell v. Gonzalez,

549 U.S. 1 (2006)). Under this principle, “lower federal

courts should ordinarily not alter the election rules on

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

Democratic Nat’l Comm.. 589 U.S. 423, 424 (2020). That

is because “[c]ourt orders affecting elections, especially

conflicting orders, can themselves result in voter

confusion and consequent incentive to remain away

from the polls. As an election draws closer, that risk will

increase.” Purcell, 549 U.S. at 4- 5; see also Merrill v.

Milligan. 142 S. Ct. 879, 880-81 (2002) (Kavanaugh, J.,

concurring). Although there are no definitive parameters

for what constitutes “on the eve of an election,” the

Sixth Circuit has held that injunctions issued one month

before an election likely violate the Purcell principle.

Lee, 105 F.4th at 897.

There are many practical reasons for following

the Purcell principle in this case. As the United States

District Court for the District of Nebraska recently held:

26a

Practical

considerations

sometimes

require courts to allow elections to

proceed despite pending legal challenges.

And this election is already proceeding.

Early voting is underway and mail-in

ballots have been distributed and

returned. The election is not merely close,

or even imminent—it is happening right

now.

So, what can the Court do at this point

without running afoul of Purcell? Should

completed ballots be discarded and

replaced with new ones? [The Court]

would be hard pressed to think of a

situation more confusing to a voter than

receiving a second ballot with instructions

to vote again. Should the Court order

publication of new ballots for those who

haven’t voted yet? Different ballots issued

to otherwise similarly situated voters

would pose different legal problems. And

that’s assuming any of this is even feasible,

for which the plaintiffs have made no

showing.

Lauters, 2024 WL 4517911 (citations and internal

quotation marks omitted). The Court shares these same

concerns, and Plaintiffs do not explain how changing

the Tennessee general election ballot at this late hour is

feasible or would avoid voter confusion. In any event,

because the Court will grant Defendants’ motion to

dismiss on the merits and effectively maintain the status

quo, the Court will not alter Tennessee’s elections rules

in violation of the Purcell principle.

27a

IV.

CONCLUSION

For the foregoing reasons, the Court will grant in

part and deny in part Defendants’ Motion to Dismiss

(Doc. No. 13) and dismiss this entire case under Rule

12(b)(6).

An appropriate order will enter.

UNITED STATES DISTRICT JUDGE

28a

Constitutional and Statutory Provisions Involved

U.S. Const, art. n, § 1, cl. 5 provides:

No Person except a natural bom Citizen, or

a Citizen of the United States, at the time of

the Adoption of this Constitution, shall be

eligible to the Office of President; neither shall

any Person be eligible to that Office who shall

not have attained to the Age of thirty five

Years, and been fourteen Years a Resident

within the United States.

U.S. Const amend. XIV, § 3 provides:

No person shall be a Senator or

Representative in Congress, or elector of

President and Vice President, or hold any

office, civil or military, under the United States,

or under any State, who, having previously

taken an oath, as a member of Congress, or as

an officer of the United States, or as a member

of anyState legislature, or as an executive or

judicial officer of any State, to support the

Constitution of the United States, shall have

engaged in insurrection or rebellion against the

same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of

two-thirds of each House, remove such

disability.

U.S. Const, amend. XX, § 3 provides:

If, at the time fixed for the beginning of the

term of the President, the President elect shall

have died, the Vice President elect shall

become President. If a President shall not have

been chosen before the time fixed for the

beginning of his term, or if the President elect

29a

shall have failed to qualify, then the Vice

President elect shall act as President until a

President shall have qualified; and the

Congress may by law provide for the case

wherein neither a President elect nor a Vice

President shall have qualified, declaring who

shall then act as President, or the manner in

which one who is to act shall be selected, and

such person shall act accordingly until a

President or Vice President shall have

qualified.

Tenn. Code Ann. § 2-5-101 (b)(1) provides:

2-5-101 The time for filing - Required signatures Failure to file - Filing office hours - Prohibited acts Death or late withdrawal of candidates.

(b)

(1) Nominating petitions shall be signed by the

candidate and twenty-five (25) or more

registered voters who are eligible to vote to

fill the office. Nominating petitions for

independent presidential candidates shall

be signed by the candidate and twenty-five

(25) or more registered voters for each

elector allocated to the state. Each

independent candidate must designate the

full number of electors allocated to the

state.

Tenn. Code Ann. § 2-5-103 (b) provides:

2-11-202 Candidates for statewide elections.

(b) The chair of the state election commission

shall, no later than twelve (12:00) noon

prevailing time on the first Thursday after the

deadlines set in § 2-5-101, certify to the chairs

of the county election commissions the names

of all candidates who have qualified under this

30a

section to have their names on the ballots for

general or primary elections.

Tenn. Code Ann. § 2-15-101 provides:

2-15-101. Selection of presidential electors.

At the regular November election immediately

preceding the time fixed by the law of the

United States for the choice of president and

vice president, as many electors of president

and vice president as this state may be entitled

to shall be elected. Each registered voter in

this state may vote for the whole number of

electors. The persons, up to the number

required to be chosen, having the highest

number of votes shall be declared to be duly

chosen electors.

Tenn. Code Ann. § 2-5-208(a)(b)(c)(l)(A)

provides:

2-5-208 Arrangement of material on ballots.

(a) The requirements of this section apply to

all ballots.

(b) Immediately following the title of each

office shall be printed words “Vote for one

(1), Vote for two (2) according to the

number to be elected.

(c)

(1) The order of the titles of the offices

to be filled or for which nominees

are to be chosen shall be

substantially as follows:

(A) Presidential

and

vice

presidential electors;

31a

Tenn. Code Ann. § 2-5-208 (h) provides:

2-5-208 Arrangement of material on ballots.

(h) The names of presidential candidates shall

be arranged according to political parties, and

followed by the words, (giving the name) for

president and (giving the name) for vice

president. Names of electors need not appear

on the ballot.

Tenn. Code Ann. § 2-3-203 (6) provides:

2-3-203 General assembly members,

congressional representatives, presidential

electors, and governor —Time for election.

Elections for the following offices shall be held

at the regular November election when the

election

immediately

precedes

the

commencement of a full term:

(6) Electors for president and vice president.