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Date: 07-28-2022
Case Style:
AKILAH MOORE, ET AL. V. WILLIAM LEE, ET AL.
Case Number: M2022-00434-SC-RDO-CV
Judge:
ROGER A. PAGE; Presiding Judge
JEFFREY S. BIVINS,
HOLLY KIRBY, and SARAH K. CAMPBELL
joined SHARON G. LEE
Court:
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
On Appeal From The Chancery Court for Davidson County
Russell T. Perkins, Judge J. Michael Sharp
Chancellor Steven W. Maroney
Plaintiff's Attorney:
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Defendant's Attorney: Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Janet M. Kleinfelter, Deputy Attorney General; Alexander S. Rieger, Senior
Assistant Attorney General; and Pablo A. Varela, Assistant Attorney General for the
defendants, William Lee, as Governor of Tennessee, in his official capacity, Tre Hargett,
as Tennessee Secretary of State, in his official capacity, and Mark Goins, as Tennessee
Coordinator of Elections, in his official capacity.
Description:
Nashville, TN - Government lawyer represented plaintiffs with challenging the reapportionment plan for the districts of the Tennessee Senate.
Following the 2020 census, the General Assembly reapportioned the districts for the
Tennessee State Senate as required by article II, section 4 of the Tennessee Constitution.
This was done through Senate Bill 0780, which was passed by both Houses of the General
Assembly, and signed into law by the Governor as Public Chapter 596 on February 6, 2022
("the Senate plan").
On February 23, 2022, the Plaintiffs, who are three registered voters in Tennessee,
filed a complaint for declaratory and injunctive relief, challenging the constitutionality of
the Senate plan.' On March 1, 2022, this Court affirmed a decision by the trial court that
the statutory criteria for a three-judge panel under Tennessee Code Annotated section 20-
' The Plaintiffs' complaint also challenged the constitutionality of Senate Bill 0779, Public Chapter
598, which reapportioned the districts for the Tennessee House of Representatives ("the House plan"). The
House plan is not at issue in this appeal.
2
18-101(a) (2021)2 had been satisfied. The Court selected Judge J. Michael Sharp and
Chancellor Steven W. Maroney to sit with Chancellor Russell T. Perkins, to whom the case
was originally assigned ("the panel" or "the trial court").
On March 2, 2022, the Plaintiffs filed a "motion to set hearing and expedited
briefing schedule on plaintiffs[' ] motion for summary judgment, or in the alternative, for
expedited trial." The Defendants filed a response in opposition, and the panel held a
telephonic conference. On March 8, 2022, the panel entered an order denying the motion,
stating it "was not convinced that it had authority to expedite the proceedings in the fashion
requested in the motion," and that
[g]iven all the attendant circumstances, including Defendants' preliminary
estimate that they needed to develop expert proof to defend Plaintiffs'
constitutional challenges and the possibility that discovery might be
necessary, the Panel concludes that expediting these proceedings as
requested would not allow the important constitutional questions to be fully
and meaningfully considered and adjudicated on the merits.3
On March 11, 2022, the Plaintiffs filed their first amended verified complaint as
well as a motion for temporary injunction. In their amended complaint, the Plaintiffs asked
the panel to declare that the Senate plan violates article II, section 3 of the Tennessee
2 Tennessee Code Annotated section 20-18-101(a) provides as follows:
A civil action in which the complaint meets each of the following criteria must be heard
and determined by a three-judge panel pursuant to this chapter:
(1) Challenges the constitutionality of:
(A) A state statute, including a statute that apportions or redistricts
state legislative or congressional districts;
(B) An executive order; or
(C) An administrative rule or regulation;
(2) Includes a claim for declaratory judgment or injunctive relief; and
(3) Is brought against the state, a state department or agency, or a state official
acting in their official capacity.
A copy of the trial court's March 8, 2022 order is not provided in the parties' appendices and an
appellate record has not yet been transmitted to this Court given the expedited nature of these proceedings.
However, a copy of the order is available on the Davidson County Chancery Information Access website,
https://chanceryclerkandmaster.nashvilIe_Rov/cases/chancerv-inforrnation-access-cia/,and we take judicial
notice of the contents of the order. See Tenn. R. App. P. 13(c); Delbridge v. State, 742 S.W.2d 266, 267
(Tenn. 1987) ("The courts may take judicial notice of the court records in an earlier proceeding of the same
case and the actions of the courts thereon.-).
