Opinion
3:20-cv-00736
12-07-2021
JEFFREY LICHTENSTEIN, et al., Plaintiffs, v. TRE HARGETT, et al., Defendants.
MEMORANDUM OPINION
ELI RICHARDSON UNITED STATES DISTRICT JUDGE.
Pending before the Court is Defendants' Motion to Dismiss (Doc. No. 46, “Motion”), supported by an accompanying Memorandum of Law (Doc. No. 47). Plaintiffs filed a response in opposition to the Motion (Doc. No. 50, “Response”), and Defendants filed a reply (Doc. No. 51, “Reply”). Additionally, after the Court invited the parties to file supplementals briefs due to an influx of recent circuit court and Supreme Court opinions involving election law, the parties both filed short supplemental briefs in support of their positions (Doc. Nos. 54, 55).
A more fulsome examination of the procedural background of this case, and its companion case (No. 3:20-cv-000372), is laid out in this Court's Memorandum Opinion denying Plaintiff's Motion for a Preliminary Injunction, Lichtenstein v. Hargett, 489 F.Supp.3d 742 (M.D. Tenn. 2020), which, for reasons discussed below, is attached as an appendix hereto.
Via this lawsuit, Plaintiffs challenge the constitutionality of Tenn. Code Ann. § 2-6-203(c)(3) (hereinafter “the Law”). The Law provides that “[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. § 2-6-203(c)(3).
In pertinent part, Plaintiffs allege in their Complaint:
16. This November, in light of the ongoing COVID-19 pandemic, a record number of Tennesseans are expected to vote absentee in the presidential election.
17. In order to do so, absentee-eligible voters will first need to apply for an absentee ballot from their county election commission, and return the completed form on or before October 5, 2020.
18. The application to vote by mail is made publicly-available online to download and print. One version of the application is available from the Secretary of State's website, and other versions, created by the State's various county election commissions and approved by the Secretary of State, are similarly available from the respective county election commissions' websites.
19. Once the voter has obtained a printed copy of the application, the voter “may have anyone the voter chooses . . . write out the voter's absentee voting by mail application except for the voter's signature or mark.” Tenn. Code § 2-6-203.(Doc. No. 1 at 7). After noting the criminal prohibition prescribed by the Law, Plaintiffs allege that “this criminal prohibition on the distribution of absentee ballot applications is an extraordinarily burdensome constraint on their ability to fully engage with voters and to encourage them to vote this Fall.” (Id. at 8). Then, after describing the importance-in particular with respect to the then-upcoming November 3, 2020 general election-(i) to (the organizational) Plaintiffs of voter engagement efforts, and (ii) to voters of the option to vote absentee during the COVID-19 pandemic, Plaintiffs allege:
In light of the COVID-19 pandemic and the shifting voter preference towards voting absentee, Plaintiffs will focus significant time and resources on organizing their members and communities, where they are eligible, to vote absentee. This 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. And, as a key part of this 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, so that the prospective voter may then complete and return to be added to the absentee voter rolls for the November 2020 election.(Id. at 9). Plaintiffs then allege essentially that they are prohibited from doing exactly this by the Law, which, they claim, chills their protected free speech and associational activities in violation of the First Amendment. (Id. at 10-12).
On August 31, 2020, Plaintiffs filed their Motion for a Preliminary Injunction (Doc. No. 11) seeking to enjoin Defendants from enforcing the Law. On September 23, 2020, the Court, in a thorough 66-page Memorandum Opinion and Order, denied Plaintiffs' Motion for a Preliminary Injunction. Lichtenstein v. Hargett, 489 F.Supp.3d 742 (M.D. Tenn. 2020) (hereinafter “Preliminary Injunction Opinion”). To summarize, the Court first noted that the First Amendment protects only expressive conduct, id. at 765-66, then held that the Law likely did not violate the First Amendment because “the conduct prohibited by the Law is not ‘speech' and thus is not within the scope of the First Amendment.” Id. at 773.