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Constitution by failing to consecutively number the Senatorial districts in Davidson
County. In their amended complaint and rnotion for temporary injunction, the Plaintiffs
further asked the panel to (1) prohibit the Defendants from enforcing or giving any effect
to the Senate plan, including barring the Defendants from conducting any elections under
the plan; (2) provide the General Assembly with fifteen days to remedy the identified
constitutional defects, consistent with Tennessee Code Annotated section 20-18-105
(2021); (3) enact an interim redistricting plan applicable to the 2022 state legislative
elections if the General Assembly failed to remedy the identified constitutional defects by
the court-imposed deadline; and (4) delay the April 7, 2022 candidate filing deadline until
May 20, 2022, or such other date as the court deemed appropriate. The Defendants filed a
response in opposition, and the Plaintiffs filed a reply in support of their motion. The
parties also filed various affidavits and documents in support of their respective positions.
On March 31, 2022, the court held a non-evidentiary hearing on the motion for temporary
injunction.
On the afternoon of April 6, 2022, a majority of the panel issued an order granting
a temporary injunction with respect to the Senate plan.4 The panel majority found that the
Plaintiffs had shown a likelihood of success on the merits of their constitutional challenge
to the Senate plan and a risk of irreparable harm sufficient to warrant the issuance of
extraordinary relief in the form of a temporary injunction. The panel majority also stated
that the Plaintiffs had made a sufficient showing on the question of the public interest and
the balancing of harms as to the Senate plan. Thus, the panel temporarily enjoined the
effectiveness of the Senate plan and (1) directed the Defendants not to give any effect to
the Senate plan or hold any elections under the plan pending further orders of the court; (2)
provided the General Assembly with fifteen days to remedy the constitutional defect; (3)
declared that, if the General Assembly fails to remedy the defect, the panel will impose an
interim apportionment map for the Tennessee Senate; and (4) extended the April 7, 2022
noon filing deadline for prospective state Senatorial candidates to May 5, 2022, at noon,
which is fifteen days earlier than the date proposed by the Plaintiffs in their motion for
temporary injunction. Chancellor Maroney dissented from enjoinment of the Senate plan,
stating he believes a full evidentiary hearing is required to address the claims and defenses
regarding the Senate plan.
On April 7, 2022, the Defendants sought review of the panel's decision enjoining
the Senate plan by filing in the Court of Appeals an Application for Extraordinary Appeal
pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The Defendants also
4 The panel declined to enjoin the House plan.
4
filed an Emergency Motion to Stay Pending Extraordinary Appeal pursuant to Rule 7 of
the Tennessee Rules of Appellate Procedure, requesting that the injunction be stayed
pending appeal and seeking expedited review. On April 8, 2022, this Court, on its own
motion, entered an order pursuant to Tennessee Code Annotated section 16-3-201(d)(3)
(2021)5 finding that the application raised issues of compelling public interest, and
assuming jurisdiction over the case. We granted the Defendants' request to expedite
review and ordered the Plaintiffs to file an answer to the application and a response to the
motion to stay by Monday, April 11, 2022, at 1:00 p.m. The Plaintiffs timely filed an
answer. Following receipt of the Plaintiffs' answer, this Court entered an order on April
11, 2022, granting the Defendants' application for extraordinary appeal, and ordering that
the case be submitted to the Court for decision without further briefing or oral argument.
See Tenn. R. App. P. 10(d); Tenn. Sup. Ct. R. 48(d). We now issue our decision.
STANDARD OF REVIEW
"The trial court's decision to grant the plaintiffs' request for a temporary injunction
is discretionary and is reviewed under an abuse of discretion standard." Fisher v. Hargett,
604 S.W.3d 381, 395 (Tenn. 2020). "A court abuses its discretion when it causes an
injustice to the party challenging the decision by (1) applying an incorrect legal standard,
(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly
eifoneous assessment of the evidence." Id. (quoting Harmon v. Hickman Cmty. Healthcare
Servs., Inc., 594 S.W.3d 297, 305-06 (Tenn. 2020)). This Court has further stated that
lain abuse of discretion occurs when a court . . . fails to properly consider the factors
customarily used to guide the particular discretionary decision." Lee Med., Inc. v. Beecher,
312 S.W.3d 515, 524 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn.
2007)). "Whether the trial court applied an incorrect legal standard is a question of law
and is reviewed de novo with no presumption of correctness." Fisher, 604 S.W.3d at 395.
While questions of fact are normally reviewed de novo with a presumption of correctness
unless the evidence preponderates otherwise, in appeals such as this where all evidence is
documentary, we afford no deference or presumption of correctness to the trial court's
findings of fact. Id.