But the Court did not stop there. Instead, conducting an alternative analysis, it assumed arguendo that such conduct was in fact speech and asked whether the Law would violate the First Amendment under that hypothetical scenario. Id. at 774-78. The Court found that, “even if the Law is (contrary to the Court's conclusion above) properly viewed as imposing a restriction on speech, it is marginal and not particularly close to the ‘core' of political expression.” Id. at 775. Thus, the Court rejected application of the so-called Meyer-Buckley standard of automatic exacting scrutiny (meaning, as the Court explained, automatic “strict scrutiny”), which applies only to core political speech. Id. at 777. The Court then asked what standard would apply to the Law if (as the Court had found) Meyer-Buckley did not. Id. The Court concluded that either: (1) the Anderson-Burdick framework applied, either because the law is an “election law” or because the law burden speech but not “core” political speech; or (2) rational-basis review applied automatically because neither Meyer-Buckley nor Anderson-Burdick applied. Id. The Court then conducted an analysis under the Anderson-Burdick framework, holding that the framework dictated application of “rational basis plus” scrutiny and that the Law survived such scrutiny. Id. at 777-86. The Court then alternatively analyzed whether the Law survived rational-basis review, which would apply if the Anderson-Burdick framework did not apply and found that the Law passed scrutiny under rational-basis review. Id. at 786-87.
The word “automatically” is a significant qualifier here. As indicated, at this point in its analysis the Court was distinguishing between the possible applicability of Anderson-Burdick and the possible applicability of automatic rational-basis review. Anderson-Burdick, unlike rational-basis review, is not a test (or “standard”) for the constitutionality of a statute; instead, it is a framework for selecting a test. See Lichtenstein, 489 F.Supp.3d at 758 n.19. Under that framework, the test selected in a given case could be rational-basis review. See Id. at 779-780. So the application of Anderson-Burdick is not necessarily inconsistent with the application of rational-basis review; instead, it is inconsistent with automatic rational-basis reviewi.e., with the decision to apply rational-basis review without working through the Anderson-Burdick framework to see whether the standard should be rational-basis review or something else.
In one place in the opinion, the Court indicated that this would be the case-that rational-basis review rather than Anderson-Burdick would apply automatically-if the Law did not implicate the expressive conduct that is protected by the First Amendment. See 489 F.Supp.3d at 787. This indication was, regrettably, inexact. Elsewhere, the Court made clear that rational-basis review, rather than Anderson-Burdick, would apply automatically only if the Law: (a) did not implicate the First Amendment (because it did not implicate expressive conduct); and (b) was not an “election law” for purposes of the applicability of Anderson-Burdick. See Id. at 778-79.
LEGAL STANDARD
For purposes of a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must take all the factual allegations in the complaint as true, as it has done above. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 1950. A legal conclusion, including one couched as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of action sufficient. Id.; Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010), cited in Abriq v. Hall, 295 F.Supp.3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations that are merely consistent with the defendant's liability do not satisfy the claimant's burden, as mere consistency does not establish plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556 U.S. at 678.
In determining whether a complaint is sufficient under the standards of Iqbal and its predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may be appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. This can be crucial, as no such allegations count toward the plaintiff's goal of reaching plausibility of relief. To reiterate, such allegations include “bare assertions, ” formulaic recitation of the elements, and “conclusory” or “bald” allegations. Id. at 681. The question is whether the remaining allegations-factual allegations, i.e., allegations of factual matter-plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet the standard of Fed.R.Civ.P. 8 and thus must be dismissed pursuant to Rule 12(b)(6). Id. at 683.
As a general rule, matters outside the pleadings may not be considered in ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6) unless the motion is converted to one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). When a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to dismiss into one for summary judgment. Doe v. Ohio State Univ., 219 F.Supp.3d 645, 652-53 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F.Supp.3d 789, 791-92 (M.D. Tenn. 2018).
On a Rule 12(b)(6) motion to dismiss, “[t]he moving party has the burden of proving that no claim exists.” Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 433 (6th Cir. 2008). That is not to say that the movant has some evidentiary burden; as should be clear from the discussion above, evidence (as opposed to allegations as construed in light of any allowable matters outside the pleadings) is not involved on a Rule 12(b)(6) motion. The movant's burden, rather, is a burden of explanation; since the movant is the one seeking dismissal, it is the one that bears the burden of explaining-with whatever degree of thoroughness is required under the circumstances-why dismissal is appropriate for failure to state a claim.