5"T he supreme court may, upon its own rnotion, when there is a cornpelling public interest, assurne
jurisdiction over an undecided case in which a notice of appeal or an application for interlocutory or
extraordinary appeal is filed with an intermediate state appellate court." Tenn. Code Ann. § 16-3-201(d)(3);
see also Tenn. Sup. Ct. R. 48.
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ANALYSIS
This interlocutory appeal arises from the trial court's grant of a temporary
injunction. Rule 65.04(2) of the Tennessee Rules of Civil Procedure provides:
A temporary injunction may be granted during the pendency of an action if
it is clearly shown by verified complaint, affidavit or other evidence that the
movant's rights are being or will be violated by an adverse party and the
movant will suffer immediate and hTeparable injury, loss or damage pending
a final judgment in the action, or that the acts or omissions of the adverse
party will tend to render such final judgment ineffectual.
Tenn. R. Civ. P. 65.04(2).
Like the federal courts, Tennessee trial courts consider four factors in
determining whether to issue a temporary injunction: "(1) the threat of
irreparable harm to the plaintiff if the injunction is not granted; (2) the
balance between this harm and the injury that granting the injunction would
inflict on defendant; (3) the probability that plaintiff will succeed on the
merits; and (4) the public interest.
Fisher, 604 S.W.3d at 394 (quoting Moody v. Hutchison, 247 S.W.3d 187, 199-200 (Tenn.
Ct. App. 2007)). Tennessee Rule of Civil Procedure 65.04(6) further requires a court
issuing a temporary injunction to "set forth findings of fact and conclusions of law which
constitute the grounds of its action."
We also have explained that mandatory injunctions—which, as here, alter the status
quo and order the defendant to take action—are extraordinary in nature and should be
granted only in exceptional circumstances. Fisher, 604 S.W.3d. at 394-95 (citing Cole v.
Dych, 535 S.W.2d 315, 322 (Tenn. 1976); King v. Elrod, 268 S.W.2d 103, 106 (Tenn.
1954)). Indeed, this Court observed more than 150 years ago that "there is no power the
exercise of which is more delicate, which requires greater caution, deliberation and sound
discretion or is more dangerous in a doubtful case" than the discretion of granting an
injunction. Mabiy v. Ross, 48 Tenn. 769, 774 (1870).
The Defendants argue that the trial court eiTed in finding that the Plaintiffs have
standing to challenge the Senate plan, and that the trial court erred in failing to consider
the harm to the Defendants and the public interest in issuing the temporary injunction. We
need not address standing for purposes of this time-sensitive interlocutory appeal because
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we agree with the Defendants that, in issuing the temporary injunction, the trial court failed
to properly consider the harm to the Defendants and the public interest.6
The Hann to the State and the Public Interest
The Defendants argue that the trial court did not adequately consider the harm to
the State and the public interest in enjoining the Senate plan and extending the candidate
filing deadline—which Tennessee Code Annotated section 2-5-101(a)(1) (Supp. 2021) sets
as the first Thursday in April at noon—to May 5, 2022, at noon. We agree.
In response to the Plaintiffs' motion for temporary injunction, the Defendants
submitted, among other things, the affidavits of Beth Henry Robertson, the Assistant
Coordinator of Elections for the State of Tennessee; Linda Phillips, the Administrator of
Elections for Shelby County, Tennessee; Tammy Smith, the Administrator of Elections for
Wilson County, Tennessee; and Chris Davis, the Administrator of Elections for Knox
County, Tennessee. These affidavits set forth in robust detail the myriad responsibilities
our state and county election officials have in ensuring an orderly election process, and the
timelines under which they must satisfy those obligations. For example, Ms. Robertson
explained in her affidavit how statutory deadlines for candidate withdrawal and
disqualification are tied to the April 7 qualifying deadline, and how those deadlines in turn
impact the ability of election officials to satisfy the requirements for military and overseas
citizen ballots under the Military and Overseas Voters Empowerment ("MOVE") Act, 52
U.S.C. § 20302(a)(8) (formerly cited as 42 U.S.C. § 1973ff-1(8), and Tennessee Code
Annotated section 2-6-503(a) (2014). Ms. Robertson further detailed the impact of these
deadlines on the preparation, review, and approval of ballots pursuant to Tennessee Code
Annotated section 2-5-207(e) (Supp. 2021). She also detailed the multitude of other tasks
that election officials must accomplish in the time leading up to an election, including
setting up electronic databases of candidates, training officials as required by Tennessee
Code Annotated section 2-11-202(a)(9) (2014), and administering examinations for
election administrators seeking certification as required by Tennessee Code Annotated
section 2-11-202(b), among other responsibilities. She also explained that many county
election commissions have already relied on the Senate plan in adjusting voting precinct
lines and have notified voters of these changes as required by Tennessee Code Annotated
section 2-3-105 (Supp. 2021). Similarly, she explained that election officials, candidates,
and voters have already relied on the district boundaries in the Senate plan to determine
whether voter signatures are valid on nominating petitions that already have been filed.