DISCUSSION
I. The Applicable Test or Framework
In the Court's Preliminary Injunction Opinion, the Court identified the four options for the applicable test or framework to be applied to Plaintiffs' claim: strict scrutiny pursuant to Meyer-Buckley; somewhat lesser scrutiny pursuant to Meyer-Buckley; rational-basis review; and the Anderson-Burdick framework (whereby the Court would in turn have to determine the applicable standard of scrutiny based on the degree of burden the Law places on Plaintiffs). Lichtenstein, 489 F.Supp.3d at 757-59. The Court then conducted a fulsome analysis regarding which test or framework was applicable. For the reasons discussed in that Opinion and summarized above, which will not be repeated here for reasons of judicial efficiency, the Court found that either: (1) the Anderson-Burdick framework applied (either because the Law is an “election law” or, less likely, because the Law is properly deemed to burden expressive conduct but not “core” political expression) and in turn required application of rational basis “plus” review of the Law; or, alternatively, if the Anderson-Burdick framework did not apply for either or both of these reasons, (2) rational-basis review applied automatically because the Law did not implicate the First Amendment at all, since it did not restrict any activity that could be considered expressive conduct.
Defendants argue in their Motion that the Court correctly identified that rational-basis review applied to Plaintiffs' claim because the act of providing an application for an absentee ballot is not expressive conduct nor core political speech protected by the First Amendment. (Doc. No. 47 at 12). Defendants maintain that Plaintiffs' asserted claim does not survive rational-basis review, and thus, should be dismissed.
In their Response, Plaintiffs assert that they have pled facts to allege that the Law unlawfully infringes on their expressive conduct, core political speech, and associational activities, and therefore, strict scrutiny should be applied and their claim should survive Defendant's Motion. (Doc. No. 50 at 6). Plaintiffs argue that the Court cannot apply rational-basis review at this juncture because whether the conduct prohibited by the Law is “expressive” is a fact-sensitive inquiry and the “Court would benefit from a full record before making this important judgment about whether voter engagement conduct falls within or outside the scope of the Fourteenth Amendment.” (Id.).
Plaintiffs also argue in their Response that even if the Court determines that a more exacting scrutiny (meaning strict scrutiny pursuant to Meyer-Buckley) is not to be applied to the Law, “the appropriate framework for adjudicating Plaintiffs' claims would not be rational basis . . . [i]nstead, the Anderson-Burdick framework would apply.” (Id. at 9). However, even if Anderson-Burdick applies, that does not necessarily mean that rational-basis review does not apply; instead it would mean that the Court would have to separately determine the standard of review under the Anderson-Burdick framework.
The Court disagrees with Plaintiffs that it cannot decide at this stage of the case (i.e., on Defendant's Rule 12(b)(6) motion) whether the conduct prohibited by the Law is expressive conduct that is subject to rational-basis review. First, whether an activity is considered expressive conduct is a question of law for the Court to decide and therefore, a question that may be decided at the motion-to-dismiss stage. See Knight v. Montgomery Cty., Tenn., 470 F.Supp.3d 760, 768 n.5 (M.D. Tenn. 2020) (Richardson, J.) (“Whether activity qualifies as expressive conduct is a question of law.” (citing Ruff v. Long, 111 F.Supp.3d 639, 645 (E.D. Pa. 2015) (“Ruff's behavior is only afforded First Amendment protection if we construe it as expressive conduct. This is a threshold question of law.”))); Scicchitano v. Mt. Carmel Area Sch. Dist., No. 4:09CV638, 2011 WL 4498842, at *9 (M.D. Pa. Sept. 27, 2011) (explaining that the determination of whether an activity is “expressive conduct” is “plainly not one for the jury” and is a question for the court to decide); Kohlman v. Vill. of Midlothian, 833 F.Supp.2d 922, 935 (N.D. Ill. 2011) (“Determining whether speech is constitutionally protected is a question of law that the court must decide.”); Potts v. City of Lafayette, Ind., 121 F.3d 1106, 1110-11 (7th Cir. 1997) (“the application of the First Amendment to the facts of a particular case is not an issue for a jury to resolve, but is a legal question for the court to decide”).
Second, although the Court agrees with Plaintiffs that whether conduct is considered expressive is “a fact-sensitive, context-dependent inquiry, ” Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 160 (3d Cir. 2002), the factually sensitive nature of such an inquiry does not shield First Amendment claims alleging expressive conduct from dismissal on a Rule 12(b)(6) motion. See Lawrence v. Chabot, 182 Fed.Appx. 442, 453 (6th Cir. 2006) (affirming district court's dismissal of First Amendment claim on a Rule 12(b)(6) motion and explaining that the challenged Michigan law did not regulate expressive activity); see also Heller v. Bedford Cent. Sch. Dist., 665 Fed.Appx. 49, 53 (2d Cir. 2016) (affirming district court's application of rational basis to a First Amendment claim on a motion to dismiss after finding that an activity was not expressive conduct); Calvary Christian Ctr. v. City of Fredericksburg, Va., 832 F.Supp.2d 635, 643 (E.D. Va. 2011) (granting the defendant's motion to dismiss the plaintiff's First Amendment claim and finding that the Complaint did not allege expressive conduct). After all, the construction of a statute-is quintessentially one of law. See In re Palmer, 219 F.3d 580, 583 (6th Cir. 2000) (statutory interpretation is a question of law). So what a statute covers-meaning, in the case of a criminal statute like the Law, the question of what conduct is prohibited-is one of law, not fact. Thus, at this stage, the Court is free to determine whether the conduct placed in issue by Plaintiffs' Complaint-the conduct in which Plaintiffs wish to engage but is prohibited by the Law-falls within the scope of the First Amendment (i.e., is expressive conduct), and this Court will proceed to do so.
Things might be different if the Complaint left some room for interpretation as to what conduct Plaintiffs proposed to engage in but were afraid might violate the Law. In that case, perhaps factual development would be required to determine, for particular purposes (including, for example, standing), the precise contours of the conduct that Plaintiffs were talking about in the Complaint. But even if a complaint is sufficiently ambiguous to prevent a clear picture of the full nature of the conduct in which the plaintiff(s) wish to engage, and even if such ambiguity necessitated further factual development as to the nature of the plaintiff's proposed conduct before a court could decide as a matter of law on a 12(b)(6) motion whether a statute was unconstitutional as applied to the plaintiff's conduct, that would not help Plaintiffs here. Based on the Complaint, there is no question as to the nature of their desired conduct in which they would engage but for their fear of running afoul of the Law; quite clear, that conduct is precisely what the Law prohibits: providing persons with applications for absentee ballots. (See Doc. No. 1 at ¶ 35) (complaining about the Law “criminalizing the simple act of providing to a voter an absentee ballot application” and the corresponding “threat of criminal sanctions for participating in such common voter engagement activity, ” and claiming that such criminalization “severely burdens the Plaintiffs' and their members' First Amendment rights”). No. further factual development is required for the Court to determine the nature or scope of Plaintiffs' proposed conduct at issue or whether (as a matter of law) the Law unconstitutionally prevents Plaintiffs from engaging in such conduct.
Plaintiffs contend that the following allegations present in their Complaint demonstrate that the law at issue prohibits expressive conduct:
22. For Plaintiffs, who are Tennessee-based individuals and community organizations that are committed to engaging and organizing Tennesseans around making their voices heard through voting, this criminal prohibition on the distribution of absentee ballot applications is an extraordinarily burdensome constraint on their ability to fully engage with voters and to encourage them to vote this Fall.