6 Nothing in this decision prevents the Defendants frorn challenging the Plaintiffs' standing on
rernand. Of course, the parties may continue to pursue other claims and defenses on rernand.
- 7 -
Ms. Robertson also stated that any extension of the candidate qualifying deadline risks
compliance with the MOVE Act and detrimentally impacts the ability to timely and
accurately prepare for the state primary election and early voting. The affidavits of the
three county administrators of elections provide similar detail regarding their obligations
for each election and the detrimental impact that an extension of the candidate filing
deadline will have on their ability to satisfy their obligations. Put simply, it is clear from
these affidavits that a delay in the Senatorial candidate filing deadline from April 7, 2022,
to May 5, 2022, will have a significant detrimental impact on the work of our state and
county election officials, risks voter confusion, and potentially compromises the integrity
of our state's elections.
The Plaintiffs argue that the trial court sufficiently took these factors into
consideration in setting a candidate filing deadline of May 5, 2022, rather than the date of
May 20, 2022, as originally proposed in the Plaintiffs' motion for temporary injunction.
The Plaintiffs further argue that the May 5, 2022 filing deadline will still allow the State to
comply with federal law regarding the mailing of military ballots, and as a result "there is
now nothing in the record to support the State's claims of harm." We disagree. The
affidavits submitted by the Defendants detail harm to the election process well beyond the
obligations to comply with federal law, as detailed above. While the affidavits
understandably address the May 20, 2022 deadline originally proposed by the Plaintiffs,
the affidavits make clear that any delay beyond the statutory deadline places a burden on
election officials. Ms. Robertson specifically states in her affidavit that moving the
candidate qualifying deadline to "any other date later in the election cycle," will risk
compliance with the MOVE Act and compromise the ability to "timely and accurately"
prepare for the upcoming elections. As we have explained, the April 7, 2022 filing deadline
is set by statute. Tenn. Code Ann. § 2-5-101(a)(1). An extension of that statutory
deadline—to which other deadlines are tied—of nearly a month to May 5, 2022, imposes
a significant delay on the election process in this state, as reflected by the submitted
affidavits. In addition, as detailed above, the affidavits also describe the uncertainty and
confusion that will result from a change in the Senate plan at this stage in the election
process, regardless of when the new candidate filing deadline is set.
In Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam), the United States Supreme
Court vacated an order from the United States Court of Appeals for the Ninth Circuit
enjoining the operation of Arizona voter identification procedures. In doing so, the
Supreme Court recognized that a state "indisputably has a compelling interest in preserving
the integrity of its election process." Id. at 4 (quoting Eu v. San Francisco Cnty.
Democratic Cent. Comm., 489 U.S. 214, 231 (1989)). The Supreme Court further
recognized that "[c]onfidence in the integrity of our electoral processes is essential to the
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functioning of our participatory democracy," stating that court orders affecting elections
"can themselves result in voter confusion and consequent incentive to remain away from
the polls." Id. at 4-5. Applying what is now known as "the Purcell principle," the Suprerne
Court "has repeatedly emphasized that 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. ---, 140 S. Ct. 1205, 1207 (2020).
Federal courts have applied the Purcell principle in declining to preliminarily enjoin
redistricting plans. In Alpha Phi Alpha Fraternity Inc. v. Raffensperger, F.Supp.3d
2022 WL 633312, at *74, *76 (N.D. Ga. Feb. 28, 2022), the plaintiffs challenged Georgia's
newly adopted redistricting plan under the Voting Rights Act and moved for a preliminary
injunction. In an opinion issued six days before candidate qualifying for the State of
Georgia was set to begin, the district court found that the plaintiffs had shown a substantial
likelihood of success on the merits and that they were likely to suffer irreparable harm, but
nevertheless the district court declined to issue a preliminary injunction after finding that
the balancing of harms and the public interest weighed against the injunction. The district
court explained that "elections are complex and election calendars are finely calibrated
processes, and significant upheaval and voter confusion can result if changes are made late
in the process." Id. at *74. The court found that "moving the date for qualifying without
moving the date of the primary election risks the accuracy of the primary because of the
required timelines for building ballot combinations, proofing draft ballots, and preparing
ballots for printing by the deadline for overseas and military voters." Id. at *75. The
district court also recognized that requiring the Georgia General Assembly to draw new
plans at such a late stage presented its own risks because "a quick plan [ ] is not necessarily
a good plan," and voters and candidates are not well served "by a chaotic, last-minute
reordering of districts." Id. (internal quotations omitted). Similarly, in Diaz v. Silver, 932
F. Supp. 462 (E.D.N.Y. 1996), voters brought suit challenging the constitutionality of a
congressional redistricting plan and sought a preliminary injunction. A three-judge panel
of the district court assumed, for purposes of the motion for preliminary injunction, that
the plaintiffs had a likelihood of success on the merits and would suffer irreparable harm.