23. In election after election, Plaintiffs have run or participated in voter engagement programs involving voter registration activities, voter education, and voter turnout. Such efforts are at the core of Plaintiffs' political speech and advocacy activities. Plaintiffs plan to continue this outreach in the lead up to the November 2020 election. [law doesn't affect these activities]
24. In advance of the November 2020 election, outreach to eligible absentee voters will play a central role in Plaintiffs' voter engagement strategy. In light of the ongoing COVID-19 pandemic more Tennesseans are expected to want to vote by mail to protect themselves and their family members from exposure to the virus at in-person voting locations. Indeed, in the August 2020 election, more than 116, 000 Tennessee voters cast absentee ballots, which is over five times more than had done so in the prior four August elections.
. . .
26. In light of the COVID-19 pandemic and the shifting voter preference towards voting absentee, Plaintiffs will focus significant time and resources on organizing their members and communities, where they are eligible, to vote absentee. This 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. And, as a key part of this 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, so that the prospective voter may then complete and return to be added to the absentee voter rolls for the November 2020 election.
27. Having the ability to provide voters with the absentee ballot application is necessary 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 to register to vote, or to request to vote absentee. For example, in Plaintiffs' experience, providing a voter registration application to a person is a much more effective way to ensure they register to vote than simply encouraging the person to register. Similarly, Plaintiffs believe, based on their experience, that providing an absentee ballot application to a voter will be a much more effective way to encourage eligible voters to vote absentee than directing the voter to a website they may not be able to access, or to a form they may not be able to print.
28. This election cycle, voters have specifically asked Plaintiffs to provide them with voting materials, including absentee ballot applications, including because some such voters lack reliable access to a computer, a printer, or the Internet. Unless provided with such materials, some of Plaintiffs' members and engaged community members will simply elect to not request an absentee ballot, or vote altogether.
29. But under Tennessee Code § 2-6-202(c)(3), Plaintiffs cannot even provide absentee ballot applications to members or other eligible voters who affirmatively request them. As such, Plaintiffs are forbidden from leveraging their resources- including the ability to download and print an application for an organizational member or community member who lacks access to the Internet or a printer-to ensure that voters who need and want to apply for an absentee ballot can do so.
30. Moreover, because of the law, Organizational Plaintiffs like Tennessee NAACP, MCLC, APRI, Equity Alliance, and Free Hearts, are not able to send mailings to their members and other engaged voters including literature about the benefits of absentee voting along with a blank absentee ballot application, which the voter can then complete and return to county election officials. For groups like Organizational Plaintiff MCLC and Tennessee NAACP, which boast memberships of approximately 20, 000 affiliate union members and 10, 000 statewide members, respectively, including an absentee ballot application in such mass mailings is crucial to effectively reaching and encouraging as many of their eligible members as possible to vote absentee.(Doc. No. 1 at ¶¶ 22-24, 26-27).
Specifically, Plaintiffs contend that these allegations show that “Plaintiffs have plausibly alleged that the Law prohibits Plaintiffs from engaging in expressive conduct” because the allegations show that “this prohibition burdens Plaintiffs' ability to engage fully with eligible absentee voters who are unlikely or unable to vote in person and deprives them of their chosen method to convey a particularized message encouraging them to vote absentee.” (Doc. No. 50 at 3). Plaintiffs assert that “Plaintiffs' chosen means of conveying this particularized message-by including the means of voting absentee in their voter engagement materials-is not only inherently expressive but substantially more effective than other methods of conveying the same message.” (Id. (citing Doc. No. 1 at ¶¶ 26-27)).
Plaintiffs' allegations regarding the Law's prohibitions, and whether the prohibited activities are considered expressive conduct, are legal conclusions that will not be taken as true for purposes of ruling on Defendants' Motion. See In re Travel Agent Comm'n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (explaining that on a Rule 12(b)(6) motion, a court “need not accept as true legal conclusions or unwarranted factual inferences . . . and conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.”). The Court must decide for itself what the Law does and does not prohibit. And as the Court explained at considerable length in its Preliminary Injunction Opinion, the Law simply does not prohibit any conduct that is expressive. Lichtenstein, 489 F.Supp.3d at 764-73 (“. . . however one slices it, the Law prohibits no spoken or written expression whatsoever and also leaves open a very wide swath of conduct, prohibiting just one very discrete kind of act.”). For reasons of judicial efficiency, the Court will not repeat those reasons here, but fully incorporates those reasons in this Opinion. Accordingly, the Court concludes that the Law does not restrict expressive conduct and thus is not within the scope of the First Amendment. And even if it is within scope of the First Amendment, it is not “core” political speech, so Meyer-Buckley (with its strict scrutiny standard) does not apply. Instead, either the Anderson-Burdick framework applies (and in turn prescribes rational basis “plus” review), or rational-basis review applies automatically.
The Court's Preliminary Injunction Opinion is appended to this Opinion and made a part hereof. The WestLaw version of the Preliminary Injunction Opinion is appended for ease of reference, but the Court notes (as counsel no doubt fully understand) that some of the material in the WestLaw version (such as the headnotes) is not original content of this Court.
II. The Law Survives Anderson-Burdick and Rational-Basis Review
Defendants argue that Plaintiffs' Complaint should be dismissed whether rational-basis review is applied automatically or whether instead the Anderson-Burdick framework is applied and in turn subjects the Law to a somewhat higher “rational-basis plus” standard of review. (Id.). Defendants argue that the “court has already found that the statute's restriction is ‘quite narrow, leaving open every possible avenue of oral or written expression and every possible action save one.' -the distribution of applications for absentee ballots.” (Doc. No. 47 at 14). Defendants then assert that “there is clearly a rational relationship between Tenn. Code Ann. § 2-6-202(c)(3) and the State's interest in preventing voter confusion and protecting the integrity of its elections[.]” (Doc. No. 47 at 15).
Plaintiffs argue in their Response that at a minimum, the Anderson-Burdick framework applies to Plaintiffs' claims and is not amenable to resolution at this stage in the litigation because “[t]his inquiry is necessarily fact-intensive and not ripe for disposition at the motion to dismiss stage.” (Doc. No. 50 at 10). Plaintiffs assert that “the Court cannot identify state interests and the weighing of their necessity in light of Plaintiffs' burdens at this stage without the benefit of a more factual record.” (Id.).
The Sixth Circuit has explicitly rejected the argument that Anderson-Burdick cannot be applied at the motion-to-dismiss stage.
Although Plaintiffs argue that we should disregard Daunt I and our Anderson-Burdick analysis therein because it rested upon an underdeveloped factual record, we fail to see how further factual development could change our prior reasoning. True, Anderson-Burdick can, in many if not most cases, be a fact-intensive inquiry, see Tennessee State Conf. of N.A.A.C.P. v. Hargett, 420 F.Supp.3d 683, 700-01 (M.D. Tenn. 2019), but we have not shied away from disposing of Anderson-
Burdick claims at the motion-to-dismiss stage where a plaintiff's allegations “failed as a matter of law.” Comm. to Impose Term Limits on Ohio Supreme Ct. & to Preclude Special Legal Status for Members & Emps. of Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018) (collecting cases); see also Hawkins v. DeWine, 968 F.3d 603, 607 (6th Cir. 2020). Where, as here, the alleged severity of the burdens imposed can be gleaned from the face of the challenged law and they can be weighed against the asserted state interests, dismissal on the pleadings is warranted. See Ohio Ballot Bd., 885 F.3d at 448.Daunt v. Benson, 999 F.3d 299, 313-14 (6th Cir. 2021) (emphasis added).
In its Preliminary Injunction Opinion, the Court (concerning itself with what was “likely, ” as is appropriate on motions for preliminary injunctions), found that Anderson-Burdick dictated the application of what the Court called rational-basis “plus” (as opposed to mere rational-basis) scrutiny. Lichtenstein, 489 F.Supp.3d at 780. The Court further found that the Law survived rational basis “plus” scrutiny. Id. at 780-86. While the Court's discussion in the Preliminary Injunction Opinion involved a review of materials outside of the four corners of the Complaint (i.e., Defendant Goins' declaration as to an asserted state interest), those same burdens and state interests that the Court discussed in the Preliminary Injunction Opinion can easily “be gleaned from the face of the challenged law[.]” Daunt, 999 F.3d at 314. Thus, for the same reasons articulated in the Preliminary Injunction Opinion, the Court finds that dismissal at the pleadings stage is warranted upon application of the Anderson-Burdick framework, because the Law survives rational basis “plus” scrutiny.
As the Court explained, the difference in the two is that what it called rational-basis “plus” review requires the state-official defendants to shown that a challenged state restriction is rationally related to an “important” state interest, whereas garden-variety rational-basis scrutiny requires the defendants to show that the restriction is rationally related to a merely “legitimate” state interest. See Lichtenstein, 489 F.Supp.3d at 780. The distinction between an “important” state interest and a “legitimate” state difference is one with a difference and one that the Court felt it should observe in light of certain extant Sixth Circuit opinions. See id.
In fact, in the Preliminary Injunction Opinion, the Court hypothesized possible state interests (i.e., unscrupulous distributors) protected by the Law that were not asserted by Defendants. See Lichtenstein, 489 F.Supp.3d at 784. Such an interest can obviously be “gleaned from the face of the challenged law, ” Daunt, 999 F.3d at 413, by the Court as the Court already did so in its prior Opinion.
Also in the Court's Preliminary Injunction Opinion, after finding that the Law survived rational basis “plus” scrutiny, the Court found that the Law accordingly survived the somewhat less demanding rational-basis scrutiny that would be applicable assuming that Anderson-Burdick (like Meyer-Buckley) did not apply to the Law. Lichtenstein, 489 F.Supp.3d at 786-87. Laws that are reviewed under rational-basis scrutiny are particularly vulnerable to dismissal on a Rule 12(b)(6) motion, because, as the Sixth Circuit has explained, “under rational basis review, . . . a purported rational basis may be based on ‘rational speculation unsupported by evidence or empirical data' and need not have a foundation in the record.” Midkiff v. Adams Cnty. Reg'l Water Dist., 409 F.3d 758, 770 (6th Cir. 2005). Further, “[u]nder rational basis review, official decisions are afforded a strong presumption of validity.” In re Flint Water Cases, 384 F.Supp.3d 802, 844 (E.D. Mich. 2019) (citing Walker v. Bain, 257 F.3d 660, 668 (6th Cir. 2001)). “And even at the motion to dismiss stage, this presents a formidable bar for plaintiffs to surmount.” Id. (citing Theile v. Michigan, 891 F.3d 240, 243 (6th Cir. 2018)). Thus, for the same reasons articulated in the Preliminary Injunction Opinion, the Court finds that upon rational-basis review, dismissal on the pleadings is warranted.
The Court sees nothing in the parties' briefing to change the Court's analysis or above-summarized conclusions in the Court's Preliminary Injunction Opinion. Of course, a different standard of review now applies; at the (current) motion-to-dismiss stage, the Court must take as true all factual allegations in Plaintiffs' Complaint. Nevertheless, the Court concludes that, consistent with its previously expressed view that Plaintiffs were unlikely to succeed on the merits of their claim, Plaintiffs as a matter of law cannot succeed on their claim, even accepting as true everything in the Complaint that the Court is required on this Motion to accept as true. Accordingly, the Motion will be granted, and this action will be dismissed. An appropriate order will be entered.
As noted above, the Court invited the parties to file supplemental briefing addressing whether the “numerous appellate court opinions involving election law” associated with the November 2020 elections bear on the instant case and the pending motion to dismiss. (Doc. No. 53). In Plaintiffs' supplemental briefing, they discuss two recently decided United States Supreme Court opinions (Americans for Prosperity v. Bonta, 141 S.Ct. 2373 (2021) and Brnovich v. Democratic National Committee, 141 S.Ct. 2321 (2021)) and assert that those opinions do not impact Plaintiffs' claim. (Doc. No. 54 at 3-4). Plaintiffs therein concerned themselves only with showing that these recent cases did not hurt their claim; Plaintiffs did not point to any recent cases that they assert affirmatively strengthen their claim. Thus, Plaintiffs' supplemental briefing does nothing to change the Court's conclusion.