Id. at 466. Nevertheless, the court found that the public interest weighed heavily against
an injunction given the impact it would have on the "election machinery" that was already
"in gear." Id. at 466, 469.
This Court similarly has shown restraint when asked to enjoin the effectiveness of
constitutionally suspect reapportionment plans. Following the 1980 census, a suit was filed
challenging the constitutionality of the reapportionment of the Tennessee Senate. State ex
rel. Lockert v. Crowell, 631 S.W.2d 702, 703 (Tenn. 1982). The Chancery Court for
Davidson County granted the plaintiffs' motion for summary judgment and enjoined the
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defendants from conducting any primary or general election under the plan. Id. at 704. On
direct appeal, this Court held that summary judgment was inappropriate because there
remained disputed questions of material fact, and dissolved the injunction and remanded
to the trial court for a proceeding on merits. Id. 714-15. Following remand to the trial
court, the legislature enacted changes to the composition of the Senatorial districts. State
ex rel. Lockert v. Crowell, 656 S.W.2d 836, 838 (Tenn. 1983). The plaintiffs filed a
supplemental complaint alleging that the newly enacted districts also were drawn in
disregard of the Tennessee Constitution because certain counties were unnecessarily
divided or numbered non-consecutively. Id. Following trial, the trial court held that the
Senate plan violated constitutional requirements and enjoined the holding of any further
elections under the plan. Id. 7 This Court affitined the trial court's decree finding that the
Senate plan was unconstitutional and enjoining the holding of any further elections under
the plan. Id. at 845.
Here, the panel majority summarily concluded that the Plaintiffs had "rnade a
sufficient showing on the question of the public interest and the balancing of harms as to
the Senate plan." However, the panel did not address the robust defense evidence of the
harm that will result from delaying the Senatorial candidate filing deadline. Even where,
as here, a court determines that a plaintiff is likely to succeed on the merits and there is a
risk of irreparable harm,' the court must carefully weigh the balance between that harm
and the harm that granting the injunction will inflict on the defendant, as well as the public
interest. Here, we observe that Plaintiff Moore's alleged ineparable injury is not to her
ability to vote, but rather to her alleged right to vote in a county that has consecutively
numbered Senate districts. We find that alleged harm is outweighed by the significant
harm the injunction will inflict on the Defendants and the public interest, as detailed in the
affidavits of four election officials. Under these circumstances, we hold that the trial court
erred by granting the extraordinary remedy of a mandatory temporary injunction impacting
the electoral process in this State.
On remand, the case was consolidated with an action challenging the constitutionality of the
reapportionment plan for the House of Representatives. That plan also was found unconstitutional.
Lockert . 656 S.W.2d at 845.
s The Defendants do not challenge in this appeal the panel's conclusion that the Plaintiffs, if they
have standin, have shown a likelihood of success on the merits. The Defendants argued in their rnotion to
stay, but not in their application for extraordinary appeal, that the Plaintiffs have failed to show irreparable
harm. Because we find that the panel erred in failing to adequately consider the harm of the injunction to
the Defendants and the public interest, we express no opinion on those findings.
Outcome: The order of the trial court granting the Plaintiffs a temporary injunction is vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion. The Defendants' motion to stay the injunction pending appeal is denied as moot.
Recognizing that the trial court's April 6, 2022 order created uncertainty regarding the Senatorial districts and extended the April 7, 2022 noon filing deadline for prospective state Senatorial candidates until May 5, 2022 at noon, an extension of time equal to the time remaining on the statutory deadline when the injunction was entered is afforded, and it is hereby ordered that the filing deadline for prospective state Senatorial candidates shall
be Thursday, April 14, 2022, at 4 p.m. prevailing time.
This Opinion is not subject to rehearing under Tennessee Rule of Appellate
Procedure 39, and the Clerk is directed to certify this Opinion as final and to immediately issue the mandate. Costs on appeal are taxed to the Plaintiffs, for which execution mayissue if necessary.
Plaintiff's Experts:
Defendant's Experts:
Comments: