UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRENCE JOHNSON, JIM HARRIS, )

and ALEXANDER FRIEDMAN

)

)

Plaintiffs,

)

)

vs.

)

)

PHIL BREDESEN, Governor of the State )

of Tennessee, BROOK THOMPSON,

)

Coordinator of Elections,

)

RILEY DARNELL, Secretary of State of )

Tennessee, JAMES JOHNSON,

)

Administrator of Elections for Shelby

)

County, KIM BUCKLEY, Administrator of )

Elections for Madison County, and

)

RAY BARRETT, Administrator of Elections)

for Davidson County, in their official

)

capacities,

)

)

Defendants.

)

CIVIL ACTION NO. - - - - -

COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, AND NOMINAL MONETARY DAMAGES

INTRODUCTION

1. This lawsuit seeks declaratory and injunctive relief to invalidate Sections

40-29-202(b) and (c) of the Tennessee Code which condition restoration of voting rights

for people convicted of infamous crimes on the payment of legal financial obligations

(LFOs), namely restitution and child support payments. By denying the vote to those

have not paid these LFOs, the

violates fundamental right to vote and

on the

of wealth.

not challenge

state statutes

UJeL'-'i".,,"'>', convicted felons while

are in

on probation or on

CKG 649538 vi 2860000-001330 ~kJ'kVVU
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parole, the State's ability to impose LFOs at the time of sentencing, or its ability to

collect those debts by methods other than the refusal to restore voting rights upon

completion of the non-financial terms of the sentence.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. §§ 1331, 1343(a)(3) and (4), and 42 U.S.c. § 1973j(t). This suit is authorized by

42 U.S.C. § 1983. This Court may exercise supplemental jurisdiction under 28 U.S.C. §

1367(a) to hear claims under the Constitution and laws of Tennessee. This Court has

jurisdiction to grant both declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201

and 2202.

3. Venue is proper in this court pursuant to 28 U.S.c. § 1391(b) because

Defendants Bredesen, Darnell, Thompson, and Barrett are situated within this judicial

district.

PLAINTIFFS

4. Terrence Johnson is a citizen of the United States and a resident of Shelby

County, Tennessee. He was convicted of federal wire fraud in or about 1999 and ordered

to pay over $40,000 in restitution for his offense. He has completed his term of

imprisonment, parole, and probation for that offense. Johnson also has a daughter for

whom he owes about $1,200 in overdue child support payments, but he currently has

custody of his child. He wishes to vote in upcoming elections, but remains ineligible

oUl:stan<1Jmg LFOs and child support payments.

5. Jim Harris is a

the

States and a "".,.....'-,... of Madison

He was convicted of drug

in or about 1 attempted

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burglary and a felony drug offense in or about 1996, and a felony drug offense in or about

2001. He has completed his terms of imprisonment, parole, and probation for all of those

offenses. Harris also has a daughter for whom he owes about $2,500 in overdue child

support payments, but he currently has custody of his child. He wishes to vote in

upcoming elections, but remains ineligible because of his outstanding child support

payments.

6. Alexander Friedman is a citizen of the United States and a resident of

Davidson County, Tennessee. He was convicted of assault and aggravated armed

robbery in 1989, and has completed his term of imprisonment, parole, and probation for

this offense. Friedman applied for restoration of his voting rights in 2006, but the State

denied his application on the ground that he owes over $1,000 in restitution. He wishes

to vote in upcoming elections, but the State refuses to restore his voting rights.

DEFENDANTS

7. Phil Bredesen is the Governor of the State of Tennessee. As the State's

chief executive officer, he is ultimately responsibility for implementing Tennessee law,

including violations of election and other criminal laws, rules, and regulations. He is

sued in his official capacity for actions that he took under color of state law.

8. Brook Thompson is the Coordinator of Elections for the State of

Tennessee. He is the State's chief administrative election officer and is responsible for

implementing voting rules and regulations as

to carry out the provisions of the

including promulgation of procedures

and the receipt and

aUlTIUllSI:raLlOn of applications for, voter registration. Tenn. Code Ann. § 11-201. He is

m official

for

he under

of state law.

3 Case 3:08-cv-00187 Document 1 Filed 02/25/08 Page 3 of 14 PageID #: 9

9. Riley Darnell is the Secretary of State for the State of Tennessee and is

ultimately responsible for developing and implementing rules and regulations as

necessary to carry out the provisions of the election code. Tenn. Code. Ann. § 2-11-201.

He is sued in his official capacity for actions that he took under color of state law.

10. James Johnson is the administrator of elections for Shelby County,

Tennessee, and is responsible for the execution of all elections in the county. Tenn. Code

Ann. § 2-12-116. He is sued in his official capacity for actions that he took under color

of state law.

11. Kim Buckley is the administrator of elections for Madison County,

Tennessee, and is responsible for the execution of all elections in the county. Tenn. Code
,
Ann. § 2-12-116. She is sued in her official capacity for actions that she took under color

of state law.

12. Ray Barrett is the administrator of elections for Davidson County,

Tennessee, and is responsible for the execution of all elections in the county. Tenn. Code

Ann. § 2-12-116. He is sued in his official capacity for actions that he took under color

of state law.

FACTUAL ALLEGATIONS

13. On or about May 17, 2006, the Tennessee Legislature amended Title 40,

Chapter 29 of the Tennessee Code to streamline the process by which individuals vvith

criminal convictions may seek restoration of their voting rights, and the Governor signed

the bill

on or about June 2006.

4 Case 3:08-cv-00187 Document 1 Filed 02/25/08 Page 4 of 14 PageID #: 10

A person rendered infamous and deprived of the right of suffrage by the judgment of any state or federal court is eligible to apply for a voter registration card and have the right of suffrage restored upon:

(1) Receiving a pardon, except where such pardon contains special conditions pertaining to the right of suffrage;

(2) The discharge from custody by reason of service or expiration of the maximum sentence imposed by the court for any such infamous crime; or

(3) Being granted a certificate of final discharge from supervision by the board of probation and parole pursuant to § 40-28-105, or any equivalent discharge by another state, the federal government, or county correction authority. Tenn. Code Ann. § 40-29-202(a).

15. The law further states that:

Notwithstanding the provisions of subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored unless such person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence ... [and] unless such person is current in all child support obligations. Tenn. Code Ann. §§ 40-29-202(b) and (c) (emphasis added).

16. An individual who seeks restoration of his or her voting rights must

complete a voter registration form and obtain a "Certificate of Restoration" form from the

local county election office. The Certificate of Restoration form must be filled out by an

agent or officer of the pardoning authority (probation or parole officer), the supervising

or incarcerating authority (prison or jail), or the circuit or criminal court (clerk).

17. Prior to the 2006 amendment, Tennessee did not require individuals with

criminal convictions who had otherwise completed all the terms of their sentence to pay

restitution or to be current in all child support obligations before

eligible to seek

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18. Plaintiff Terrence Johnson wishes to vote in upcoming elections, but

remains ineligible pursuant to Tenn. Code Ann. §§ 40-29-202(b) and (c) because he owes

restitution and outstanding child support payments.

19. Plaintiff Jim Harris wishes to vote in upcoming elections, but remains

ineligible pursuant to Tenn. Code Ann. §§ 40-29-202(c) because of his outstanding child

support payments.

20. The presentence report regarding Mr. Friedman's 1989 criminal

conviction states that his offense resulted in a loss of $1,000 to the victim, but his

criminal history record does not show that the court ordered him to pay restitution as part

of his sentence.

21. In or about September 2006, Mr. Friedman's former parole officer, Robert

Denman, searched Plaintiff Friedman's criminal file and did not find any order from the

sentencing court instructing Plaintiff Friedman to pay restitution.

22. Mr. Friedman applied for restoration of his voting rights in 2006, but the

State denied his application pursuant to Tenn. Code Ann. §§ 40-29-202(b) on the ground

that he owes over $1,000 in restitution despite the lack of any court order to that effect.

23. Mr. Friedman wishes to vote in upcoming elections, but the State refuses

to restore his voting rights.

The State of Tennessee has not implemented a set of procedures that all

counties have to follow when determining whether a person convicted of an infamous

owes LFOs and, if so,

that person has satistled his or LFOs.

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COUNT ONE SECTION 40-29-202(b) of the TENNESSEE CODE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION 25. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 26. Section 1 of the Fourteenth Amendment provides: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." 27. Section 40-29-202(b) of the Tennessee Code requires people convicted of an infamous crime to pay all restitution associated with their conviction before being eligible for restoration of their voting rights. 28. Tennessee's requirement that people convicted of an infamous crime pay all restitution associated with their conviction before being eligible for 'restoration of their voting rights unlawfully denies Plaintiffs equal protection under the law. 29. The requirement set forth in Section 40-29-202(b) also negatively and disproportionately impacts indigent people in violation of the equal protection clause.
COUNT TWO SECTION 40-29-202(c) ofthe TENNESSEE CODE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION

30. Plaintiffs incorporate by reference all preceding paragraphs as if fully set

forth

31. Section

of emles:see Code requires people convicted of

an infamous

to current on child support payments.

7 Case 3:08-cv-00187 Document 1 Filed 02/25/08 Page 7 of 14 PageID #: 13

32. Tennessee law does not deny the right to vote to an individual who owes outstanding child support payments, but who has not been convicted of an infamous crime.
33. Tennessee's requirement that people convicted of an infamous crime be current on their child support payments before restoring their voting rights unlavvfully denies Plaintiffs Johnson and Harris equal protection under the law.
34. The requirement set forth in Section 40-29-202(b) also negatively and disproportionately impacts indigent people in violation of the equal protection clause.
COUNT THREE
VIOLATION OF THE TWENTY-FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION
35. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.
36. The Twenty-Fourth Amendment of the Constitution of the United States provides:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be abridged by the United States or any State for reason or failure to pay any poll tax or other tax. 37. Sections 40-29-202(b) and (c) of the Tennessee Code require people convicted of an infamous crime to be current on child support payments and pay all restitution associated vvith their conviction before being eligible for restoration of their
8
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38. Tennessee's requirement that people convicted of an infamous crime pay all of their LFOs as a precondition to being eligible for restoration of their voting rights violates the Twenty-fourth Amendment of the Constitution of the United States.
COUNT FOUR
VIOLATION OF EX POST FACTO CLAUSES OF THE UNITED STATES AND TENNESSEE CONSTITUIONS 39. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 40. Article 1, Section 11 of the Tennessee Constitution states that "laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made." 41. Article 1, Section 9 of the Constitution of the United States provides that: "No ... ex post facto law shall be passed." 42. Because Plaintiff Johnson was convicted of a crime prior to the passage of Tenn. Code Ann. § 40-29-202(b) and has completed the terms of his sentence, Defendants' denial of his right to vote based on his failure or inability to pay the restitution associated with his sentence violates the state and federal ex post facto clauses. 43. Because Plaintiffs Johnson and Harris accrued outstanding child support payments prior to the passage of Tenn. Code Ann. § 40-29-202(c), Defendants' denial of their right to vote based on their failure or inability to pay their outstanding child support the state and federal ex post facto clauses.
Because Plaintiff Friedman was convicted of a crime prior to the passage Tenn. Code Ann. § 40-29-202(b), Defendants' denial of his right to vote based on his

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failure or inability to pay any restitution that he might owe violates the state and federal ex post facto clauses.
COUNT FIVE VIOLATION OF PRIVILEGES AND IMMUNITIES CLAUSES OF THE UNITED STATES AND TENNESSEE CONSTITUTIONS 45. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 46. Section 1 of the Fourteenth Amendment of the Constitution of the United States provides that "[nlo State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ...." 47. Article XI, Section 8 of the Tennessee Constitution states that the Tennessee Legislature "shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law." 48. State restrictions that deny the fundamental right to vote based upon the failure to pay child support and/or restitution deny rights, privileges, immunities and the protections of equality afforded by the United States and Tennessee Constitutions.
10 Case 3:08-cv-00187 Document 1 Filed 02/25/08 Page 10 of 14 PageID #: 16

COUNT SIX

VIOLATION OF DUE PROCESS CLAUSES OF THE UNITED STATES AND TENNESEE CONSTITUTIONS

49. Plaintiffs incorporate by reference all preceding paragraphs as if fully set

forth herein.

50. Section 1 of the Fourteenth Amendment of the Constitution of the United

States prohibits any state from depriving "any person of life, liberty, or property without

due process of law."

51. Article I, Section 8 of the Tennessee Constitution provides that no person

shall be "deprived of his life, liberty or property, but by the judgment of his peers or the

law of the land."

52. The State of Tennessee has refused to restore Plaintiff Friedman's voting
,
rights despite the State's failure to produce any documentation showing that Mr.

Friedman owes any outstanding restitution.

53. The State's refusal to restore Plaintiff Friedman's voting rights violates his

right to due process under the Fourteenth Amendment of the Constitution of the United

States and Article I, Section 8 of the Tennessee Constitution.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully ask this Court to:

(1)

supplemental jurisdiction over Plaintiffs' claims brought under

Constitution

of

the denial of Plaintiff Friedman's right to vote based on

to

restitution '-''"''''''",'UU'UF,

lack of any court order showing

restitution is owed

right to due process under '-'''''U'U'U 1 of the

11

Case 3:08-cv-00187 Document 1 Filed 02/25/08 Page 11 of 14 PageID #: 17

Fourteenth Amendment of the Constitution of the United States and Article I, Section 8 of the Tennessee Constitution;
(3) Declare that the denial of Plaintiffs' right to vote based on their failure or inability to pay LFOs, including Plaintiff Friedman's right to vote if the Defendants present evidence showing that he does owe restitution, violates the Fourteenth and Twenty-fourth Amendments of the Constitution of the United States, the Ex Post Facto Clauses of the United States and Tennessee Constitutions, and the Privileges and Immunities Clauses of the United States and Tennessee Constitutions;
(4) Enjoin Defendants and their agents, employees, and representatives from denying Plaintiffs their right to register and vote, and direct Defendants to prepare and circulate a state registration form in accordance with this Court's decl~ations;
(5) Award Plaintiffs nominal damages for the denials of their right to vote; (6) Award Plaintiffs their expenses, costs, fees, and other disbursements associated with the filing and maintenance of this action, including reasonable attorneys' fees pursuant to 42 U.S.C. §§ 1988 and 1973/(e); (7) Exercise continuing jurisdiction over this action during the enforcement of its judgment; and (8) Award any other and further relief this Court deems proper and just.

vI 2ii6IJUUtl-UU133U 2/25/2008
Case 3:08-cv-00187 Document 1

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DATED this 2Sth day of February, 2008.

Respectfully submitted,

By:

Ch

Grant (Bar No. 17081)

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, PC

Commerce Center, Suite 1000

211 Commerce Street

Nashville, Tennessee 37201

Tel: 61S.726-5767

Fax: 615.744-5767

cgrantra{bakerdonelson.com

Laughlin McDonald* Neil Bradley* Nancy G. Abudu* AMERICAN CIVIL LIBERTIES UNION
VOTING RIGHTS PROJECT 2600 Marquis One Tower 245 Peachtree Center Ave. NE Atlanta, Georgia 30303-1227 Tel: (404) 523-2721 Fax: (404) 653-0331 ImcdonaldrQ{aclu.org nbradelvra{aclu.org nabudu@aclu.org *Seeking admission pro hac vice

13 Case 3:08-cv-00187 Document 1 Filed 02/25/08 Page 13 of 14 PageID #: 19

Tricia Herzfeld (Bar No. 026014) AMERICAN CIVIL LIBERTIES UNION
OF TENNESSEE P.O. Box 120160 Nashville, Tennessee 37212 Tel: (615) 320-7142 Fax: (615) 320-7260
14 Case 3:08-cv-00187 Document 1 Filed 02/25/08 Page 14 of 14 PageID #: 20

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRENCE JOHNSON, JIM HARRIS,

)

and ALEXANDER FRIEDMANN,

)

)

Plaintiffs,

)

)

v.

)

)

PHIL BREDESEN, Governor of the State of

)

Tennessee, BROOK THOMPSON,

)

Coordinator of Elections, RILEY DARNELL,

)

Secretary of State of Tennessee, JAMES

)

JOHNSON, Administrator of Elections for

)

Shelby County, KIM BUCKLEY, Administrator of )

Elections for Madison County, and

)

RAY BARRETT, Administrator of Elections for )

Davidson County, in their official capacities, )

)

Defendants.

)

Case No. 3:08cv0187 Judge Thomas A. Wiseman, Jr.

MEMORANDUM OPINION Plaintiffs Terrence Johnson, Jim Harris and Alexander Friedmann bring this action seeking to invalidate those portions of Tenn. Code Ann. § 40-29-202 that condition the restoration of voting rights for people previously convicted of infamous crimes upon their payment of certain legal financial obligations, namely restitution and child support. Plaintiffs assert that this statute, by denying the vote to those who have not satisfied certain legal financial obligations, violates their fundamental right to vote and discriminates among citizens on the basis of wealth. More specifically, Plaintiffs claim that the statute at issue violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Twenty-Fourth Amendment to the United States Constitution, the Ex Post-Facto Clauses of the United States and Tennessee Constitutions, the Privileges and Immunities Clauses of the United States and Tennessee Constitutions, and the Due Process Clauses of the United States and Tennessee Constitutions. Plaintiffs name as defendants those state and county officials, in their official capacity, they allege are responsible for the implementation and enforcement of the state statutory scheme as it pertains to voter eligibility and registration. They seek declaratory and injunctive relief, nominal damages, attorney’s fees and costs. Defendants Ray Barrett, Kim Buckley and James Johnson, the Administrators of Elections for

Case 3:08-cv-00187 Document 44 Filed 06/23/08 Page 1 of 9 PageID #: 150

2

Davidson, Madison and Shelby Counties respectively (collectively, the “County Officials”) have now filed

separate motions for summary judgment (Doc. Nos. 18, 29, 31). In his motion, Defendant Barrett asserts

only that the Plaintiffs’ claims against him are subject to dismissal under Rule 12(b)(6) for failure to state a

claim that complies with the pleading requirements of Rule 8(a)(2), citing Bell Atlantic Corp. v. Twombly,

127 S. Ct. 1955, 1964 (2007). Defendant Kim Buckley relies upon the same argument but also asserts

that (1) Plaintiff Jim Harris does not have standing to bring this action, such that the Court lacks subject-

matter jurisdiction over his claims; and (2) all Plaintiffs have failed to state a claim for which relief may be

granted against Defendant Buckley. Defendant James Johnson raises essentially the same points as

Buckley, but adds that that Plaintiff Terrence Johnson fails to state a claim for which relief may be

granted. Plaintiffs have filed their responses in opposition, and the motions are ripe for review.

For the reasons set forth below, the County Officials’ motions will be denied.

I.

FACTUAL BACKGROUND

Current Tennessee statute pertaining to the restoration of voting rights to convicted felons

provides that such persons are ineligible to apply for a voter registration card or to have the right to

suffrage restored unless they have paid all restitution ordered by the court as part of their sentence and

are current on all child-support obligations. Tenn. Code Ann. § 40-29-202(b) & (c). Plaintiffs Terrence

Johnson and Jim Harris are convicted felons who have served their sentences and wish to vote in

upcoming elections but are ineligible under § 40-29-202(c) to apply for restoration of their voting rights

because they owe past-due child support payments. Plaintiff Alexander Friedmann is likewise a

convicted felon who has served his sentence and seeks restoration of his voting rights. Friedmann

actually applied for such restoration in 2006, but his application was denied on the grounds that he

supposedly owed over $1,000 in restitution. Friedmann maintains that his criminal file does not reflect

that the sentencing court ordered him to pay restitution in any amount, but the State has nonetheless

refused to restore his voting rights.

Friedmann asserts that the Defendants have violated his constitutional rights by refusing to issue

him a voter registration card without offering documentation to prove he still has an obligation to pay

restitution. In the alternative, Friedmann, like the other two plaintiffs, alleges that the state statutory

scheme requiring convicted felons who have served their sentences to pay restitution and past-due child-

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3

support obligations prior to being eligible to apply to have their voting rights restored violates their rights

under the United States and Tennessee constitutions.

II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows district courts to dismiss a complaint which fails

“to state a claim upon which relief may be granted.” In the recent case of Bell Atlantic Corp. v. Twombly,

— U.S. —, 127 S. Ct. 1955 (2007), the Supreme Court attempted to clarify the law with respect to what a

plaintiff must plead in order to survive a Rule 12(b)(6) motion. The Court expressly disavowed the oft-

quoted standard established half a century ago by Justice Black in Conley v. Gibson, 355 U.S. 41 (1957),

which purported to recognize “the accepted rule that a complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Twombly, 127 S. Ct. at 1968 (quoting Conley, 355 U.S. at 45–46).

Characterizing that rule as one “best forgotten as an incomplete, negative gloss on an accepted pleading

standard,” Twombly, 127 S. Ct. at 1969, the Court stated that “a plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Id. at 1964–65 (citations and quotation marks omitted).

Further, the Court emphasized that even though a complaint need not contain detailed factual allegations,

its “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the

assumption that all the allegations in the complaint are true. . . .” Id. at 1965 (internal citations omitted).

Rather than clarifying matters, Twombly created “significant uncertainty” as to the appropriate

pleading requirements. Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir. 2007). See also

Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 337 (6th Cir. 2007) (“We have noted

some uncertainty concerning the scope of Bell Atlantic Corp. v. Twombly, . . . in which the Supreme Court

‘retired’ the ‘no set of facts’ formulation of the Rule 12(b)(6) standard . . . .”). Notwithstanding this

confusion, the modified standard embraced by the Sixth Circuit for reviewing 12(b)(6) motions in light of

Twombly appears to be as follows: On a motion to dismiss, the Court must construe the complaint in the

light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the

complaint contains “enough facts to state a claim to relief that is plausible on its face.” United States ex

rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 502 (6th Cir. 2007) (quoting Twombly, 127 S. Ct. at

Case 3:08-cv-00187 Document 44 Filed 06/23/08 Page 3 of 9 PageID #: 152

4

1974 (2007)). Thus, although the factual allegations in a complaint need not be detailed, they “must do

more than create speculation or suspicion of a legally cognizable cause of action; they must show

entitlement to relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)

(emphasis in original) (citing Twombly, 127 S. Ct. at 1964–65).

III. ANALYSIS AND DISCUSSION

A.

Plaintiffs’ Complaint Satisfies Rule 8 and Twombly.

The County Officials first argue, basically, that Plaintiffs have not alleged any wrongdoing, or any

specific action at all, on the part of the County Officials, and that the claims against them should therefore

be dismissed under Federal Rules 8(a) and 12(b)(6) in light of the Supreme Court’s holding in Twombly.

The Court finds that Twombly has not changed the federal rules’ requirement that a plaintiff’s complaint

“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v.

Pardus, 127 S. Ct. 2197, 2200 (2007) (quoting Twombly, 127 S. Ct. at 1964; ellipsis in original).

Plaintiffs clearly have met that standard. First, they assert that the Plaintiffs are all ineligible (or

are deemed ineligible by the state) to vote under the current statutory scheme in place in Tennessee, that

they wish to vote in the upcoming election, and that the state statutory scheme, by rendering them

ineligible to vote, violates their civil rights. Second, they claim that the Defendants are all jointly or

severally liable, in their official capacity, for acting under color of state law to implement and enforce the

statutory scheme that Plaintiffs contend is unconstitutional. The relief sought is primarily declaratory and

injunctive. Plaintiffs have stated a claim for relief that is “plausible on its face.” Bledsoe, 501 F.3d at 502.

B.

Plaintiffs Jim Harris and Terrence Johnson Have Standing to Bring their Claims.

The County Officials assert that Plaintiffs Harris and Johnson lack standing to bring their claims

because neither of them alleges that he actually attempted to have his voting rights restored.

Notwithstanding, both Harris and Johnson allege that they wish to vote in the upcoming election but are

ineligible to do so.

Their failure to seek restoration of their voting rights does not bar standing given that they are

clearly ineligible under the terms of the statute to have their voting rights restored, and the law of standing

does not require a futile gesture. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) (finding that failure to apply

for a handgun license was not a barrier to standing where the plaintiff would not have been eligible to file

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5

an application anyway, stating “We will not require such a futile gesture as a prerequisite for adjudication

in federal court” (quoting Williams v. Lambert, 46 F.3d 1275, 1280 (2d Cir. 1995)). See also Sporhase v.

Nebraska ex rel. Douglas 458 U.S. 941, 944 n.2 (1982) (noting that because the plaintiffs would not have

been granted a permit for the interstate transportation of water if they had applied for one, their failure to

submit an application for a permit did not deprive them of standing to challenge the legality of the

reciprocity requirement for obtaining a permit); Nyquist v. Mauclet, 432 U.S. 1, 6 n.7 (1977) (noting that a

plaintiff had standing despite his never having sought a student loan, where he was ineligible to receive

one based on his status as a resident alien and the language of the applicable statute—which the plaintiff

challenged—barring non-citizens from receiving student loans, and stating: “It is clear, therefore, that Art.

III adverseness existed between the parties and that the dispute is a concrete one. . . . [L]ittle is to be

served by requiring [plaintiff] now to go through the formality of submitting an application for a loan, in

light of the certainty of its denial.”); Odle v. Decatur County, 421 F.3d 386, 389 & n.2 (6th Cir. 2005)

(plaintiffs who presented a facial challenge to a statutory scheme requiring adult entertainment

establishments to obtain a license prior to doing business had standing to bring such a claim, despite not

having applied for a license).

Moreover, the Court notes that the statute provides that “a person shall not be eligible to apply for

a voter registration card” unless he has paid all restitution ordered by the court as part of the sentence

and is current on all child-support obligations. Tenn. Code Ann. § 40-29-202(b) & (c). The statute

therefore makes it clear that Plaintiffs Johnson and Harris are ineligible not only to have their voter rights

restored under the terms of the statute but even to apply such for such restoration. Failure to apply

therefore cannot preclude them from bringing suit to challenge the provisions of the statute.

C.

Plaintiffs Have Stated a Claim for Relief Against the County Officials.

Finally, the County Officials argue that Plaintiffs have not stated a claim as to the County Officials

themselves because Plaintiffs cannot trace their injuries to any action taken by the County Officials, nor

show that any judgment against the County Officials would redress their alleged injuries. Along the same

lines, the County Officials appear to be arguing that they cannot be held liable under the doctrine of

respondeat superior for § 1983 violations unless they actually violated Plaintiffs’ rights or caused such

violations.

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6
As an initial matter, it should be recognized that claims against the County Officials, in their official capacity, are tantamount to claims brought against the counties themselves in which the officials operate. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficialcapacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. . . .”); Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (“As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”). As the County Officials suggest, there is no respondeat superior liability under § 1983. Monell, 436 U.S. at 690. It is nonetheless clear, however, that local government units are “persons” for purposes of § 1983, and they “can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Id.
In the present case, Plaintiffs allege that the State of Tennessee “has not implemented a set of procedures that all counties have to follow when determining whether a person convicted of an infamous crime owes [legal financial obligations] and, if so, whether that person has satisfied his or her [legal financial obligations.” (Compl. ¶ 24.) It may be reasonably inferred from this statement that, in the absence of a standard established by the state, the individual counties have been required to develop their own policies and procedures for determining whether a convicted felon meets all the requirements of Tenn. Code Ann. § 40-29-202 and is therefore eligible to have his voting rights restored. If relief is granted, the county officials will have the responsibility of dismantling the currently established procedure for dealing with voter rights restoration. Under Monell, it appears the County Officials can be sued under § 1983 for implementing or executing policies in accordance with the state law that Plaintiffs allege to be unconstitutional. The doctrine of respondeat superior is not a bar to Plaintiff’s claims here.
The County Officials next argue, however, that Plaintiffs do not allege that the County Officials took any action at all on behalf of the counties they represent, much less any action that might have violated the Plaintiffs’ constitutional rights, such that there can be no “fairly traceable causal connection” between the claimed injury and conduct by the County Officials. Larson v. Valente, 456 U.S. 228, 239 (1982) (internal quotation marks and citations omitted)), and that, in any event, they are not in a position
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7
to redress the Plaintiffs’ alleged injuries. In United States v. Mississippi, 380 U.S. 128 (1965), the federal government brought suit against
the State of Mississippi, the three members of the Mississippi State Board of Election Commissioners and six county Registrars of Voters, alleging that state law provisions pertaining to voter registration violated federal law and that the defendants and their agents had engaged in and would, unless restrained, continue to engage in acts that violated the right of black citizens of Mississippi to vote. The district court dismissed the complaint on various grounds. On appeal, the Supreme Court reversed the dismissal as to the three Election Commissioners on the basis that the duties and obligations imposed upon those defendants by statute meant that, should the federal government prove its case and obtain an injunction, “it would be natural to assume that such an order should run against the Board of Election Commissioners.” Id. at 141.
Similarly, in concluding that the district court had erred in granting the motion to dismiss brought by the six county registrars, the Court noted: “[T]he complaint charged that the registrars had acted and were continuing to act as part of a state-wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote solely because of their color. On such an allegation the joinder of all the registrars as defendants in a single suit is authorized by Rule 20(a) of the Federal Rules of Civil Procedure. . . .” Id. at 142. The Court then quoted Rule 20’s provision that “all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.” Id. (quoting Fed. R. Civ. P. 20(a)). See also League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977) (“Rule 20(a) imposes two specific requisites for the joinder of parties: (1) a right to relief must be asserted by, or against, each plaintiff or defendant relating to or arising out of the same transaction or occurrence; and (2) some question of law or fact common to all the parties will arise in the action.” (citation omitted)); Hill v. Tennessee, 868 F. Supp. 221, 226 (M.D. Tenn. 1994) (rejecting the county’s argument that it was not a proper party to the lawsuit as it was only acting as an agent of the state, and holding that the county was an indispensible party under Fed. R. Civ. P. 19(a) because dismissal of the county “would render it impossible for this Court to grant complete relief
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8
as requested by the Plaintiff, in the event that he is successful in his claims”). On the basis of the referenced precedent, it appears that Plaintiffs have stated a viable claim for
injunctive and declaratory relief against the County Officials in the present case. The statutory scheme at issue provides, with respect to the County Officials’ role in the process:
Any person issued a certificate of voting rights restoration pursuant to this section shall submit the certificate to the administrator of elections in the county in which the person is eligible to vote. The administrator of elections shall send the certificate to the coordinator of elections who shall verify that the certificate was issued in compliance with this section. Upon determining that the certificate complies with the provisions of this section, the coordinator shall notify the appropriate administrator of elections and, after determining that the person is qualified to vote in that county . . . , the administrator shall grant the application for a voter registration card. Tenn. Code Ann. § 40-29-203(d). In other words, the County Officials, as the administrators of elections within their respective counties, hold the final hoop through which an applicant must jump to obtain restoration of his voting rights. If notified that a person previously convicted of a felony is not eligible for restoration of his voting rights despite having completely satisfied the terms of his sentence, by reason of outstanding child-support payments or an unsatisfied restitution order, the administrator of elections is the person charged with rejecting (or granting) the applicant’s request for restoration of his voting rights. The County Officials, in Plaintiffs’ words, “play[ ] the ultimate and decisive role in restoration of felon voting rights.” (Doc. No. 33, at 6.) Plaintiffs seek relief against them in the form of requiring them to process the Plaintiffs’ applications for restoration of voting rights and to issue them a voter registration card. Accordingly, if injunctive or declaratory relief issues in this case, it would not be complete unless it included the County Officials within its purview. Moreover, as previously discussed, filing a formal request to perform some act is not necessary where the request would be denied and the gesture futile. A logical corollary to that premise is that it is not necessary for the party who is in the position to deny the request, and would in all likelihood have denied the request if Plaintiffs had made it, actually to have denied the plaintiffs’ specific request in order to be subject to a lawsuit challenging the statutory basis for denying the request. Accordingly, the Court finds that the Plaintiffs have asserted viable claims against the County Officials in this case.
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9 IV. CONCLUSION
For the reasons stated above, the County Officials’ motions to dismiss will be denied. An appropriate Order will enter.
Thomas A. Wiseman, Jr. Senior U.S. District Judge
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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRENCE JOHNSON, JIM HARRIS, )

ALEXANDER FRIEDMANN,

)

and JOSHUA ROBERTS

)

)

Plaintiffs,

)

)

vs.

)

)

PHIL BREDESEN, Governor of the State )

Tennessee, BROOK THOMPSON,

)

Coordinator of Elections,

)

RILEY DARNELL, Secretary of State of )

Tennessee, JAMES JOHNSON,

)

Administrator of Elections for Shelby

)

County, KIM BUCKLEY, Administrator of )

Elections for Madison County, and

)

RAY BARRETT, Administrator of Elections)

for Davidson County, in their official

)

capacities,

)

)

Defendants.

)

____________________________________)

Case No. 03-08-0187
Hon. Thomas A. Wiseman, Jr. U.S. District Court Judge
Hon. Juliet Griffin U.S. Magistrate Judge

AMENDED COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, AND NOMINAL MONETARY DAMAGES

INTRODUCTION

1. This lawsuit seeks declaratory and injunctive relief to invalidate Sections

40-29-202(b) and (c) of the Tennessee Code which condition restoration of voting rights

for people convicted of infamous crimes on the payment of legal financial obligations

(LFOs), namely restitution and child support payments. By denying the vote to those

who have not paid these LFOs, the State violates the fundamental right to vote and

discriminates among citizens on the basis of wealth. This lawsuit does not challenge the

Case 3:08-cv-00187 Document 57 Filed 07/28/08 Page 1 of 14 PageID #: 216

state statutes disfranchising convicted felons while they are in prison, on probation or on parole, the State’s ability to impose LFOs at the time of sentencing, or its ability to collect those debts by methods other than the refusal to restore voting rights upon completion of the non-financial terms of the sentence.
JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1973j(f). This suit is authorized by 42 U.S.C. § 1983. This Court may exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) to hear claims under the Constitution and laws of Tennessee. This Court has jurisdiction to grant both declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 3. Venue is proper in this court pursuant to 28 U.S.C. § 1391(b) because Defendants Bredesen, Darnell, Thompson, and Barrett are situated within this judicial district.
PLAINTIFFS 4. Terrence Johnson is a citizen of the United States and a resident of Shelby County, Tennessee. He was convicted of federal wire fraud in or about 1999 and ordered to pay over $40,000 in restitution for his offense. He has completed his term of imprisonment, parole, and probation for that offense. Johnson also has a daughter for whom he owes about $1,200 in overdue child support payments, but he currently has custody of his child. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding LFOs and child support payments.
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5. Jim Harris is a citizen of the United States and a resident of Madison County, Tennessee. He was convicted of drug offenses in or about 1995, attempted burglary and a felony drug offense in or about 1996, and a felony drug offense in or about 2001. He has completed his terms of imprisonment, parole, and probation for all of those offenses. Harris also has a daughter for whom he owes about $2,500 in overdue child support payments, but he currently has custody of his child. He wishes to vote in upcoming elections, but remains ineligible because of his outstanding child support payments.
6. Alexander Friedman is a citizen of the United States and a resident of Davidson County, Tennessee. He was convicted of assault and aggravated armed robbery in 1989, and has completed his term of imprisonment, parole, and probation for this offense. Friedman applied for restoration of his voting rights in 2006, but the State denied his application on the ground that he owes over $1,000 in restitution. He wishes to vote in upcoming elections, but the State refuses to restore his voting rights.
7. Joshua Roberts is a citizen of the United States and a resident of Davidson County, Tennessee. Upon information and belief, he was convicted of forgery, evading arrest and tampering with evidence in the State of Missouri between 1999 and 2001, and he has completed his term of imprisonment, parole, and probation for these offenses. Roberts applied for restoration of his voting rights in April 2008, but the State denied his application on the ground that he owes over $7,000 in outstanding child support payments. He wishes to vote in upcoming elections, but the State refuses to restore his voting rights.
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DEFENDANTS 8. Phil Bredesen is the Governor of the State of Tennessee. As the State’s chief executive officer, he is ultimately responsibility for implementing Tennessee law, including violations of election and other criminal laws, rules, and regulations. He is sued in his official capacity for actions that he took under color of state law. 9. Brook Thompson is the Coordinator of Elections for the State of Tennessee. He is the State’s chief administrative election officer and is responsible for implementing voting rules and regulations as necessary to carry out the provisions of the election code, including the promulgation of procedures for, and the receipt and administration of applications for, voter registration. Tenn. Code Ann. § 2-11-201. He is sued in his official capacity for actions that he took under color of state law. 10. Riley Darnell is the Secretary of State for the State of Tennessee and is ultimately responsible for developing and implementing rules and regulations as necessary to carry out the provisions of the election code. Tenn. Code. Ann. § 2-11-201. He is sued in his official capacity for actions that he took under color of state law. 11. James Johnson is the administrator of elections for Shelby County, Tennessee, and is responsible for the execution of all elections in the county. Tenn. Code Ann. § 2-12-116. He is sued in his official capacity for actions that he took under color of state law. 12. Kim Buckley is the administrator of elections for Madison County, Tennessee, and is responsible for the execution of all elections in the county. Tenn. Code Ann. § 2-12-116. She is sued in her official capacity for actions that she took under color of state law.
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13. Ray Barrett is the administrator of elections for Davidson County,
Tennessee, and is responsible for the execution of all elections in the county. Tenn. Code
Ann. § 2-12-116. He is sued in his official capacity for actions that he took under color
of state law.
FACTUAL ALLEGATIONS
14. On or about May 17, 2006, the Tennessee Legislature amended Title 40,
Chapter 29 of the Tennessee Code to streamline the process by which individuals with
criminal convictions may seek restoration of their voting rights, and the Governor signed
the bill into law on or about June 5, 2006.
15. The amended law provides that:
A person rendered infamous and deprived of the right of suffrage by the judgment of any state or federal court is eligible to apply for a voter registration card and have the right of suffrage restored upon:
(1) Receiving a pardon, except where such pardon contains special conditions pertaining to the right of suffrage; (2) The discharge from custody by reason of service or expiration of the maximum sentence imposed by the court for any such infamous crime; or (3) Being granted a certificate of final discharge from supervision by the board of probation and parole pursuant to § 40-28-105, or any equivalent discharge by another state, the federal government, or county correction authority. Tenn. Code Ann. § 40-29-202(a).
16. The law further states that:
Notwithstanding the provisions of subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored unless such person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence . . . [and] unless such person is current in all child support obligations. Tenn. Code Ann. §§ 40-29-202(b) and (c) (emphasis added).
17. An individual who seeks restoration of his or her voting rights must
complete a voter registration form and obtain a “Certificate of Restoration” form from the
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local county election office. The Certificate of Restoration form must be filled out by an agent or officer of the pardoning authority (probation or parole officer), the supervising or incarcerating authority (prison or jail), or the circuit or criminal court (clerk).
18. Prior to the 2006 amendment, Tennessee did not require individuals with criminal convictions who had otherwise completed all the terms of their sentence to pay all restitution or to be current in all child support obligations before being eligible to seek restoration of their voting rights.
19. Plaintiff Terrence Johnson wishes to vote in upcoming elections, but remains ineligible pursuant to Tenn. Code Ann. §§ 40-29-202(b) and (c) because he owes restitution and outstanding child support payments.
20. Plaintiff Jim Harris wishes to vote in upcoming elections, but remains ineligible pursuant to Tenn. Code Ann. §§ 40-29-202(c) because of his outstanding child support payments.
21. Plaintiff Joshua Roberts wishes to vote in upcoming elections, but remains ineligible pursuant to Tenn. Code Ann. §§ 40-29-202(c) because of his outstanding child support payments.
22. The presentence report regarding Mr. Friedman’s 1989 criminal conviction states that his offense resulted in a loss of $1,000 to the victim, but his criminal history record does not show that the court ordered him to pay restitution as part of his sentence.
23. In or about September 2006, Mr. Friedman’s former parole officer, Robert Denman, searched Plaintiff Friedman’s criminal file and did not find any order from the sentencing court instructing Plaintiff Friedman to pay restitution.
6 Case 3:08-cv-00187 Document 57 Filed 07/28/08 Page 6 of 14 PageID #: 221

24. Plaintiff Friedman applied for restoration of his voting rights in 2006, but the State denied his application pursuant to Tenn. Code Ann. §§ 40-29-202(b) on the ground that he owes over $1,000 in restitution despite the lack of any court order to that effect.
25. Plaintiff Friedman wishes to vote in upcoming elections, but the State refuses to restore his voting rights.
26. The State of Tennessee has not implemented a set of procedures that all counties have to follow when determining whether a person convicted of an infamous crime owes LFOs and, if so, whether that person has satisfied his or her LFOs.
COUNT ONE SECTION 40-29-202(b) of the TENNESSEE CODE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION 27. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 28. Section 1 of the Fourteenth Amendment provides: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 29. Section 40-29-202(b) of the Tennessee Code requires people convicted of an infamous crime to pay all restitution associated with their conviction before being eligible for restoration of their voting rights. 30. Tennessee’s requirement that people convicted of an infamous crime pay all restitution associated with their conviction before being eligible for restoration of their voting rights unlawfully denies Plaintiffs equal protection under the law.
7 Case 3:08-cv-00187 Document 57 Filed 07/28/08 Page 7 of 14 PageID #: 222

31. The requirement set forth in Section 40-29-202(b) also negatively and disproportionately impacts indigent people in violation of the equal protection clause.
COUNT TWO SECTION 40-29-202(c) of the TENNESSEE CODE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION
32. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.
33. Section 40-29-202(c) of the Tennessee Code requires people convicted of an infamous crime to be current on child support payments.
34. Tennessee law does not deny the right to vote to an individual who owes outstanding child support payments, but who has not been convicted of an infamous crime.
35. Tennessee’s requirement that people convicted of an infamous crime be current on their child support payments before restoring their voting rights unlawfully denies Plaintiffs Johnson, Harris, and Roberts equal protection under the law.
36. The requirement set forth in Section 40-29-202(b) also negatively and disproportionately impacts indigent people in violation of the equal protection clause.
COUNT THREE VIOLATION OF THE TWENTY-FOURTH AMENDMENT
OF THE UNITED STATES CONSTITUTION 37. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.
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38. The Twenty-Fourth Amendment of the Constitution of the United States provides:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be abridged by the United States or any State for reason or failure to pay any poll tax or other tax. 39. Sections 40-29-202(b) and (c) of the Tennessee Code require people convicted of an infamous crime to be current on child support payments and pay all restitution associated with their conviction before being eligible for restoration of their voting rights. 40. Tennessee’s requirement that people convicted of an infamous crime pay all of their LFOs as a precondition to being eligible for restoration of their voting rights violates the Twenty-fourth Amendment of the Constitution of the United States.
COUNT FOUR VIOLATION OF EX POST FACTO CLAUSES OF THE UNITED STATES AND TENNESSEE CONSTITUIONS 41. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 42. Article 1, Section 11 of the Tennessee Constitution states that “laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.” 43. Article 1, Section 9 of the Constitution of the United States provides that: “No . . . ex post facto law shall be passed.”
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44. Because Plaintiff Johnson was convicted of a crime prior to the passage of Tenn. Code Ann. § 40-29-202(b) and has completed the terms of his sentence, Defendants’ denial of his right to vote based on his failure or inability to pay the restitution associated with his sentence violates the state and federal ex post facto clauses.
45. Because Plaintiffs Johnson, Harris, and Roberts accrued outstanding child support payments prior to the passage of Tenn. Code Ann. § 40-29-202(c), Defendants’ denial of their right to vote based on their failure or inability to pay their outstanding child support violates the state and federal ex post facto clauses.
46. Because Plaintiff Friedman was convicted of a crime prior to the passage of Tenn. Code Ann. § 40-29-202(b), Defendants’ denial of his right to vote based on his failure or inability to pay any restitution that he might owe violates the state and federal ex post facto clauses.
COUNT FIVE VIOLATION OF PRIVILEGES AND IMMUNITIES CLAUSES OF THE UNITED STATES AND TENNESSEE CONSTITUTIONS 47. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 48. Section 1 of the Fourteenth Amendment of the Constitution of the United States provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” 49. Article XI, Section 8 of the Tennessee Constitution states that the Tennessee Legislature “shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or
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individuals, rights, privileges, immunities, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.”
50. State restrictions that deny the fundamental right to vote based upon the failure to pay child support and/or restitution deny rights, privileges, immunities and the protections of equality afforded by the United States and Tennessee Constitutions.
COUNT SIX VIOLATION OF DUE PROCESS CLAUSES OF THE UNITED STATES AND TENNESEE CONSTITUTIONS 51. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 52. Section 1 of the Fourteenth Amendment of the Constitution of the United States prohibits any state from depriving “any person of life, liberty, or property without due process of law.” 53. Article I, Section 8 of the Tennessee Constitution provides that no person shall be “deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” 54. The State of Tennessee has refused to restore Plaintiff Friedman’s voting rights despite the State’s failure to produce any documentation showing that Mr. Friedman owes any outstanding restitution. 55. The State’s refusal to restore Plaintiff Friedman’s voting rights violates his right to due process under the Fourteenth Amendment of the Constitution of the United States and Article I, Section 8 of the Tennessee Constitution.
11 Case 3:08-cv-00187 Document 57 Filed 07/28/08 Page 11 of 14 PageID #: 226

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court to: (1) Exercise supplemental jurisdiction over Plaintiffs’ claims brought under the Constitution and laws of Tennessee; (2) Declare that the denial of Plaintiff Friedman’s right to vote based on his alleged failure to pay outstanding restitution despite the lack of any court order showing that such restitution is owed violates his right to due process under Section 1 of the Fourteenth Amendment of the Constitution of the United States and Article I, Section 8 of the Tennessee Constitution; (3) Declare that the denial of Plaintiffs’ right to vote based on their failure or inability to pay LFOs, including Plaintiff Friedman’s right to vote if the Defendants present evidence showing that he does owe restitution, violates the Fourteenth and Twenty-fourth Amendments of the Constitution of the United States, the Ex Post Facto Clauses of the United States and Tennessee Constitutions, and the Privileges and Immunities Clauses of the United States and Tennessee Constitutions; (4) Enjoin Defendants and their agents, employees, and representatives from denying Plaintiffs their right to register and vote, and direct Defendants to prepare and circulate a state registration form in accordance with this Court’s declarations; (5) Award Plaintiffs nominal damages for the denials of their right to vote; (6) Award Plaintiffs their expenses, costs, fees, and other disbursements associated with the filing and maintenance of this action, including reasonable attorneys’ fees pursuant to 42 U.S.C. §§ 1988 and 1973l(e);
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(7) Exercise continuing jurisdiction over this action during the enforcement of
its judgment; and
(8) Award any other and further relief this Court deems proper and just.
DATED this 17th day of July, 2008.
Respectfully submitted,
By: /s/ Nancy Abudu______ Nancy G. Abudu* Laughlin McDonald* Neil Bradley* AMERICAN CIVIL LIBERTIES UNION VOTING RIGHTS PROJECT 230 Peachtree Street NW Suite 1440 Atlanta, Georgia 30303 Tel: (404) 523-2721 Fax: (404) 653-0331 lmcdonald@aclu.org nbradely@aclu.org nabudu@aclu.org *Admitted pro hac vice
Tricia Herzfeld (Bar No. 026014) AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE P.O. Box 120160 Nashville, Tennessee 37212 Tel: (615) 320-7142 Fax: (615) 320-7260 tricia@aclu-tn.org
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CERTIFICATE OF SERVICE I hereby certify that on the 17th day of July, 2008, a copy of the foregoing was served on counsel of record for defendants, addressed as follows, via the court’s electronic filing system: ROBERT E. COOPER, JR. JANET M. KLEINFELTER WILLIAM N. HELOU Special Litigation Division 425 5th Avenue North Nashville, Tennessee 37243 SUE B.CAIN ALLISON BUSSELL 108 Metropolitan Courthouse P.O. Box 196300 Nashville, Tennessee 37219 JOHN L. RYDER One Commerce Square, Suite 2700 Memphis, Tennessee 38103 DANIEL PRESLEY 160 North Main Street, Suite 2700 Memphis, Tennessee 38103 JAMES I. PENTECOST JON A. YORK 106 Stonebridge Blvd. Jackson, TN 38305
/s/ Nancy Abudu______ Nancy Abudu
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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRENCE JOHNSON, JIM HARRIS, )

ALEXANDER FRIEDMANN,

)

and JOSHUA ROBERTS

)

)

Plaintiffs,

)

)

vs.

)

)

PHIL BREDESEN, Governor of the State )

Tennessee, BROOK THOMPSON,

)

Coordinator of Elections,

)

RILEY DARNELL, Secretary of State of )

Tennessee, JAMES JOHNSON,

)

Administrator of Elections for Shelby

)

County, KIM BUCKLEY, Administrator of )

Elections for Madison County, and

)

RAY BARRETT, Administrator of Elections)

for Davidson County, in their official

)

capacities,

)

)

Defendants.

)

____________________________________)

Case No. 03-08-0187
Hon. Thomas A. Wiseman, Jr. U.S. District Court Judge
Hon. Juliet Griffin U.S. Magistrate Judge

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OR IN THE
ALTERNATIVE MOTION FOR PARTIAL SUMMARY JUDGMENT

I. STATEMENT OF FACTUAL AND LEGAL ISSUES

Plaintiffs have moved the Court for judgment on the pleadings pursuant to Fed. R.

Civ. P. 12(c), or in the alternative for partial summary judgment pursuant to Fed. R. Civ.

P. 56(a). They contend that Tenn. Code Ann. §§ 40-29-202(b) and (c) (the “Statutes”),

which condition restoration of voting rights for people convicted of infamous crimes, or

felonies, on the payment of legal financial obligations (LFOs), i.e., restitution and child

support payments, are facially unconstitutional in violation of the Equal Protection

Case 3:08-cv-00187 Document 69 Filed 08/22/08 Page 1 of 24 PageID #: 317

Clause of the Fourteenth Amendment, the Twenty-Fourth Amendment, the Ex Post Facto Clauses of the United States and Tennessee Constitutions, and the Privileges and Immunities Clause of the United States and Tennessee Constitutions.1 Plaintiffs Johnson and Roberts have been convicted of felonies, and have served their sentences but are still ineligible to vote because they have not paid their LFOs.
Plaintiffs further contend that the pleadings and the plaintiffs’ declarations show that there is no genuine issue as to any material fact concerning plaintiffs’ claim that the Statutes are facially unconstitutional and that plaintiffs are entitled to partial summary judgment as a matter of law. II. PROCEDURAL HISTORY
Plaintiffs filed the instant lawsuit on February 25, 2008, seeking to invalidate Tenn. Code Ann. §§ 40-29-202(b) and 40-29-202(c), which condition restoration of voting rights for people convicted of infamous crimes on the payment of legal financial obligations (LFOs), namely restitution and child support. Compl. at ¶ 1. Defendants Kim Buckley, James Johnson, and Ray Barrett filed a motion to be dismissed from the case, which this Court denied. Order Denying Mot. Dismiss, June 23, 2008. This Court held a case management conference on April 7, 2008 and set the deadlines for discovery and the filing of dispositive motions. Case Management Order, April 11, 2008. This Court held another scheduling conference on July 25, 2008, at which time defense counsel for Defendants Bredesen, Thompson, and Darnell indicated that they would file a motion seeking a resolution of Plaintiffs’ constitutional claims as a matter of law, and
1Tenn. Code Ann. § 40-20-112 defines all felonies as being infamous crimes. For purposes of this memorandum, Plaintiffs use the terms “infamous crime” and “felony” interchangeably.
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this Court established an expedited motion schedule. Case Management Order, July 28, 2008. Plaintiffs moved to amend their complaint on July 17, 2008, to add Joshua Roberts as a Plaintiff and this Court granted that motion. Order Granting Mot. Amend Compl., July 28, 2008. On August 1, 2008, Defendants Bredesen, Thompson, and Darnell filed a Fed. R. Civ. P. 12(c) motion for a judgment on the pleadings, which Plaintiffs have opposed. III. APPLICABLE LEGAL STANDARDS
A. Fed. R. Civ. P. 12(c). Courts review a Fed. R. Civ. P. 12(c) motion for judgment on the pleadings under the same standard used for analyzing a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). When ruling on a Fed. R. Civ. P. 12(c) motion, the court must assume that the complaint’s factual allegations are true and should construe all inferences from them in the non-moving party’s favor. U.S. v. Ford Motor Co., 532 F.3d 496, 502 (6th Cir. 2008); Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). In general, a court may not consider materials outside the pleadings when resolving a Fed. R. 12(c) motion. Hildebrand v. Board of Trustees, 607 F.2d 705, 709-10 (6th Cir. 1979). A court also must not look at whether the plaintiff will “ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969-70 (2007), the Court held that the “no set of facts” language in Conley v. Gibson, 355 U.S. 41 (1957), “has earned its retirement,” and that a court should look instead for “plausibility” in a
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plaintiff’s claim in ruling on a defendant’s motion to dismiss. The logic and holding of Twombly indicate that the “no set of facts” language is similarly not applicable to a defendant’s opposition to a plaintiff’s motion for judgment on the pleadings, and that the motion should be granted if the plaintiff is entitled to relief. See, e.g., Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, 479 F.2d 478, 480 (6th Cir. 1973) (a motion for judgment on the pleadings should be granted “if the moving party is . . . clearly entitled to judgment”).
B. Fed. R. Civ. P. 56(a). A plaintiff may move under Fed. R. Civ. P. 56(a) “for summary judgment on all or part of the claim.” Here, Plaintiffs have moved for summary judgment on their claim that the challenged Statutes are facially unconstitutional. Fed. R. Civ. P. 56(c) provides that a judgment should be rendered “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Plaintiffs contend that there are no material facts in dispute in this case involving their facial challenge to the state Statutes, and that they are entitled to judgment as a mater of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (a trial judge “shall . . . grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law”). As the Court made clear in Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), “Rule 56 must be construed not only for the rights of persons asserting . . . defenses . . . but also for the rights of persons opposing such . . . defenses to demonstrate in the manner provided by the Rule, prior to trial, that the . . . defenses have no factual basis.”
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IV. THE FACTS ARE UNDISPUTED Tennessee law denies voting rights to people convicted of a felony unless the
state restores that right. Tenn. Const. art. IV, § 2; Tenn. Code Ann. §§ 40-20-112, 40-29201 – 205. Voting rights cannot be restored, however, unless an ex-felon pays all LFOs in connection with a conviction or is current on child support payments. Tenn. Code Ann. §§ 40-29-202(b) and 40-29-202(c). Plaintiffs Johnson and Roberts were convicted of felonies and have completed their terms of imprisonment, parole, and probation for their offenses. Despite that, they are not eligible to vote because they have not paid all their LFOs in connection with their conviction, or are not current on child support payments. Decls. of Terrence Johnson and Joshua Roberts. V. ARGUMENT
A. Tennessee’s Re-Enfranchisement Scheme Is Subject To Strict Scrutiny Under The Equal Protection Clause And Is Facially Unconstitutional.
Section 1 of the Fourteenth Amendment guarantees the right of all citizens to equal protection under the law. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”).2 Because the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, the Court has characterized the right to vote as a fundamental political right. Reynolds v. Sims, 377 U.S. 533, 562 (1964) (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). Because of the fundamental role voting has in the functioning of America’s democratic institutions, “[a]ny unjustified discrimination in 2 The right to vote is in fact protected by more constitutional provisions than any right we have as Americans, i.e., the First, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments.
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determining who may participate in political affairs or in the selection of public officials
undermines the legitimacy of representative government.” Kramer v. Union Free Sch.
No. 15, 395 U.S. 621, 626 (1969) (holding that state statute which limited franchise in
certain school districts to owners or lessees of taxable property and parents or guardians
of children in public schools violated the equal protection clause). I n R i c h a r d s o n v .
Ramirez, 418 U.S. 24, 56 (1974), the Court held that a state could, consistent with the
Equal Protection Clause, exclude from the franchise convicted felons who had completed
their sentences and paroles because “the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment.”3 However, the Court “did not
reach respondents’ alternative contention that there was such a total lack of uniformity in
county election officials’ enforcement of the challenged state laws as to work a separate
denial of equal protection.” Id. Thus, merely because Richardson held that a state could
exclude felons from the franchise, it does not stand for the proposition that constitutional
standards do not apply to procedures adopted by a state to restore the right to vote.
Felons may not have a right to vote, but they have a right to constitutional standards in
the restoration of the right to vote. In Bynum v. Conn. Comm’n on Forfeited Rights, 410 F.2d 173, 175-76 (2nd Cir.
3 Section 2 of the Fourteenth Amendment provides: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number the male citizens twenty-one years of age in such State” (emphasis added).
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1969), the court recognized that the issue before it of whether a state, having agreed to permit ex-felons to regain their vote and having established administrative machinery for this purpose, can then deny access to this relief, solely because one is too poor to pay the required fee, was distinct from the question posed in Richardson. Accordingly, it concluded that the plaintiff’s claim “is substantial,” and reversed the lower court’s denial of plaintiff’s request for a three-judge court to determine the constitutionality of requiring payment of a fee for filing a petition to restore voting rights.
Nothing in Richardson holds or suggests that a constitutionally infirm reenfranchisement scheme would have an affirmative sanction in Section 2 of the Fourteenth Amendment. Nor does Richardson insulate the Statutes from challenges to deprivations of the vote that impinge on the basic values enshrined in the Equal Protection Clause. In Hunter v. Underwood, 471 U.S. 222, 233 (1985), for example, the Court struck down Alabama’s disfranchisement scheme in light of evidence that it was enacted to discriminate against African-Americans. Another example is Hobson v. Pow, 434 F. Supp. 362 (N.D. Ala. 1977), in which the court held that Alabama law disfranchising men, but not women, convicted of spousal abuse violated the Equal Protection Clause.
Defendants’ contention that Tennessee’s restoration of voting rights to people convicted of infamous crimes does not require any constitutional safeguards runs directly counter to Richardson, and Hunter, as well as Hobson. Although disfranchisement and re-enfranchisement statutes concern voters with criminal convictions, the laws are distinct in both purpose and effect. In light of the fundamental role that the right to vote plays in the legitimacy of America’s representative system, extensions of the state’s
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narrow constitutional authority to abrogate that right should not be recognized unless specific textual support for such exemptions can be found in the Constitution. The Fourteenth Amendment contains no such language and the Richardson decision does not shield Tennessee’s re-enfranchisement scheme from constitutional scrutiny.
While a state may deprive felons of the right to vote (even though it is not mandated), and may allow ex-felons to regain this fundamental right (also voluntary), it cannot do so in an unconstitutional manner. Disfranchising only African Americans or men, or limiting restoration of voting rights to Caucasians or women, would plainly violate the constitution. By the same token, limiting the restoration of voting rights to ex-felons based on their economic status should similarly be found unconstitutional..
1. The restoration of voting rights should not hinge on one’s payment of, or ability to pay, LFOs.
Whenever a state adopts a process for determining who is qualified to vote, individuals have a substantive right under the Equal Protection Clause to participate in elections on an equal basis as other qualified voters. Lubin v. Parish, 415 U.S. 709, 713 (1974). See also Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (recognizing that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction”). Once a state grants the right to vote on equal terms, it may not value one person’s vote more than another’s through either arbitrary or disparate treatment. Bush v. Gore, 531 U.S. 98, 104-05 (2000).
When determining whether or not a state election law or policy violates the Equal Protection Clause, a court must first consider the character and magnitude of the asserted injury to the rights that the Fourteenth Amendment protects. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (applying strict scrutiny standard in ruling that an Ohio statute
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which required independent candidates running for President to file their nomination papers earlier than political party candidates violated Equal Protection Clause). The court then should identify and evaluate the precise interests that the state puts forward to justify the burden that its law or policy imposes on a plaintiff. Id. “In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Id. Once a state election law subjects equal protection rights to ‘severe’ restrictions, the state law must be “narrowly drawn to advance a state interest of compelling importance.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (internal citations omitted). However, when the challenged law imposes only “reasonable, nondiscriminatory restrictions” upon a voter’s equal protection rights, “the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” Id. at 434, citing Anderson, 460 U.S. at 788.
The Supreme Court has held that a state’s sole interest when it comes to voting “is limited to the power to fix qualifications.” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 668 (1966). In Harper, the Court struck down a Virginia constitutional provision which required voters to pay a poll tax and held that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id. at 666 (emphasis added). “[W]ealth or fee paying has . . . no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.” Id. at 670. The Court reasoned that “[w]ealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process” and that “[t]o introduce wealth or
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payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor.” Id. at 668. The Court further determined that the constitutional analysis would be the same regardless of “whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it.” Id. See also Johnson v. Governor of State of Florida, 405 F.3d 1214, 1216 n.1 (11th Cir. 2005) (relying upon Harper for the proposition that “[a]ccess to the franchise cannot be made to depend on an individual’s financial resources”).
Because the right to vote is fundamental, state statutes that distribute the vote to some citizens while denying it to others are subject to strict scrutiny. Kramer, 395 U.S. at 627. Such classifications “cannot be upheld unless . . . supported by sufficiently important state interests” that are “closely tailored to effectuate only those interests.” Zablocki v. Redhail, 434 U.S. 374, 388 (1978). See also Kramer, 395 U.S. at 627 (exclusions from the franchise must be “necessary to promote a compelling state interest”); Dunn v. Blumstein, 405 U.S. at 343. Payment or non-payment of restitution is irrelevant to a voter’s qualifications and, as such, voting should not hinge on payment of, or one’s ability to pay, restitution.
The Court has invalidated wealth based qualifications in a variety of other contexts. In M.L.B. v. S.L.J., 519 U.S. 102, 124 and n.14 (1996), relying upon Harper and other voting and ballot access cases, the Court invalidated under the Fourteenth Amendment a Mississippi statute which required the plaintiff to pay record preparation fees prior to appealing revocation of her parental rights. According to the Court, access to judicial processes cannot “turn on ability to pay.” Id. In Bearden v. Georgia, 461 U.S. 660 (1983), the Court ruled that a state may not revoke an indigent defendant’s probation
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for failure to pay a fine and restitution without first determining whether the defendant made any bona fide attempts to pay the debt or whether an alternative form of punishment existed. The Court reasoned that “[t]o do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.” Id. at 672-73.
In Zablocki, 434 U.S. at 389-91, the Court held that a Wisconsin statute that denied the fundamental right to marry to individuals who had, at the time they sought to marry, outstanding child support obligations violated the Equal Protection Clause. The Court ruled that the state law denying access to a fundamental right could not be justified merely because that law may, in some instances, provide an incentive for individuals to make support payments. Id. at 389. The Court also has invalidated laws that result in disparate treatment when it comes to collecting child support. For example, Stanton v. Stanton, 421 U.S. 7 (1975), involved a challenge to a Utah statute which set the age of majority for child support purposes as 18 for females and 21 for males. The Court held that males and females cannot be treated differently for child support purposes consistently with the Equal Protection Clause. Id. at 17. See also Pickett v.Brown, 462 U.S.1, 18 (1983) (striking down Tennessee statute which set two-year statute of limitations for establishing paternity in child support suits on grounds that law denied certain illegitimate children equal protection); McBee v. Sallee, 1980 WL 6452 (E.D. Tenn. 1986) (ruling that Tennessee policy which allowed families receiving public assistance to deduct $50 from any child support payment received when calculating financial need, but did not provide same offset when payments came from social security benefits violated the Equal Protection Clause).
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Under Tennessee law, a parent who owes outstanding child support payments is only criminally liable if the failure to pay is intentional and the parent has the ability to pay. See Tenn. Code Ann. § 39-15-101(a) (“[a] person commits the crime of nonsupport who fails to provide support which that person is able to provide and knows the person has the duty to provide to a minor child.”). A violation of § 39-15-101 is a Class A misdemeanor, if the violation is not flagrant, and does not result in the loss of voting rights. § 39-15-101(e). Thus, a person with no prior felony conviction who violates the child support law does not lose the right to vote and the right to vote never becomes contingent upon eliminating any arrearages. Although Plaintiffs maintain that the restitution requirement treats people convicted of infamous crimes differently based on wealth, the disparate treatment is even more stark when applied to people who owe outstanding child support based on their criminal history.
As in Harper, Tennessee’s re-enfranchisement scheme makes the payment of LFOs an electoral standard for people convicted of infamous crimes who have otherwise completed all the requirements of their sentence and would otherwise be eligible to apply for a Certificate of Restoration. The sole distinction between people convicted of infamous crimes who are given access to the ballot and those who are denied access is the payment of money. This distinction violates the Equal Protection Clause.
2. Plaintiffs are not required to prove that the LFO requirement was adopted with a discriminatory purpose to establish a violation of the Equal Protection Clause.
Plaintiffs have not argued that the challenged system was adopted with a discriminatory purpose, but rather that it has a discriminatory effect. The cases relied upon above make it abundantly clear that when a state law burdens a fundamental right,
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such as the right to vote, a plaintiff need not show the law was enacted with a discriminatory purpose. In Baker v. Carr, 369 U.S. at 335, Justice Harlan noted in his dissenting opinion that the Tennessee plan which was held subject to challenge under the Fourteenth Amendment had not been drawn “with a deliberate purpose to dilute the voting strength of one race . . . or that some religious group is intentionally under represented.” Similarly, in Harper v. Virginia State Board of Elections, 383 U.S. at 672, Justice Black pointed out in his dissenting opinion that “the Court’s decision is to no extent based on a finding that the Virginia law as written or as applied is being used as a device or mechanism to deny Negro citizens of Virginia the right to vote on account of their color.” In Dunn v. Blumstein, 405 U.S. at 355, the Court was explicit that “[w]e do not rely on this alleged original purpose of durational residence requirements [to deny the vote to undesirables] in striking them down today.” There was no requirement of proof of a discriminatory purpose in other voting cases finding violations of the Equal Protection Clause, e.g., Reynolds v. Sims, Wesberry v. Sanders, and Kramer v. Union Free School No. 15. See also Dubay v. Wells, 506 F.3d 422, 428 (6th Cir. 2007) (“[t]he Equal Protection Clause of the Fourteenth Amendment ‘is essentially a direction that all persons similarly situated should be treated alike’”).
The Supreme Court has held that denying a citizen access to a fundamental right – which Tennessee’s felon re-enfranchisement scheme does – “for failing to do that which they cannot do” is irrational and cannot survive under any level of equal protection scrutiny. Zablocki, 434 U.S. at 394 (Stewart, J., concurring). Aside from its voting rights cases, the Court’s decisions have consistently held that the existence of a fundamental right cannot be conditioned on the ability to pay, or the payment of a fee.
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See Bearden v. Georgia, 461 U.S. at 671 (“the State cannot justify incarcerating a probationer who has demonstrated sufficient bona fide efforts to repay a debt to society solely by lumping him together with other poor persons and thereby classifying him as dangerous.”); Griffin v. Illinois, 351 U.S. 12, 19 (1956) (invalidating a state practice of granting appellate review only to persons who could afford a trial transcript); Douglas v. California, 372 U.S. 353 (1963) (indigent entitled to counsel on first direct appeal); Roberts v. LaVallee, 389 U.S. 40 (1967) (indigent entitled to free transcript of preliminary hearing); Mayer v. Chicago, 404 U.S. 189 (1971) (indigent cannot be denied an adequate record on appeal). All of these cases strongly support Plaintiffs’ argument that there can be no equal justice where regaining the right to vote depends on the amount of money a person has, or the payment of a fee. And as noted above, the Court’s decision in Richardson, 418 U.S. at 56, remanding the case to determine whether counties in California were enforcing the state’s restoration law unequally “as to work a separate denial of equal protection,” shows that an allegation or finding of a discriminatory purpose is not required in a challenge to a state’s re-enfranchisement process.
The completion of a prison sentence, probation, and parole is something that all convicted felons are capable of doing. The payment of LFOs, including court fees, restitution, and interest, is fundamentally different because it depends on a person’s wealth, and negatively impacts those who are incapable of paying. Some ex-felons are able to pay these obligations immediately after completing prison, probation and parole. Those who pay the fees and restitution are able to vote, and those who do not are unable to vote. The only bar to the right to vote for people in the second group is their inability
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to pay. Thus, as Plaintiffs allege in their Complaint, Defendants are unlawfully disfranchising poor people by requiring the payment of LFOs whether or not they are doing so with a discriminatory purpose.
3. Tennessee’s denial of voting rights to people with felony convictions does not achieve the interests Defendants assert.
Plaintiffs maintain that the state’s re-enfranchisement scheme is subject to strict scrutiny. However, even if this Court finds that heightened scrutiny is not appropriate in this case, the state’s classification must still be rejected on equal protection grounds because it is not rationally related to any state interest. Defendants’ asserted interests do not take into consideration those individuals who lack the economic means to meet their financial obligations which even Tennessee’s own child support law does when establishing guilt. See Tenn. Code Ann. § 39-15-101(a). In addition, the Supreme Court has stated that “the use of the franchise to compel compliance with other, independent state objectives is questionable in any context.” Hill v. Stone, 421 U.S. 289, 299 (1975). See also Carrington v. Rash, 380 U.S. 89, 96 (1965) (“States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State”); Harmon v. Forssenius, 380 U.S. 528, 542 (1965) (“constitutional deprivations may not be justified by some remote administrative benefit to the State”). As the Court explained in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446 (1985), even in the absence of heightened scrutiny, “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” The Court also has ruled that, if there are alternative means to achieve the state’s interests without burdening the right to vote, the State must choose those “less
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drastic means.” Dunn, 405 U.S. at 343. Tennessee has other available means by which to collect child support and
restitution such as executing a lien on the person’s real or personal property (Tenn. Code Ann. § 36-5-901), garnishing the person’s wages (Tenn. Code Ann. § 36-5-1101, et seq.), and holding the person in contempt for willfully failing to pay (Tenn. Code Ann. § 4024-105). There is no reason to believe that the non-payment of an often sizeable financial obligation immediately upon release from supervision can in any way be used as a proxy for determining a citizen’s commitment to abide by the laws. If anything, the LFO requirement creates a serious barrier for purposes of rehabilitation and reintegration into society, especially in this case where Plaintiffs obviously want to participate in the political process.
In light of the array of other collection devices available to the state, it is difficult to imagine how the denial of the fundamental right to vote makes available any additional financial resources that are not already otherwise accessible. This is particularly true with regard to those who are indigent. As the Supreme Court has recognized, denying a citizen access to a fundamental right “for failing to do that which they cannot do” is irrational and cannot survive under any level of judicial scrutiny. Zablocki, 434 U.S. at 394 (Stewart, J., concurring); See also Bearden, 461 U.S. at 671 (“the State cannot justify incarcerating a probationer who has demonstrated sufficient bona fide efforts to repay his debt to society solely by lumping him together with other poor persons and thereby classifying him as dangerous. This would be little more than punishing a person for his poverty.”). Because the relationship between the State’s reenfranchisement classification and its asserted goals is attenuated at best, the
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classification cannot be found to have a rational basis. Tennessee’s re-enfranchisement scheme unnecessarily locks out a substantial number of its citizens from the procedures available to regain the fundamental right to vote. Because this restriction cannot survive scrutiny under a strict or rational basis standard, the law facially violates the Fourteenth Amendment’s Equal Protection Clause and cannot stand. Further, it appears that the state’s purported interests are pretextual because if the state were really interested in protecting the ballot box from individuals who failed to pay child support, the prohibition would apply to all individuals, not just those who have felony convictions.
B. Tennessee’s Requirement That Plaintiffs Pay LFOs Prior To Getting Their Voting Rights Restored Is Equivalent To A Poll Tax And Violates The Twenty-Fourth Amendment.
The Twenty-Fourth Amendment provides that a citizen’s right to vote in federal elections “shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.” Congress adopted the Twenty-Fourth Amendment for a variety of reasons - concern that states were enacting poll taxes for a racially discriminatory purpose, the payment deadlines did not allow candidates sufficient time to build a base of supporters, and political parties were exerting their wealth to secure blocks of voters. Harmon, 380 U.S. at 539-40. Congress also expressed “a general repugnance to the disenfranchisement of the poor occasioned by failure to pay the tax.” Id. The purpose of the amendment, as stated in the House Committee Report, was “to prevent the United States or any State from denying or abridging the right of the citizens of the United States to vote . . . because of an individual’s failure to pay any poll tax or other tax.” H.R. Rep. No. 87-1821, at 2 (1962), reprinted in 1962 U.S.C.C.A.N. 4033. The House Judiciary Committee concluded that the poll tax was “merely an
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obstacle to the proper exercise of a citizen’s franchise,” and the Attorney General stated that his main objection to the poll tax was that “it clogs voter registration and limits participation in the processes of government.” Id. at 2, 4. In a House floor debate, one of the amendment’s proponents stated that “the payment of money . . . should never be permitted to reign as a criterion of democracy.” 87 Cong. Rec. 17657 (1962) (statement of Rep. Fascell).
By passing the Twenty-Fourth Amendment, Congress and the states were insisting that a price should not be placed on the right to vote, and that when it is, it is nothing more than an impediment to a citizen’s exercise of a fundamental right. Congress likened the poll tax to property requirements, and found that a person’s wealth has no place in determining a person’s right to vote. The Twenty-Fourth Amendment’s primary purpose was to eliminate an unnecessary and unfair obstacle to voting and to encourage the electorate to be more active in the political process.
In Harmon, 380 U.S. at 544, the Supreme Court ruled that a provision of the Virginia Code which required people voting in federal elections to either pay a poll tax or file a certificate of residence violated the Twenty-Fourth Amendment. The Court found that the poll tax requirement undermined many of the concerns that Congress intended the Twenty-Fourth Amendment to alleviate and that the administrative process for obtaining a certificate was too burdensome on voters. Id. at 541-42, 544. In Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326, 1366-67 (N.D. Ga. 2005), the plaintiffs sought a preliminary injunction enjoining the state from requiring people voting in person to present government-issued photo identification. The plaintiffs argued that the fee associated with obtaining the identification was in the nature of a poll tax in violation
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of the Twenty-Fourth Amendment. In granting the injunction, the court found that paying for the identification was a material requirement in order to vote and, therefore, the law’s inclusion of a fee waiver option was irrelevant for purposes of evaluating its constitutionality under the Twenty-Fourth Amendment. Id. at 1370. The court reasoned that the Twenty-Fourth Amendment “does not merely insure that the franchise shall not be ‘denied’ by reason of failure to pay the poll tax; it expressly guarantees that the right to vote shall not be ‘denied or abridged’ for that reason.” Id. at 1367.
The completion of a prison sentence, probation, and parole is something that all convicted felons are capable of doing. The payment of LFOs, including court fees, restitution, and interest, is fundamentally different because it does depend on a person’s wealth, and discriminates against those who are incapable of paying. Plaintiffs allege that the LFO requirement has a disparate impact on indigent people and an indigent person most likely is simply unable to pay all of their LFOs. Some people convicted of infamous crimes, conversely, are able to pay these obligations immediately after completing prison, probation and parole. The only bar to the right to vote for those in the first group is their inability to pay. Those who pay the fees and restitution are able to vote, and those who do not are unable to vote. The state Statutes thus make affluence or the payment of any fee an electoral standard .
In practical application, Tennessee’s requirement that a person pay all restitution and be current on any child support payments is precisely the “disenfranchisement of the poor” that Congress sought to abolish with passage of the Twenty-Fourth Amendment. Harman, 380 U.S. 539. The LFO requirement is an absolute bar for those who are otherwise eligible to vote, but simply cannot afford to pay, and it disfranchises the poor,
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often permanently, in violation of the Twenty-Fourth Amendment. C. Tennessee’s LFO Requirement Violates The Ex Post Facto Clause of the Tennessee Constitution. Article 1, Section 11 of the Tennessee Constitution states that “laws made for the
punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.” The U.S. Constitution also prohibits the passage of ex post facto laws. U.S. Const. art. 1, § 9. Courts have held that the Ex Post Facto Clause “is aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’” California Dep’t of Corrections v. Morales, 514 U.S. 499, 504 (1995) (internal citations omitted); Carmell v. Texas, 529 U.S. 513, 524-25 (2000) (“the words ex post facto laws were technical expressions, and meant every law . . . which changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed”) (internal citations omitted); State v. Odom, 137 S.W.3d 572 (Tenn. 2007) (same).
Earlier this year, the Tennessee Supreme Court ruled that “laws disenfranchising convicted felons are penal in nature.” May v. Carlton, 245 S.W.3d 340 (Tenn. 2008). In May, the petitioner sought habeas corpus relief from a judgment which declared his offense as “infamous” even though, at the time of sentencing, the legislature had not declared the crime as infamous. Id. at 342. In granting the habeas corpus petition, the court reasoned that “[b]ecause the right to vote is fundamental to the concept of liberty in [Tennessee], an erroneous label of infamy in a judgment of conviction . . . should be declared null and void.” Id. at 349. See also Gaskin v. Collins, 661 S.W.2d 865, 868 (Tenn. 1983) (the Ex Post Facto Clause of the Tennessee Constitution “prohibits the
20 Case 3:08-cv-00187 Document 69 Filed 08/22/08 Page 20 of 24 PageID #: 336

General Assembly from retroactively disenfranchising convicted felons who have never been adjudged infamous”). The fact that Tennessee’s re-enfranchisement Statutes are found in the “Criminal Procedure” section of the Tennessee Code further establishes that the Statutes impose an additional criminal penalty for a conviction.
Tenn. Code Ann. §§ 40-29-202(b) and 40-29-202(c) were enacted in 2006. Prior to 2006, Tennessee’s re-enfranchisement law did not require a person to pay all of their restitution or be current on child support payments. Under the old law, Plaintiffs, who were convicted before 2006, would have been eligible to get their voting rights restored. Thus, the application of § 40-29-202(b) and 40-29-202(c) to Plaintiffs is retroactive and the laws increase the penalties that Plaintiffs faced when they were convicted. Regardless of how this Court rules on the federal Ex Post Facto Clause claim, Tennessee’s LFO requirement, as it applies to Plaintiffs, violates the state Ex Post Facto Clause, and this Court is bound by the state supreme court’s interpretation of state law. Medellin v. Texas, 128 S. Ct. 1346, 1364 (2008). See also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[w]e have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus”).
D. Tennessee’s LFO Requirement Violates the Federal and State Privileges and Immunities Clauses.
Section 1 of the Fourteenth Amendment provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Article XI, Section 8 of the Tennessee Constitution states that the Tennessee Legislature “shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with
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the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.”
Tennessee courts have interpreted the state’s Privileges and Immunities Clause as ensuring the same protections as the Equal Protection Clause. Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978); Baker v. Vanderbilt Univ., 616 F. Supp. 330, 332-33 (M.D. Tenn. 1985). When examining a state election law under the Privileges and Immunities Clause, courts should not only look at the face of the statute, but also at whether the law has a disparate impact on a particular group of persons. See Anderson v. Celebrezze, 460 U.S. at 789. Even though Tennessee’s LFO requirement may appear neutral on its face, the law negatively and disproportionately impacts indigent people. The result is that poor people, many of whom were already poor and disadvantaged in areas such as education, employment, and housing, are further locked out of the political process.
Moreover, as Plaintiffs have argued above, the state's LFO requirement is not rationally related to the state's asserted interests and does not serve a compelling governmental interest. Instead, the law further expands the already wide gulf between the wealthy and the poor when it comes to the exercise of voting rights even among the class of felons and, in many instances, serves to permanently disfranchise indigent people in violation of the state and federal privileges and immunities clause. VI. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their
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motion for judgment on the pleadings or in the alternative their motion for partial
summary judgment.
DATED this 22nd day of August 2008.
Respectfully submitted,
By: /s/ Nancy Abudu Nancy G. Abudu* Laughlin McDonald* Neil Bradley* AMERICAN CIVIL LIBERTIES UNION VOTING RIGHTS PROJECT 230 Peachtree Street NW Suite 1440 Atlanta, Georgia 30303 Tel: (404) 523-2721 Fax: (404) 653-0331 lmcdonald@aclu.org nbradely@aclu.org nabudu@aclu.org *Admitted pro hac vice
Tricia Herzfeld (Bar No. 026014) AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE P.O. Box 120160 Nashville, Tennessee 37212 Tel: (615) 320-7142 Fax: (615) 320-7260 tricia@aclu-tn.org
Counsel for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of August 2008, a copy of the foregoing
was served on counsel of record for defendants, addressed as follows, via the court’s
electronic filing system:
ROBERT E. COOPER, JR. JANET M. KLEINFELTER WILLIAM N. HELOU Special Litigation Division 425 5th Avenue North Nashville, Tennessee 37243
SUE B.CAIN ALLISON BUSSELL 108 Metropolitan Courthouse P.O. Box 196300 Nashville, Tennessee 37219
JOHN L. RYDER One Commerce Square, Suite 2700 Memphis, Tennessee 38103
DANIEL PRESLEY 160 North Main Street, Suite 2700 Memphis, Tennessee 38103
JAMES I. PENTECOST JON A. YORK 106 Stonebridge Blvd. Jackson, TN 38305
/s/ Nancy Abudu Nancy Abudu
Counsel for Plaintiffs
24 Case 3:08-cv-00187 Document 69 Filed 08/22/08 Page 24 of 24 PageID #: 340

 
 001-188-00

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRENCE JOHNSON, JIM HARRIS,

)

ALEXANDER FRIEDMANN, and

)

JOSHUA ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

PHIL BREDESEN, Governor of the State of

)

Tennessee; BROOK THOMPSON, Coordinator )

of Elections; RILEY DARNELL, Secretary of )

State of Tennessee; JAMES JOHNSON

)

Administrator of Elections for Shelby County; )

KIM BUCKLEY, Administrator of Elections for )

Madison County; and RAY BARRETT,

)

Administrator of Elections for Davidson County, )

in their official capacities

)

)

Defendants.

)

No. 3-08-0187
Hon. Thomas A. Wiseman, Jr U.S. District Court Judge
Hon. Juliet Griffin U.S. Magistrate Judge

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT KIM BUCKLEY’S MOTION FOR SUMMARY JUDGMENT

Defendant Kim Buckley, by and through counsel, submits this memorandum of law in support of her motion for summary judgment.
BACKGROUND In their Amended Complaint, Plaintiffs Terrence Johnson, Jim Harris, Alexander Friedmann, and Joshua Roberts allege that they are convicted felons who wish to vote in upcoming elections but are ineligible for restoration of their voting rights because of outstanding legal financial obligations. (Docket Entry [“D.E.”] 57, Am. Compl., ¶¶ 4-7). Plaintiffs allege that the 2006 amendments to Title 40, Chapter 29 of the Tennessee Code, specifically Tenn.

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Code Ann. §§ 40-29-202(b) and (c), which require that convicted felons who seek to have their voting rights restored must first pay all restitution to the victims of their crimes as ordered by the sentencing court and to not have any outstanding child support payments, violates both the United States and Tennessee Constitutions. (D.E. 57, Am. Compl., ¶¶ 1; 14-18; 26-55). Plaintiffs, seeking declaratory and injunctive relief, as well as nominal damages, have brought this action against Governor Phil Bredesen; Brook Thompson, the Coordinator of Elections for the State of Tennessee; Riley Darnell, the Secretary of State for the State of Tennessee; and James Johnson, Kim Buckley, and Ray Barrett, who are the administrators of elections for Shelby, Madison, and Davidson counties, respectively. (D.E. 57, Am. Compl., ¶¶ 8-13).
With regard to the claims against Defendant Buckley, who is the duly appointed administrator of elections for Madison County under Tenn. Code Ann. § 2-12-116, Plaintiff Jim Harris (Plaintiff) alleges that he is a convicted felon residing in Madison County, Tennessee who has completed his terms of imprisonment, parole, and probation for all of his felony convictions, but owes approximately $2,500.00 in outstanding child support payments. (D.E. 57, Am. Compl., ¶ 5). Plaintiff alleges that he wishes to vote in upcoming elections but is ineligible to have his voting rights restored because of outstanding child supports payments for which he is responsible.1 (D.E. 57, Am. Compl., ¶ 5) Plaintiff does not allege that any action has been taken by Defendant Buckley concerning any restoration of his right to vote. (See generally D.E. 57, Am. Compl.). Other than stating that she is being sued in her official capacity, Plaintiff makes no further allegations concerning Defendant Buckley. (D.E. 57, Am. Compl., ¶ 12; generally). Nonetheless, Plaintiff seeks declaratory and injunctive relief and nominal damages against
1 In response to the State Defendants’ First Set of Interrogatories and Request for Production of Documents Propounded to Plaintiff Jim Harris, Plaintiff states that, since filing this action, he has satisfied his outstanding child support obligations. (See Pl. Jim Harris’ Resp. to Defs.’ First Set of Inter. and Req. for Prod. of Docs., p. 3, Resp. No. 7 [submitted as Ex. 2]).
2 Case 3:08-cv-00187 Document 77 Filed 09/03/08 Page 2 of 12 PageID #: 412

Defendant Buckley, in her official capacity, for the alleged violation of his constitutional rights. (See generally D.E. 57, Am. Compl.).
Defendant Buckley now moves this Court for summary judgment in her favor with respect to all of Plaintiff’s claims asserted against her in the Amended Complaint.
SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(c) states that a “judgment sought should be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). When ruling on a motion for summary judgment, mere existence of a scintilla of evidence in support of the plaintiff’s position will not be sufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Id. Federal Rule of Civil Procedure 56(e) states that, “when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” Rule 56(e) requires the opposing party to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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ARGUMENT Plaintiff has brought suit against Defendant Buckley in her official capacity as the administrator of elections for Madison County, Tennessee. The United States Supreme Court has stated that official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n.55 (1978)); see also Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003). Plaintiff, therefore, has the burden to show that Madison County is liable for the alleged violation of his constitutional rights. To establish liability under § 1983 against Madison County, Plaintiff has the burden to show that a constitutional violation occurred and that Madison County was responsible for that violation. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992). It is a separate inquiry to establish whether a constitutional violation occurred and whether a municipality bears responsibility. Id. at 117. The first question to be examined is whether a constitutional violation occurred. Ford v. County of Oakland, 35 Fed. Appx. 393, 396 (6th Cir. 2002). If a constitutional violation occurred, then the second question is whether the municipality bears responsibility under § 1983 for the alleged constitutional deprivation. See Collins, 503 U.S. at 121. Here, the Court should find that Plaintiff cannot satisfy either of these inquiries to establish liability under §1983 against Madison County. I. Plaintiff cannot show that a violation of his constitutional rights has
occurred. Plaintiff alleges that Tenn. Code Ann. §§ 40-29-202(b) and (c), and its subsequent enforcement by Madison County, violates his constitutional rights. Summary judgment is appropriate for Defendant Buckley because Plaintiff has failed to establish a deprivation of his
4 Case 3:08-cv-00187 Document 77 Filed 09/03/08 Page 4 of 12 PageID #: 414

constitutional rights as a matter of law, and, alternatively, any possible constitutional deprivation that Plaintiff might have suffered was not caused by Defendant Buckley.
A. Plaintiff has failed to establish a constitutional violation as a matter of law. Defendant Buckley joins in Defendants Phil Bredesen, Brook Thompson, and Riley Darnell’s motion for judgment on the pleadings and memorandum of law in support, and incorporates all arguments contained therein as if reprinted in its entirety in this memorandum. (D.E. 58-59). For the reasons set forth in Defendants Phil Bredesen, Brook Thompson, and Riley Darnell’s motion for judgment on the pleadings and their supporting memorandum of law, the Court should find that Defendant Buckley is entitled to judgment as a matter of law because Plaintiff cannot show that a violation of his constitutional rights occurred. See Los Angeles v. Heller, 475 U.S. 796, 799 (1986); see also Meals v. City of Memphis, No. 03-2077, 2008 U.S. Dist. LEXIS 20811 (W.D. Tenn. Mar. 13, 2008).
B. Alternatively, any possible constitutional deprivation Plaintiff might have suffered was not the result of any action on the part of Defendant Kim Buckley.
The Court should also grant summary judgment to Defendant Buckley on the ground that she took no action to deprive Plaintiff of any of his constitutional rights. Tennessee state law vests the ultimate authority of rejecting a certificate of restoration for person who has been convicted of an infamous crime with the State Coordinator of Elections, and not a county election administrator such as Defendant Buckley. Tenn. Code Ann. § 2-11-202(a)(17) (2008) provides that it is the State Coordinator of Elections’ duty to “[i]nstruct the administrators in each county that they are to purge the registration of any person appearing on the infamous crime list . . . who is registered to vote in their county”. Thus, by statute, it is the State Coordinator of Elections’ duty and decision to order that non-qualified voters, such as Plaintiff, are purged from
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a county’s registered voter database. While the present lawsuit involves the restoration of a
person convicted of an infamous crime right to vote, this statute illustrates that decisions
regarding the disenfranchisement and re-enfranchisement of a person convicted of an infamous
crime lie with the State Coordinator of Elections, and not county election administrators.
Furthermore, the statute outlining the procedure for a person convicted of an infamous
crime to follow to have his voting rights restored explicitly states that the State Coordinator of
Elections is responsible for verifying that the convicted felon has complied with all of the
restoration requirements, including the payment of all restitution and overdue child support
payments. Tenn. Code Ann. § 40-29-203(d) (2008) provides:
Any person issued a certificate of voting rights restoration pursuant to this section shall submit the certificate to the administrator of elections of the county in which the person is eligible to vote. The administrator of elections shall send the certificate to the coordinator of elections who shall verify that the certificate was issued in compliance with this section. Upon determining that the certificate complies with the provisions of this section, the coordinator shall notify the appropriate administrator of elections and, after determining that the person is qualified to vote in that county by using the same verification procedure used for any applicant, the administrator shall grant the application for a voter registration card. The administrator shall issue a voter registration card and the card shall be mailed to the applicant in the same manner as provided for any newly issued card.
(emphasis added). Based upon this statute, the Court should find that Defendant Buckley, as
well as all similarly situated court election administrators, does not have the discretion to deny a
convicted felon’s certificate of restoration, but instead, is directed to approve or reject such a
certificate by the State Coordinator of Elections. The Court may infer that for a county election
administrator to approve a certificate of restoration without the approval of the State Coordinator
of Election would be in violation of Tennessee state law.
It is the State Coordinator of Elections who makes the final decision of whether a person
convicted of an infamous crime may have their voting rights restored, and not a county election
6 Case 3:08-cv-00187 Document 77 Filed 09/03/08 Page 6 of 12 PageID #: 416

administrator. By its terms, 42 U.S.C. § 1983 imposes civil liability upon any individual “who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .” Apparent from the language of section 1983, however, is the condition that liability will be imposed only upon those individuals who “subject” or “cause to be subjected” another to a deprivation of constitutional rights. Tate v. Alexander, 527 F.Supp. 796, 800 (M.D. Tenn. 1981). For Buckley to be held liable under § 1983, then she must have somehow violated or caused to be violated Plaintiffs’ Constitutional rights. That determination is itself dependent on whether Buckley actually can be held responsible for the acts that Plaintiffs claim violated their Constitutional rights. Tate, 527 F.Supp. at 800. This is the essence of § 1983’s causation requirement. Before a government official can be held liable under § 1983 for violating an individual’s Constitutional rights, it must first be shown that the official was legally responsible for the allegedly unconstitutional act itself. See Monell v. Department of Social Services, 436 U.S. 658 (1978). If it cannot be said that the official was responsible for the act, then clearly no liability will attach, regardless of whether another’s constitutional rights were violated by that act. See Monell, 436 U.S. 658; Rizzo v. Goode, 423 U.S. 362 (1976); Tate, 527 F.Supp. at 800.
Plaintiff has failed to allege any action on the part of Buckley, let alone any actions that were violative of his Constitutional rights. Without an allegation of any wrongdoing on Buckley’s part, Plaintiff has failed to allege a claim against her. Furthermore, Tennessee state law clearly provides that it is the State Coordinator of Elections’ responsibility to make the final determination of whether a convicted felon, such as Plaintiff, may have their voting rights
7 Case 3:08-cv-00187 Document 77 Filed 09/03/08 Page 7 of 12 PageID #: 417

restored, and not a county election administrator. For these reasons, Plaintiff has failed to allege, let alone prove, that Defendant Buckley took any action to allegedly deprive him of his constitutional rights.
II. Plaintiff cannot show that any policy or custom of Madison County was the moving force behind any alleged violation of his constitutional rights.
Even if the Court were to find, for purposes of this motion only, that a question exists as to whether a violation of Plaintiff’s constitutional rights did occur or that any alleged violation resulted from Kim Buckley’s actions, Madison County is entitled to summary judgment because Plaintiff cannot show that any County policy or custom, or lack thereof, was the moving force behind any alleged constitutional violation. City of Canton, 489 U.S. at 389. Before a local governmental unit can be held liable for injuries pursuant to § 1983, “a plaintiff must show that his injuries were the result of some ‘policy or custom’ attributable to the governmental entity.” Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989). Municipal liability cannot be based on the theory of respondeat superior. Monell, 436 U.S at 691. Specifically, a municipality is not liable under § 1983 for an injury inflicted solely by its employees or agents, but rather only when the “execution of the government’s policy or custom . . . inflicts the injury.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); Alkire v. Irving, 330 F.3d 802, 814-15 (6th Cir. 2003) (stating that “[d]espite being ‘persons’ for the purposes of § 1983, municipalities are not ‘liable for every misdeed of their employees and agents.’”). In this regard, a municipality may be held liable under § 1983 only if the municipality itself caused or if its policies were the “moving force” behind a constitutional deprivation. Graham, 473 U.S. at 166; Monell, 436 U.S. at 690. In other words, to prove that Madison County was responsible for an alleged constitutional violation, Plaintiff must show that the inadequacy of the County’s policies and
8 Case 3:08-cv-00187 Document 77 Filed 09/03/08 Page 8 of 12 PageID #: 418

procedures were the “moving force behind the constitutional violation.” City of Canton, 489 U.S. at 389; see also Monell, 436 U.S. at 694.
Here, Plaintiff cannot show that any policy, procedure, or practice of Madison County caused or otherwise was the moving force behind any such alleged violation. Furthermore, Plaintiff has failed to allege or present any evidence that Madison County has a custom or practice of applying its policies and procedures for restoring voting rights to convicted felons in a non-uniform, selective, or otherwise discriminatory manner. On the contrary, the undisputed evidence clearly shows that Madison County has adequate and appropriate policies and procedures in place in accordance with state law for addressing the restoration of voting rights to individuals who have been convicted of an infamous crime.
The undisputed evidence shows that Madison County applies its policies and procedures in a uniform manner. In particular, when the Madison County Election Commission (election commission) receives an application to vote by mail or through a National Voting Rights Act agency and it is discovered that the applicant has a felony conviction, the election commission, pursuant to its policy and practices, sends the applicant a letter informing the applicant that the application can not be processed. (Fact No. 4). This letter explains what forms the applicant must submit in accordance with his/her conviction date in order for the applicant’s voting rights to be restored. (Fact No. 5). In addition, the letter furnishes the applicant with the telephone number and address of the Tennessee Board of Pardons and Paroles and explains that the State Coordinator must approve the required documents. (Fact No. 5). Finally, the letter provides the applicant with the deadline for completing the procedure so that the applicant may be registered in time for the next election. (Fact No. 5). Applicants are instructed to contact the election commission if they have any further questions. Moreover, it is the practice of the election
9 Case 3:08-cv-00187 Document 77 Filed 09/03/08 Page 9 of 12 PageID #: 419

commission office to provide any person who personally appears at the commission office with the same information referenced above as well as the Restoration of Rights form. (Fact No. 6). The Commission staff also attempts to answer any questions that any applicant or concerned citizen might have. (Fact No. 7).
Based on the undisputed evidence, Plaintiff cannot show that any Madison County policy or custom, or any lack thereof, was or is the moving force behind the alleged violation of his constitutional rights. In fact, Plaintiff, in his Complaint, has failed to allege, and cannot now show, that any specific policy or practice of Madison County or its election commission is the cause in fact or proximate cause of the alleged deprivation of his rights. (See generally, D.E. 57, Am. Compl.); Powers v. Hamilton County Pub. Defender Comm’n, 501 F.3d 592, 608 (6th Cir. 2007) (holding traditional tort concepts of causation, such as cause in fact and proximate causation, inform the causation inquiry on a § 1983 claim). Furthermore, Plaintiff can present no evidence to show that Madison County or its election commission has a policy or practice of applying its policies or procedures in a discriminatory or non-uniform manner. Finally, Plaintiff cannot present any evidence to show that Madison County lacks appropriate policies or procedures for handling the restoration of voting rights for convicted felons or that any such policy deficiency is the moving force behind the deprivation of his rights. (See generally, D.E. 57, Am. Compl.). Therefore, Plaintiff has failed to satisfy his burden of proof to establish liability under § 1983 against Madison County. Accordingly, the Court should grant summary judgment in favor of Defendant Buckley, in her official capacity as the administrator of elections for Madison County, Tennessee.
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CONCLUSION For the reasons set forth above, the Court should find that Defendant Kim Buckley, in her official capacity as the administrator of elections for Madison County, Tennessee, is entitled to summary judgment in her favor.
Respectfully submitted, PENTECOST & GLENN, PLLC By: s/Jon A. York James I. Pentecost (#11640) Jon A. York (#23106) Attorneys for Kim Buckley 106 Stonebridge Blvd. Jackson, TN 38305 Phone # 1-731-668-5995 Fax # 1-731-668-7163 jpentecost@pgandr.com jyork@pgandr.com
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CERTIFICATE OF SERVICE

This is to certify that I have served a copy of this pleading via the Court’s ECF Notification system upon:

Tricia Herzfeld American Civil Liberties Union of Tennessee Po Box 120160 Nashville, TN 37212

Laughlin McDonald Nancy Abuda Neil Bradley American Civil Liberties Union Voting Rights Project 2600 Marquis One Tower 245 Peachtree Center Ave., NE Atlanta, GA 30303-1227

William N. Helou Tennessee Attorney General’s Office PO Box 20207 Nashville, TN 37202

Allison L. Bussell Metropolitan Legal Department 108 Metropolitan Courthouse PO Box 196300 Nashville, TN 37219

John L. Ryder Harris, Shelton, Hanover & Walsh, PLLC One Commerce Square, Suite 2700 Memphis, TN 38103-2225

Danny Presley Deputy County Attorney 160 N. Main Street, Suite 660 Memphis, TN 38103-1812

This the 3d day of September, 2008.

PENTECOST & GLENN, PLLC

By: s/Jon A. York Jon A. York

12 Case 3:08-cv-00187 Document 77 Filed 09/03/08 Page 12 of 12 PageID #: 422

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRENCE JOHNSON, JIM HARRIS,

)

ALEXANDER FRIEDMANN, and

)

JOSHUA ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

PHIL BREDESEN, Governor of the State of

)

Tennessee, BROOK THOMPSON,

)

Coordinator of Elections, RILEY DARNELL,

)

Secretary of State of Tennessee, JAMES

)

JOHNSON, Administrator of Elections for

)

Shelby County, KIM BUCKLEY, Administrator of )

Elections for Madison County, and

)

RAY BARRETT, Administrator of Elections for )

Davidson County, in their official capacities, )

)

Defendants.

)

Case No. 3:08cv0187 Judge Thomas A. Wiseman, Jr.

MEMORANDUM OPINION

Before the Court are (1) a Motion for Judgment on the Pleadings as to the Constitutional

Challenges Contained in the Amended Complaint (Doc. No. 58) filed by defendants Phil Bredesen, Brook

Thompson and Riley Darnell (collectively, the “State Officials”), and (2) Plaintiffs’ Motion for Judgment on

the Pleadings or in the Alternative Motion for Partial Summary Judgment (Doc. No. 68). The motions

have been fully briefed and the parties presented oral argument on their motions at a hearing conducted

on September 15, 2008.

For the reasons set forth below the Court finds that the State Officials’ motion is meritorious and

that they are entitled to judgment in their favor as a matter of law as to Counts One through Five of the

Amended Complaint. Those Counts will be dismissed, leaving for adjudication only plaintiff Alexander

Friedmann’s due-process claims under the United States and Tennessee Constitutions, set forth in Count

Six of the Amended Complaint. Plaintiffs’ motion for judgment will be denied.

I.

INTRODUCTION

After this Court issued its Memorandum Opinion and Order (Doc. Nos. 44 and 45) denying the

County Official defendants’ motions to dismiss, plaintiffs filed an Amended Complaint (Doc. No. 57) in

Case 3:08-cv-00187 Document 85 Filed 09/22/08 Page 1 of 19 PageID #: 447

2

which they joined a new plaintiff, Joshua Roberts. In the Amended Complaint as in the original

Complaint, Plaintiffs seek to invalidate those portions of Tenn. Code Ann. § 40-29-202 that condition the

restoration of voting rights for people previously convicted of a felony upon their payment of certain legal

financial obligations, namely restitution and child support. Plaintiffs assert that this statute, by denying the

vote to those who have not satisfied certain legal financial obligations, violates their fundamental right to

vote and discriminates among citizens on the basis of wealth. More specifically, Plaintiffs claim that the

statutory provisions at issue violate the Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution (Counts One and Two), the Twenty-Fourth Amendment to the United States

Constitution (“Count Three”), the Ex Post-Facto Clauses of the United States and Tennessee

Constitutions (“Count Four”), and the Privileges and Immunities Clauses of the United States and

Tennessee Constitutions (“Count Five”). Count Six of the Amended Complaint asserts that the State of

Tennessee has refused to restore plaintiff Alexander Friedmann’s voting rights despite the State’s failure

to produce any documentation showing Mr. Friedmann owes outstanding restitution, in violation of the

Due Process Clauses of the United States and Tennessee Constitutions. Plaintiffs name as defendants

those state and county officials, in their official capacity, they allege are responsible for the

implementation and enforcement of the state statutory scheme as it pertains to voter eligibility and

registration. They seek declaratory and injunctive relief, nominal damages, attorney’s fees and costs.

The State Officials have now filed their motion for judgment on the pleadings under Rule 12(c) of

the Federal Rules of Civil Procedure, asserting that, even assuming the Plaintiffs’ factual allegations are true, they are not entitled to any relief on Counts One through Five of the Amended Complaint.1 Plaintiffs

oppose the State Officials’ motion, but they have also filed their own motion for judgment on the pleadings

and alternative motion for partial summary judgment as to Counts One through Five.

II.

FACTUAL BACKGROUND

The facts are undisputed for purposes of the parties’ motions. Under current Tennessee law, a

citizen convicted of a felony and thereby deprived of the right to vote can apply for a voter registration

card and seek to regain the right of suffrage upon:

(1) Receiving a pardon, except where the pardon contains special conditions pertaining to the right of suffrage;

1 Count Six is not at issue in the State Officials’ motion.

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(2) The discharge from custody by reason of service or expiration of the maximum sentence imposed by the court for the infamous crime; or

(3) Being granted a certificate of final discharge from supervision by the board of probation and parole pursuant to § 40-28-105, or any equivalent discharge by another state, the federal government, or county correction authority.

Tenn. Code Ann. § 40-29-202(a) (2006). Notwithstanding this provision, convicted felons remain

ineligible to apply for a voter registration card or to have the right to suffrage restored unless they have

“paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence,”

Tenn. Code Ann. § 40-29-202(b), and unless they are “current in all child support obligations.” Tenn.

Code Ann. § 40-29-202(c).

Plaintiffs Terrence Johnson, Jim Harris and Joshua Roberts are all convicted felons and residents

of Tennessee who have served their prison sentences and satisfied the conditions of supervised release,

and wish to vote in upcoming elections. They are ineligible under § 40-29-202 to apply for restoration of

their voting rights, however, because they owe past-due child support payments and/or restitution to the

victims of the crimes for which they were convicted.

II.

STANDARD OF REVIEW

A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure

applies the same standards as a motion to dismiss under Rule 12(b)(6). Lindsay v. Yates, 498 F.3d 434,

438 (6th Cir. 2007); Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006). Under the applicable standard,

the court reviews the complaint in the light most favorable to the non-moving party, accepting as true all

well pleaded factual allegations. Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336

(6th Cir. 2007) (citing United States v. Moriarty, 8 F.3d 329, 332 (6th Cir. 1993)). The court need not

accept as true legal conclusions or unwarranted factual inferences contained in the pleadings. Id. (citing

Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). To survive the motion, “the complaint must

contain direct or inferential allegations respecting all the material elements under some viable legal

theory.” Id. (citing Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). See also Shuptrine v. McDougal

Littell, No. 1:07-cv-181, 2008 WL 400453, at * 1 (E.D. Tenn. Feb.12, 2008) (ruling on a Rule 12(c) motion

and identifying the standard for a motion to dismiss under Rule 12(b)(6), in light of Bell Atl. Corp. v.

Twombly, — U.S. —, 127 S. Ct. 1955, 1974 (2007), as whether the complaint pleads enough facts to

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state a claim to relief that is plausible on its face).

Although Plaintiffs’ motion, like the State Officials’, is characterized first as a motion for judgment

on the pleadings, the only pleading the Court can consider is the Amended Complaint, as the State

Officials have not filed an answer to the Amended Complaint. They did file an answer to the original

complaint in which they denied or were without sufficient information to admit or deny most of the factual

allegations in the complaint. Regardless, there is no dispute regarding the import and effect of the

statutes at issue, and the State Officials, for purposes of the Plaintiffs’ motion, do not dispute those facts

set forth in the Plaintiffs’ Statement of Material Facts. It appears that the issues presented are strictly legal in nature and do not require the resolution of any factual issues in any party’s favor.2

III. ANALYSIS AND DISCUSSION

A.

Whether § 40-29-202 Violates the Equal Protection Clause

The State Officials argue that subsections (b) and (c) of § 40-29-202 do not violate the Equal

Protection Clause of the United States Constitution because: (1) felons do not have a fundamental right

to vote; (2) wealth qualifications do not discriminate against a suspect class; and (3) because felons do

not have a fundamental right to vote, the statutory limitations on restoration of felon voting rights are

subject to a rational-basis analysis, which the State meets. In response, Plaintiffs do not dispute that the

State may disenfranchise convicted felons, but essentially argues that once the right to vote is restored,

any restrictions on that right should be subject to strict scrutiny. They also argue that § 40-29-202 has a

disparate impact on the indigent. Finally, they argue that the distinction made by the statute between

those ex-felons who can and cannot pay restitution and past-due child support is not rationally related to

any legitimate government purpose and, alternatively, that they should be able to conduct discovery in

order to present evidence invalidating Defendants’ asserted rational basis for the statute. The law simply

does not support the Plaintiffs’ arguments.

(1) Convicted Felons Do Not Have Fundamental Right to Vote

The Supreme Court has expressly stated that “the exclusion of felons from the vote has an

affirmative sanction in [§] 2 of the Fourteenth Amendment.” Richardson v. Ramirez, 418 U.S. 24, 54

2 The State Officials do contest the Plaintiffs’ factual assertion that the challenged statutory provisions disproportionately affect the indigent.

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(1974). Based on that finding, the Court held that the California Supreme Court had erred in holding that California’s exclusion of convicted felons who had completed their sentences and paroles from the franchise violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 56. The Sixth Circuit has interpreted Richardson v. Ramirez to mean that felons do not have a fundamental right to vote. See Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (“It is undisputed that a state may constitutionally disenfranchise convicted felons . . . and that the right of felons to vote is not fundamental.” (citations omitted)).
(2) Restrictions on Felons’ Right to Vote Are Subject to Rational-Basis Test Other circuits, based on the holding in Richardson that felons do not have a fundamental right to vote, have applied the “rational-basis” test rather than strict scrutiny to distinctions among different types of convicted felons with respect to the right to vote. For instance, Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978), involved a state statutory scheme that disenfranchised all convicted felons but provided a mechanism for the restoration of voting rights only to those who were convicted in state court and whose convictions were abrogated either by executive pardon or by act of the court of conviction. The statutory scheme did not provide any means for the re-enfranchisement of felons convicted by federal courts unless they received a presidential pardon, over which the state had no control. Plaintiffs, all felons convicted in federal court, asserted that the state statutory scheme violated their equal-protection rights because it provided no mechanism by which they could restore their voting rights. In support of their position, the plaintiffs argued that Richardson should be read to mean “only that the state can deprive felons of the right to vote” but that “when a state grants the right to vote to some felons and denies it to others the classifications must be judged by strict scrutiny.” Id. 1114. The Fifth Circuit rejected that argument as premised upon too narrow a reading of Richardson, stating: We do not read Richardson to hold that the realm of state discretion in disenfranchising persons convicted of felonies is limited to the disenfranchisement of all felons or none. While a narrow reading of Richardson might support plaintiffs’ position, several aspects of the Court’s opinion lead us to conclude that section 2 of the fourteenth amendment blunts the full force of section 1’s equal protection clause with respect to the voting rights of felons. First, the Court noted that it had previously “indicated approval” of a state’s disenfranchisement of “some or all convicted felons.” 418 U.S. at 53. Second, the issue before the Court was whether California could deny the vote to the class of ex-felons who had completed their sentences and paroles. See 418 U.S. at 32 n.10, 33, 56. Thus, although the analysis engaged in by the Court focuses on a state’s power to disenfranchise persons convicted of a felony generally, the specific holding of the Court was that a state may deny the franchise to that group of “convicted felons who have
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completed their sentences and paroles.” 418 U.S. at 56. Third, the Court responded to arguments that a state should reenfranchise felons once they have served their terms by saying that such arguments should be directed to the state legislatures. 418 U.S. at 55. Thus, the Court clearly envisioned that a state could grant the right to vote to some persons convicted of a felony while denying it to others. Section 2’s express approval of the disenfranchisement of felons thus grants to the states a realm of discretion in the disenfranchisement and reenfranchisement of felons which the states do not possess with respect to limiting the franchise of other citizens. Shepherd, 575 F.2d at 1114. The Fifth Circuit went on, however, to find that § 2 of the Fourteenth Amendment could not be read to “remove[ ] all equal protection considerations from state-created classifications denying the right to vote to some felons while granting it to others.” Id. For instance, the court observed, “[n]o one would contend that section 2 permits a state to disenfranchise all felons and then reenfranchise only those who are, say, white. Nor can we believe that section 2 would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.” Id. (citations omitted). The court therefore held that “selective disenfranchisement or reenfranchisement of convicted felons must pass the standard level of scrutiny applied to state laws allegedly violating the equal protection clause. Such laws must bear a rational relationship to the achieving of a legitimate state interest.” Id. at 1114–15 (citing McGowan v. Maryland, 366 U.S. 420 (1961)) (emphasis added). Similarly, in Owens v. Barnes, 711 F.2d 25 (3d Cir. 1983), the Third Circuit held that a Pennsylvania law that permitted unincarcerated felons to vote but barred incarcerated felons from voting did not violate the equal-protection clause so long as the distinction was “rationally related to a legitimate state interest.” Id. at 27 (noting that “[i]t follow[ed] [from the Supreme Court’s holding in Richardson] that the standard of equal protection scrutiny to be applied when the state makes classifications relating to disenfranchisement of felons is the traditional rational basis standard”). Further, in finding that Pennsylvania’s distinction between incarcerated and unincarcerated felons satisfied rational-basis scrutiny, the Third Circuit determined that it was “not bound by the state’s inexplicable failure to provide in its brief any rationale for such distinction, . . because we believe the basis is apparent on its face.” Id. at 28. More specifically, the court found that the state could rationally decide that one of the losses to which an incarcerated prisoner should be subject was that of participation in the democratic process.3
3 The cases cited by the Plaintiffs are not inconsistent with the above-referenced decisions. For instance, in Hunter v. Underwood, 471 U.S. 222, 223 (1985), plaintiffs brought an action challenging a
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Based on the above-referenced cases, this Court also finds, as the State Officials argue, that,
because felons do not have a fundamental right to vote, the state’s decision to restore voting rights to
some convicted felons and not to others is not subject to a strict-scrutiny standard. Rather, the Court
must find that such distinctions do not violate equal protection so long as they do not discriminate against
a protected class and they bear a rational relationship to a legitimate state interest.
(3) Indigence Is Not a Suspect Classification.
Plaintiffs argue here that the state’s discrimination between those felons who are able to pay all
restitution ordered by the court as well as any past-due child support payments, and those who are not,
amounts to a classification based upon wealth. Supreme Court precedent, however, has clearly
established that wealth, or lack thereof, is not a “suspect classification.” For instance, in San Antonio
Independent School District v. Rodriguez, 411 U.S. 1 (1973), the Court upheld Texas’s system of
financing its public schools against an equal-protection challenge, where the funding scheme in question,
financed in part by local property taxes, resulted in “substantial interdistrict disparities in school
expenditures . . . throughout the State.” Id. at 15. Notably, for purposes of the case at bar, the Supreme
state law disenfranchising persons convicted of “crimes involving moral turpitude.” The Supreme Court affirmed the Eleventh Circuit’s determination that the provision violated equal protection where it both had a disparate racial impact and was indisputably motivated by a desire to discriminate against blacks on the basis of race. Hunter is distinguishable from the case at bar because, among other factors, (1) the Hunter plaintiffs challenged the statutory provision only insofar as it barred those convicted of a misdemeanor from voting, rather than a felony; and (2) the provision was affirmatively shown to have a disparate impact upon and to be intended to discriminate on the basis of race – a suspect classification. Likewise, in the earlier case of Hobson v Pow, 434 F. Supp. 362 (N.D. Ala. 1977), the district court applied strict scrutiny to Alabama constitutional and statutory provisions that disenfranchised men upon conviction for “assault and battery on the wife,” a misdemeanor, and held that the state had not met the requirement that it show the statute was narrowly tailored to further a compelling state interest, or even a rational basis for disenfranchising wifebeaters but not others convicted of assault and battery. In other words, Hobson, like Hunter, involved a misdemeanor rather a felony and also concerned a suspect classification: gender. Moreover, Hobson, being a district court decision from a different state and circuit, has no precedential value even if it were on point.
Plaintiffs’ emphasis on Burdick v. Takushi, 504 U.S. 428 (1992), and Anderson v. Celebrezze, 460 U.S. 780 (1983), is similarly unpersuasive, as the Supreme Court in both those cases began its analysis with the presumption that the petitioning voters had a fundamental right to vote, and from there proceeded to determine whether certain limitations imposed on that right are permissible under the circumstances presented. Plaintiffs here, having been convicted of felonies and accordingly stripped of the right to vote among many other privileges and rights associated with citizenship, no longer have a fundamental right to vote. The Court’s holding in Richardson v. Ramirez, 418 U.S. 24 (1974), continues to control that issue.
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Court, in examining the equal-protection status of these disparities, “declined to apply any heightened scrutiny based either on wealth as a suspect classification or on education as a fundamental right.” Papasan v. Allain, 478 U.S. 265, 283–84 (citing Rodriguez, 411 U.S. at 35). Because public education, though important, was “not among the rights afforded explicit protection under our Federal Constitution,” Rodriguez, 411 U.S. at 35, the Court concluded that the State's school financing scheme, even though it resulted in funding disparities based on wealth, would be constitutional if it bore “some rational relationship to a legitimate state purpose.” Id. at 44; cf. Papasan, 478 U.S. at 289–92 (likewise concluding that wealth was not a suspect classification, such that the unequal distribution of funding to different school districts was subject to the rational-basis standard, but remanding for reconsideration of the issue under the particular facts of that case). Cf. Robinson v. Fauver, 932 F. Supp. 639, 644 (D.N.J. 1996) (stating, for purposes of analyzing a prison inmate’s assertion that a New Jersey statute violated his right to equal protection by discriminating on the basis of indigence, “[w]ealth . . . is not, alone, a suspect class for purposes of equal protection analysis” (citing Rodriguez, 411 U.S. at 24)). See also Romer v. Evans, 517 U.S. 620, 635 (1996) (holding that a law targeting a non-suspect class of people, in that case gays and lesbians, “must bear a rational relationship to a legitimate governmental purpose”).
The cases cited by Plaintiffs do not lead to a different conclusion. Because wealth is not a suspect classification, the Court must uphold the statutory scheme challenged by the Plaintiffs unless it is not rationally related to a legitimate state purpose.
(4) Section 40-29-202 Passes the Rational-Basis Test The “rational-basis” standard of review of a challenged state statute is extremely deferential to the State. As the Supreme Court has emphatically stated: [E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Where there are plausible reasons for Congress’ action, our inquiry is at an end. This standard of review is a paradigm of judicial restraint. The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. FCC v. Commc’ns, Inc., 508 U.S. 307, 313–14 (1993) (internal quotation marks and citations omitted). Accordingly, the statute at issues bears “a strong presumption of validity,” id. at 314–15 (citing Lyng v.
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Auto. Workers, 485 U.S. 360, 370 (1988)), and the Plaintiffs, not the State, bear the burden “to negative every conceivable basis which might support it,” id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
The State Officials suggest several alternative bases in support of § 40-29-202, subparts (b) and (c): (1) that the State has a legitimate interest in protecting the ballot box from felons who continue to break the law by not abiding by enforceable court orders (whether to pay restitution or child support), and that § 40-29-202 is rationally related to this legitimate state interest; (2) that the state has a strong public policy interest in encouraging the payment of child support and thereby promoting the welfare of children, and prohibiting the re-enfranchisement of ex-felons who owe back child support is rationally related to that legitimate state interest; and (3) that the State has a legitimate interest in encouraging convicted felons to complete their entire sentences, including the payment of restitution, and withholding the restoration of voting rights from felons who have not completed their entire sentence is rationally related to that legitimate State objective. The Court further observes that the State may legitimately determine that only those convicted felons who have fully paid all restitution ordered as part of their sentence are sufficiently rehabilitated to be entitled to vote. Cf. Shepherd v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 1978) (holding that the Texas system for restoring convicted felons to the franchise, which only provided a mechanism for restoration of voting rights to those felons convicted in state as opposed to federal court, bore a rational relationship to the state's interest in limiting the franchise to “responsible voters”); Coronado v. Napolitano, No. CV-07-1089-PHX-SMM, 2008 WL 191987, at *4 (D. Ariz. Jan. 22, 2008) (recognizing that rehabilitation is one of the goals of requiring restitution as part of a criminal sentence, and holding that requiring payment in full of restitution is rationally related to that legitimate governmental interest).
In light of the highly deferential rational-basis analysis, the Court is compelled to find that the challenged statutory provisions are rationally related to legitimate state interests and therefore do not violate Plaintiffs’ right to equal protection. With regard to Plaintiffs’ insistence that they should be able to conduct discovery and present evidence to rebut the State Officials’ asserted rational bases for the statute, the law, again, simply does not support Plaintiffs’ position. As the Supreme Court has stated:
[B]ecause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the
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challenged distinction actually motivated the legislature. . . . In other words, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.
FCC v. Beach Commc’ns, 508 U.S. at 315. Accordingly, although the burden is clearly upon the Plaintiffs
as the challenging party “to negative any reasonably conceivable state of facts that could provide a
rational basis for the classification,” Bd. of Trustees v. Garrett 531 U.S. 356, 360 (2001) (internal
quotation marks and citations omitted), Plaintiffs must carry that burden by resorting to logic rather than to
discovery.
They attempt to do so by insisting that ”denying a citizen access to a fundamental right ‘for failing
to do that which they cannot do’ is irrational and cannot survive any level of scrutiny.” (Doc. No. 67, at 16, quoting Zablocki v. Redhail, 434 U.S. 374, 394 (1978) (Stewart, J., concurring in judgment).).4 Simply
asserting the State’s action is irrational does not make it so. The State has asserted rational reasons for
the legislation, and, as already discussed, the fact that the statute may discriminate on the basis of wealth is not, alone, a reason for striking it down.5
Further, the Court is cognizant of the fact that the statutory requirement that convicted felons be
4 In Zablocki, the Supreme Court overturned a Wisconsin statute which provided that no person having minor children not in his or her custody and for whom he or she owed child support could marry without court approval. A majority of the Court, lead by Justice Marshall, held that marriage was a right of “fundamental importance,” that the statute at issue significantly interfered with that right, and therefore that the statute was subject to strict scrutiny. 434 U.S. at 383. The Court further found that the statute at issue was not narrowly tailored to further a compelling state interest and therefore violated the Equal Protection Clause. Justice Stewart filed an opinion concurring in judgment in which he observed that the “Equal Protection Clause deals not with substantive rights or freedoms but with invidiously discriminatory classifications,” of which race was the paradigmatic example. Id. at 391 (Stewart, J., concurring). On that basis, Justice Stewart believed that the statute was problematic, not because it affected some people differently than others but because it was an unwarranted encroachment upon a constitutionally protected freedom and therefore violated the Due Process Clause of the Fourteenth Amendment. Read in context, the statement quoted in the Plaintiffs’ brief should be read to assert that, insofar as the government’s objective was to obtain payment from persons wishing to marry and thereby to reduce the State’s welfare load, it was irrational for the State to expect to further that interest by requiring payment from those who were indigent and could not pay. Justice Stewart also recognized however, that the State’s requirement was “substantially more rational if viewed as a means of assuring the financial viability of future marriages.” Id. He just questioned whether the statute was narrowly tailored to further that objective.
5 Plaintiffs have not addressed the question of whether they may be able to obtain a Court order modifying their child-support obligations or either reducing or eliminating their obligation to pay past-due amounts based on their financial status. Nor have they addressed what effect doing so might have on their eligibility to register to vote.
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current in all child-support payments before being eligible for reenfranchisement bears a particularly

tenuous relationship with any legitimate state objective particularly when, as appears to be the case for

plaintiffs Johnson and Harris, the parent owing past-due child support actually has custody of the child

and cannot in any sense be charged with being a “dead-beat” parent. Plaintiffs argue that this restriction

on voting-rights restoration is no more rational than a requirement that a convicted felon be current on

mortgage payments or credit card bills before being permitted to register to vote. Plaintiffs may well be

correct, but the fact remains that Tennessee has a legitimate interest in encouraging payment of child-

support obligations, and § 40-29-202(c) is not unrelated to the promotion of that interest.

Essentially the only real argument Plaintiffs offer in their attempt to negate the validity of the State

Officials’ proffered rational basis for the legislation at issue is that “[t]here is no reason to believe that the

non-payment of an often sizeable financial obligation immediately upon release from supervision can in

any way be used as a proxy for determining a citizen’s commitment to abide by the laws. If anything, the

[legal financial obligation] requirement creates a serious barrier for purposes of rehabilitation and

reintegration into society . . . .” (Doc. No. 67, at 16.) While Plaintiffs may well be correct, their argument

is best addressed to the state legislature. Cf. Richardson v. Ramirez, 418 U.S. at 55 (acknowledging the

respondents’ argument “that it is essential to the process of rehabilitating the ex-felon that he be returned

to his role in society as a fully participating citizen when he has completed the serving of his term,” but

also recognizing that it was not the Court’s role “to choose one set of values over the other,” and that

policy arguments of this type were more appropriately “addressed to the legislative forum which may

properly weigh and balance them against those advanced in support of California's present constitutional

provisions”) Id.

In sum, the Court finds that subsections (b) and (c) of Tenn. Code Ann. § 40-29-202, the

provisions challenged by Plaintiffs, do not violate the Equal Protection Clause. The first and second

counts of Plaintiffs’ Amended Complaint are therefore subject to dismissal.

B.

Whether § 40-29-202 Violates the Twenty-Fourth Amendment

Section 1 of the Twenty-Fourth Amendment to the United States Constitution states:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

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The Supreme Court has construed the Voting Rights Act as creating a private right of action to enforce
the Twenty-Fourth Amendment’s prohibition against imposition of a poll tax. Morse v. Republican Party of
Va., 517 U.S. 186, 231 (1996).
The Supreme Court first had occasion to construe this Amendment in the case of Harman v.
Forssenius, 380 U.S. 528 (1965), where it noted the purposes and concerns that prompted its passage:
One of the basic objections to the poll tax was that it exacted a price for the privilege of exercising the franchise. . . . Another objection to the poll tax raised in the congressional hearings was that the tax usually had to be paid long before the election—at a time when political campaigns were still quiescent—which tended to eliminate from the franchise a substantial number of voters who did not plan so far ahead. The poll tax was also attacked as a vehicle for fraud which could be manipulated by political machines by financing block payments of the tax. In addition, and of primary concern to many, the poll tax was viewed as a requirement adopted with an eye to the disenfranchisement of Negroes and applied in a discriminatory manner.
Id. at 539–40 (footnotes omitted). The Court applied the Amendment in that case to strike down a
Virginia statute that required voters either to pay the same poll tax still required at that time in state
elections or to file a certificate of residence six months prior to the election, largely on the basis that
states “may not impose a penalty on those who exercise a right guaranteed by the Constitution.” Id. at
540 (citations omitted). A year later, the Court struck down Virginia’s poll tax altogether, even as it
applied to state elections, on equal-protection grounds. Harper v. Va. Bd. of Elections, 383 U.S. 663
(1966).
Neither the Supreme Court nor any Circuit Court of Appeals has, based on this Court’s research,
ever applied the Twenty-Fourth Amendment in any context that did not involve an explicit and unambiguous poll tax.6 The Second Circuit case on which the Plaintiffs rely, Bynum v. Connecticut
6 See, e.g., Gonzalez v. Arizona, 485 F.3d 1041, 1049 (9th Cir. 2007) (in a case involving a Twenty-Fourth Amendment challenge to a state statute requiring persons wishing to register to vote for the first time present proof of citizenship, the court rejected plaintiffs’ argument that the statute required some citizens to spend money to obtain documents necessary to register to vote and therefore amounted to a tax on voting, on the grounds that voters did not have to choose between paying a poll tax and providing proof of citizenship when registering to vote, nor did the challenged provision “make[ ] the affluence of the voter or payment of any fee an electoral standard” (quoting Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966)); Johnson v. Bush, 405 F.3d 1214, 1216 n.1 (11th Cir. 2005) (en banc) (rejecting a challenge to Florida’s felon disenfranchisement law and observing, in a footnote, that although the plaintiffs also challenged the law as a violation of state and federal prohibitions against poll taxes, it did not actually reach the question of “whether conditioning an application for clemency on paying restitution would be an invalid poll tax”); Howard v. Gilmore, No. 99-2285, 2000 WL 203984, at *2,
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Commission on Forfeited Rights, 410 F.2d 173 (2d Cir. 1969), is not to the contrary. In that case, the plaintiff brought suit asserting that Connecticut, having agreed to permit ex-felons to regain vote and having established administrative machinery for that purpose, could not then deny access to the right to vote solely because an ex-felon is too poor to pay the required fee of five dollars. The plaintiff sought injunctive and declaratory relief and also requested the district court convene a three-judge panel to review his claim, a three-judge panel being the only mechanism available at the time for enjoining enforcement of a state statute. The district court denied the request for a three-judge panel and dismissed the claims. The Second Circuit reversed, holding simply that the claimant raised a “substantial question which merits the consideration of a three-judge court.” Id. at 175. Notably, Bynum predates Richardson v. Ramirez, such that even if the Second Circuit had reached any holding or directed the three-judge panel as to how it should rule on the plaintiff’s claims, its decision would be of limited precedential value.
The few district courts of which this Court is aware that have considered the precise question raised here have concluded that statutes requiring convicted felons to pay all court-ordered restitution before having their voting rights restored do not violate the Twenty-Fourth Amendment. For instance, in the case of Johnson v. Bush, 214 F. Supp. 2d 1333 (S.D. Fla. 2002), aff’d on other grounds, 405 F.3d 1214 (11th Cir. 2005) (en banc), the court distinguished between a condition imposed on the restoration of voting rights once those rights had been legally stripped, and a tax on a still-existing right to vote:
An unconstitutional poll tax . . . directly burdens the exercise of an individual's proper exercise of their right to vote. As previously stated in this order, the State has permissibly
(4th Cir. Feb. 23, 2000) (rejecting an ex-felon’s claim that the requirement that he pay a ten dollar fee in order to begin the process of having his civil rights restored—and consequently his right to vote—violated the Twenty-Fourth Amendment, stating, “it is not [plaintiff’s] right to vote upon which payment of a fee is being conditioned; rather, it is the restoration of his civil rights upon which the payment of a fee is being conditioned. Consequently, [plaintiff] states no claim under the Twenty-fourth Amendment.”); Beare v. Briscoe, 498 F.2d 244, 245 n.1 (5th Cir. 1974) (affirming the district court’s holding that a Texas voter registration requirement violated the Equal Protection Clause but observing, in a footnote, that it was “unnecessary to consider the [plaintiffs’] alternative argument that on the facts of this case, annual voter registration is a substantive equivalent of a poll tax and thus conflicts with the due process clause of the Fourteenth Amendment and the Twenty-Fourth Amendment”).
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stripped Plaintiffs of their right to vote along with other civil rights pursuant to their felony convictions. The State is not constitutionally obligated to return this right to them on completion of their sentence. The victim restitution requirement, then, does not unduly burden the exercise of their right to vote given that that right has already been stripped from them. The victim restitution requirement is not a special fee that they must pay in order to exercise a right already existing in them, but a requirement made within the authority of the State to begin the process of having their civil rights fully restored.
Id. at 1343 (footnotes and citation omitted).
In another very recent opinion, the District of Arizona considered a Twenty-Fourth Amendment
challenge to a state statute requiring ex-felons to pay all court-ordered victim restitution before they could
regain the right to vote. Coronado v. Napolitano, No. CV-07-1089-PHX-SMM, 2008 WL 191987, at *4–*5
(D. Ariz. Jan. 22, 2008). In reaching its decision, the court first observed that felons in Arizona have no
right to vote—fundamental or otherwise—that could be abridged by the statutes they challenged since
that right had been lawfully stripped once they were convicted of a felony. Thus, the restoration of civil
rights once they have been lawfully stripped is a “creature of statute,” id. at *5 (quoting State v.
Buonafede, 814 P.2d 1381, 1383 (Ariz. 1991)). The court continued:
The question remains whether Plaintiffs state a claim on the grounds that the fines and restitution requirement denies them the right to vote “for reason of failure to pay a poll tax or any other tax.” U.S. Const. amend. XXIV. That inquiry turns on whether the fines and restitution requirement constitutes a “tax,” as Plaintiffs allege that their civil rights would otherwise be automatically restored under A.R.S. § 13-912.
“Poll tax” is defined as “a fixed tax levied on each person within a jurisdiction.[”] Black's Law Dictionary 1498 (8th ed.2004). “Poll taxes are laid upon persons . . . to raise money for the support of government or some more specific end.” Breedlove v. Suttles, 302 U.S. 277, 281 (1937), overruled on other grounds by Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966). Although a state may not make “the affluence of the voter or payment of any fee an electoral standard,” states do have “the power to fix qualifications.” Harper, 383 U.S. at 666, 668. States may permissibly fix as a qualification for voting the requirement that a persons [sic] not have been convicted of a felony. It follows that, having decided to re-enfranchise exfelons, Arizona may permissibly fix as a qualification the requirement that those individuals complete the terms of their sentences. The Arizona laws do not make ability to pay “an electoral standard,” but limit re-enfranchisement to those who have completed their sentences— including the payment of any fine or restitution imposed.
Coronado, 2008 WL 191987, at *5 (footnote and some citations omitted). On that basis, the court
rejected the plaintiffs’ Twenty-Fourth Amendment challenge.
This Court finds the reasoning employed by the District of Arizona and the Southern District of
Florida to be persuasive. Plaintiffs here, having been convicted of committing a felony, no longer have a
fundamental right to vote, so the statutory limitations on the restoration of that right do not impinge a right
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15

already granted, but instead define the conditions upon which restoration of that right will be premised. It

is not unreasonable or impermissible for a state to require a convicted felon to complete his entire sentence, including the payment of restitution,7 prior to having his voting rights restored. Further,

although payment of child support is not part of the Plaintiffs’ sentences, the obligation is a legal one that

arises from a court order. Imposing a requirement that convicted felons comply with such outstanding

court orders cannot reasonably be construed as a “tax” on voting. The policy decisions that led to the

passage of the challenged statutory provisions do not raise any of the concerns that resulted in the

prohibition of poll taxes in the first place.

Because Plaintiffs come to the bar already stripped of their fundamental right to vote and because

the requirements imposed by statute cannot be deemed taxes, the Twenty-Fourth Amendment’s

prohibition on poll taxes simply is not implicated.

In sum, the Court finds that the statutory provisions at issue do not violate the Twenty-Fourth

Amendment, and Count Three of Plaintiffs’ Amended Complaint must therefore be dismissed.

C.

Whether § 40-29-202 Violates the Ex Post-Facto Clause of the U.S. or Tennessee

Constitutions

Tennessee’s felon re-enfranchisement law was amended in 2006, at which time subsections (b)

and (c) of Tenn. Code Ann. § 40-29-202 were enacted. Prior to 2006, Tennessee law did not require a

convicted felon to pay all restitution or to be current on child-support payments before having his or her

voting rights restored. Thus, under the prior re-enfranchisement provisions, Plaintiffs, who were all

convicted prior to 2006, would have been eligible to have their voting rights restored. Plaintiffs insist that

the 2006 amendments, by interfering with their ability to apply for a voter’s registration card, retroactively

increase the penalties and punishment to which they are subject for their crimes and that they therefore

violate the Ex Post Facto Clauses contained in the Tennessee and United States Constitutions.

Article 1, Section 11 of the Tennessee Constitution states that “laws made for the punishment of

acts committed previous to the existence of such laws, and by them only declared criminal, are contrary

to the principles of a free Government; wherefore no Ex post facto law shall be made.” Similarly, the

United States Constitution provides that “[n]o State shall . . . pass any . . . ex post facto Law.” U.S.

7 Plaintiff’s argument that in Tennessee, payment of restitution is not part of a felon’s “sentence” is simply incorrect.

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Const., Art. 1, § 10. Although the Tennessee Supreme Court has construed the state provision to have a broader reach than its federal counterpart, Utley v. Tenn. Dep’t of Corrections, 118 S.W.3d 705, 715 (Tenn. Ct. App. 2003), when a party raises a challenge under both state and federal Ex Post Facto Clauses, the Tennessee appellate courts conduct a single analysis for both claims, and they follow United States Supreme Court precedent when interpreting both the federal and state clauses. Doe v. Bredesen, 507 F.3d 998, 1008 (6th Cir. 2007) (citing King v. Tenn. Bd. of Paroles, No. M2005-2821-COA-R3-CV, 2007 WL 1555815 (Tenn. Ct. App. May 29, 2007); Powers v. Tenn. Bd. of Probation & Paroles, No. M2005-1529-COA-R3-CV, 2007 WL 1515141, at *7 (Tenn. Ct. App. May 23, 2007); In re Rahim, No. M2006-2216-COA-R3-CV, 2007 WL 1308322, at *2 (Tenn. Ct. App. May 3, 2007)).
The Ex Post Facto Clause of the United States Constitution prohibits laws that punish retrospectively. “ ‘[A] law is retrospective if it changes the legal consequences of acts committed before its effective date.’ ” United States v. Davis, 397 F.3d 340, 347 (6th Cir. 2005) (quoting Miller v. Florida, 482 U.S. 423, 430 (1987)). “ ‘[T]he focus of the ex post facto inquiry,’ ” however, “ ‘is not whether a legislative change produces some ambiguous sort of ‘disadvantage’ . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.' ” Dyer v. Bowlen, 465 F.3d 280, 289 (6th Cir. 2006) (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995)).
When evaluating an ex post facto claim, the Court’s first task is to “ascertain whether the legislature meant to establish ‘civil’ proceedings.” Smith v. Doe, 538 U.S. 84, 92 (2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997).) If the intent of the legislature was to impose punishment, that ends the inquiry. If, however, “ ‘the intention was to enact a regulatory scheme that is civil and nonpunitive, we further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention’ to deem it ‘civil.’ ” Hendricks, 521 U.S. at 361 (quoting United States v. Ward, 448 U.S. 242, 248–49 (1980)). Because courts “ordinarily defer to the legislature's stated intent, . . . only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty[.]” Smith, 538 U.S. at 92 (internal citations and quotations omitted).
“Whether a statutory scheme is civil or criminal ‘is first of all a question of statutory construction.’ ”
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Smith, 538 U.S. at 92 (quoting Hendricks, 521 U.S. at 361) (other citation omitted). This Court must consider the statute’s text and its structure to determine the legislative objective. Smith, 538 U.S. at 92– 93 (citing Flemming v. Nestor, 363 U.S. 603, 617 (1960)). The first question then is whether the Tennessee legislature, in amending the felon franchise restoration provisions, “indicated either expressly or [implicitly] a preference for one label or the other,” i.e., civil or criminal. Smith, 538 U.S. at 93 (quoting Hudson v. United States, 522 U.S. 93, 99 (1997)).
Plaintiffs here insist that the provisions they challenge are criminal and punitive in nature, citing the recent case of May v. Carlton, 245 S.W.3d 340, 349 (Tenn. 2008), in which the Tennessee Supreme Court held that “laws disenfranchising felons are penal in nature.” See also Gaskin v. Collins, 661 S.W.2d 865, 868 (Tenn. 1983) (holding that the Ex Post Facto Clause of the Tennessee Constitution “prohibits the General Assembly from retroactively disenfranchising convicted felons who have never been adjudged infamous”). Plaintiffs also point out that the provision at issue falls within the “Criminal Procedure” section of the Tennessee Code, which Plaintiffs insist “further establishes that Tennessee’s disenfranchisement law is an additional criminal penalty for conviction.” (Doc. No. 67, at 22.)
In reality, although the challenged statute falls within Title 40 of the Tennessee Code, “Criminal Procedure,” it also falls within the Chapter entitled “Restoration of Citizenship,” the purpose of which is clearly not punitive in nature. Moreover, although laws disenfranchising felons are punitive in nature, laws providing for the re-enfranchisement of felons are not. The Court concludes that the statutory provisions at issue were not intended to be punitive or criminal in nature. Rather, they are civil, nonpunitive measures for regulating applications to have the right to vote restored.
Notwithstanding that conclusion, the Court must still “ ‘analyze the practical effect of the challenged provisions,” considering such factors as whether the State’s re-enfranchisement scheme “has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with regard to this purpose.’ ” Doe v. Bredesen, 507 F.3d 998, 1004 (6th Cir. 2007) (quoting Smith, 538 U.S. at 97) (other citations omitted). These factors, although most relevant, “are not necessarily exhaustive or dispositive.” Doe, 507 F.3d at 1005 (citing Smith, 538 U.S. at 97).
There is no evidence that the State’s re-enfranchisement scheme has traditionally been regarded
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18

as punitive, and it does not promote the traditional aims of punishment. Further, while the law

disenfranchising felons as an initial matter may certainly be construed to impose an affirmative disability,

it is not reasonable to construe the laws regulating the restoration of voting rights as doing so. Finally, as

discussed above in connection with Plaintiff’s Equal Protection Clause claim, the State’s scheme has a

rational connection to a non-punitive purpose and is not excessive in that regard. Plaintiffs have not

pointed to any other factors that should be considered relevant, and the Court concludes that the State’s

re-enfranchisement scheme is not punitive in nature. On that basis alone, Plaintiffs’ Ex Post Facto

Clause claims must fail.

Even if § 40-29-202(b) and (c) are considered to be punitive in nature, however, Plaintiffs’ claim

still fails because the provisions neither alter the definition of the crimes for which the Plaintiffs were

convicted nor increase the punishment associated therewith. More specifically, the challenged provisions

do not change the fact that Plaintiffs’ right to vote was stripped at the time they first were convicted of an

“infamous crime,” which is the critical distinction between the case at bar, on the one hand, and May and

Gaskin on the other. In those cases, upon which Plaintiffs here rely, the definition of a crime, that is,

whether it was considered a felony or a misdemeanor, changed after the plaintiffs’ convictions. In the

case at bar, however, the definition of Plaintiffs’ crimes has not changed, nor has the punishment:

disenfranchisement. The statutes pertaining to felon re-enfranchisement do not “increase” that

punishment merely by redefining what is required in order to have one’s voting rights restored, even if that

redefinition makes it more difficult for some felons to be eligible to apply to vote. As the State Officials

point out, before the passage of the challenged statutory provisions, Plaintiffs were ineligible to vote.

After their passage, Plaintiffs remained ineligible to vote. The only thing that has changed are the

conditions governing their ability to regain the right of suffrage.

Plaintiffs’ claims under the Ex Post Facto Clauses of the Tennessee and United States

Constitutions will therefore be dismissed.

D.

Whether § 40-29-202 Violates the Privileges and Immunities Clause of the U.S. and

Tennessee Constitutions

Plaintiffs do not cite, nor has the Court discovered, any case stating that the right to vote in

federal elections is a privilege or immunity of the citizens of the United States. Even assuming for

purposes of this motion that the right to vote is a privilege or immunity of the citizens of the United States,

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19

Plaintiffs' claim under the Privileges or Immunities Clause of the Fourteenth Amendment fails for the

same reasons as their claims under the Equal Protection Clause (Counts One and Two). The “privilege”

or right of ex-felons to vote in federal elections can be suspended without violating the Constitution.

Richardson v. Ramirez, 418 U.S. at 56. Plaintiffs therefore cannot legitimately claim that the privilege has

been “abridged” in violation of the Privileges or Immunities Clause of the Fourteenth Amendment. Quite

simply, a practice that is authorized under § 2 of the Fourteenth Amendment cannot be deemed

prohibited under § 1. Moreover, to the extent Tennessee’s re-enfranchisement scheme does abridge

Plaintiffs' right or privilege to vote, it is rationally related to a legitimate governmental interest as discussed

above in connection with Plaintiffs’ Equal Protection Clause challenge.

IV. PLAINTIFFS’ MOTION FOR JUDGMENT

For all the reasons discussed above, the Court finds that the State Officials are entitled to

judgment in their favor, and Counts One through Five of the Plaintiffs’ amended complaint will be

dismissed. Plaintiffs’ motion for judgment on the pleadings is premised upon the same arguments raised in their

opposition to the State Officials’ motion, none of which is availing. The Plaintiffs’ motion must therefore be denied.

V.

CONCLUSION

For the reasons stated above, the State Officials’ motion for judgment on the pleadings will be

granted and the Plaintiffs’ motion denied. Because plaintiff Alexander Friedmann’s due process claim

under Count VI of the Amended Complaint remains in play, the matter will be remanded back to

Magistrate Judge Griffin for further case management as necessary.

An appropriate Order will enter.

Thomas A. Wiseman, Jr. Senior U.S. District Judge

Case 3:08-cv-00187 Document 85 Filed 09/22/08 Page 19 of 19 PageID #: 465

 
 Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 1

No. 08-6377 ____________________________________________________
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
____________________________________________________ Terrence Johnson, et al., Plaintiffs-appellants, v. Phil Bredesen, et al., Defendants-appellees.
_____________________________________________________________
On Appeal from the United States District Court for the Middle District of Tennessee

_____________________________________________________________

BRIEF OF AMICUS-CURIAE BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL _____________________________________________________________

Erika Wood Myrna Pérez Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Fl. New York, NY 10013 (212) 998-6284

Paul W. Ambrosius Trauger & Tuke The Southern Turf Building 222 Fourth Avenue North, Nashville, Tennessee 37219 (615) 256-8585

Sidney S. Rosdeitcher Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas, New York, New York 10019 (212) 373-3000

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 2
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: 08-6377

Case Name: Johnson, et. al. v. Bredesen, et. al.

Name of counsel: Erika Wood, Myrna Pérez, Sidney Rosdeitcher and Paul Ambrosius

Pursuant to 6th Cir. R. 26.1, Brennan Center for Justice at NYU School of Law
Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
No.

CERTIFICATE OF SERVICE
I certify that on _____________A_p_r_i_l _2_3_, _2_0_0_9_____________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Paul Ambrosius

This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08

Page 1 of 2

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 3
6th Cir. R. 26.1 DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST
(a) Parties Required to Make Disclosure. With the exception of the United States government or agencies thereof or a state government or agencies or political subdivisions thereof, all parties and amici curiae to a civil or bankruptcy case, agency review proceeding, or original proceedings, and all corporate defendants in a criminal case shall file a corporate affiliate/financial interest disclosure statement. A negative report is required except in the case of individual criminal defendants.
(b) Financial Interest to Be Disclosed.
(1) Whenever a corporation that is a party to an appeal, or which appears as amicus curiae, is a subsidiary or affiliate of any publicly owned corporation not named in the appeal, counsel for the corporation that is a party or amicus shall advise the clerk in the manner provided by subdivision (c) of this rule of the identity of the parent corporation or affiliate and the relationship between it and the corporation that is a party or amicus to the appeal. A corporation shall be considered an affiliate of a publicly owned corporation for purposes of this rule if it controls, is controlled by, or is under common control with a publicly owned corporation.
(2) Whenever, by reason of insurance, a franchise agreement, or indemnity agreement, a publicly owned corporation or its affiliate, not a party to the appeal, nor an amicus, has a substantial financial interest in the outcome of litigation, counsel for the party or amicus whose interest is aligned with that of the publicly owned corporation or its affiliate shall advise the clerk in the manner provided by subdivision (c) of this rule of the identity of the publicly owned corporation and the nature of its or its affiliate's substantial financial interest in the outcome of the litigation.
(c) Form and Time of Disclosure. The disclosure statement shall be made on a form provided by the clerk and filed with the brief of a party or amicus or upon filing a motion, response, petition, or answer in this Court, whichever first occurs.

6CA-1 8/08

Page 2 of 2

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 4
Table of Contents
Page Table of Authorities……………………………………………………….……ii
Interest of Amicus………………………………………………………………………..…1
Summary of Argument…………………………………………………….……2
Argument………………………………………………………………….…….5
I. CONDITIONING RESTORATION OF VOTING RIGHTS UPON INDIVIDUALS’ ABILITY TO PAY IS INCONSISTENT WITH THE TEXT AND PURPOSE OF THE TWENTY-FOURTH AMENDMENT BECAUSE IT EXCLUDES LOW-INCOME AND MINORITY CITIZENS FROM VOTING BASED SOLELY ON THEIR ECONOMIC MEANS…………………….……………………………..5 A. The District Court’s Conclusion That Legal Financial Obligations Do Not Amount to Poll Taxes Is Contrary to the Text and Purpose of the Twenty-Fourth Amendment……........6 B. In Drafting the Twenty-Fourth Amendment, Congress Aimed to End the Disenfranchisement of Voters Based on Race and Poverty…………………………………………………..……13 C. Tennessee’s Voter Restoration Law Is Most Likely to Exclude From the Franchise the Low-Income, Minority Groups That the Twenty-Fourth Amendment Aimed to Protect……..………...17 II. HAVING CHOSEN TO RESTORE THE VOTING RIGHTS OF PERSONS CONVICTED OF FELONIES, TENNESSEE IS FORBIDDEN BY THE TWENTY-FOURTH AMENDMENT FROM DENYING THAT RIGHT ON THE BASIS OF WEALTH………………………………………………………...23
CONCLUSION………………………………………………………………..31
CERTIFICATION OF ELECTRONIC SERVICE…………….……………...33
CERTIFICATION OF COMPLIANCE……………………………………….34
i

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 5
Table of Authorities
Page(s) Cases Bearden v. Georgia,
461 U.S. 660 (1983) .................................................................................. 29
Bynum v. Connecticut Comm’n on Forfeited Rights, 410 F.2d 173 (2d Cir. 1969) ...................................................................... 27
Cipriano v. Houma, 395 U.S. 701 (1969) .................................................................................... 9
Coronado v. Napolitano, 2008 U.S. Dist. LEXIS 93291 (D. Ariz. Nov. 5, 2008) ........................... 23
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 ..................................................................................... 24
Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U.S. 583 (1926) .................................................................................. 25
Georges v. Carney, 546 F.Supp. 469 (N.D.Ill. 1982) ......................................................... 26, 27
Goldberg v. Kelly, 397 U.S. 254 (1970) .................................................................................. 26
Harman v. Forssenius, 380 U.S. 528 (1965) ........................................................................... passim
Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) .............................................................................. 9, 13
Hill v. Stone, 421 U.S. 289 (1975) .................................................................................... 9
Lubin v. Panish, 415 U.S. 709 (1974) .................................................................................... 9
ii

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 6
Madison v. Washington, 161 Wash.2d 85 (2007)....................................................................... 30, 31
Johnson v. Bush, 214 F. Supp. 2d 133 (S.D. Fla. 2002) ....................................................... 23
Richardson v. Ramirez, 418 U.S. 24 (1974).................................................................................... 23
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 57 (1996) .............................................................................. 24
Shapiro v. Thompson, 394 U.S. 618 (1969) .................................................................................. 26
Sherbert v. Verner, 374 U.S. 398 (1963) .................................................................................. 26
United States v. DeMonte, 25 F.3d 343 (6th Cir. 1994)...................................................................... 30
United States v. Texas, 252 F.Supp. 234 (W.D. Tex. 1966)................................................. 9, 14, 15
Williams v. Illinois, 399 U.S. 235 (1970) .................................................................................. 29
Williams v. Rhodes, 393 U.S. 23 (1968).................................................................................... 25
Statutes Tenn. Code Ann. § 40-29-202(b)-(c).................................................... 2, 5, 12 Tenn. Code. Ann. § 40-35-320(d) ................................................................ 11 Tenn. Code. Ann. § 8-21-403 ....................................................................... 11
iii

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 7
Other Authorities 2 Virginia Constitutional Convention
(Proceedings and Debates, 1901-1092) 3076-3077 .................................. 14
Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 228 (Basic Books 2000) ..................................... 15, 16
Carmen DeNavas-Walt, et al. U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2005 (2006)................. 19
David A. Strauss, The Irrelevance Of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) ................................................................. 14
Eisenhower Foundation, What We Can Do Together: A Forty Year Update of the National Advisory Commission on Civil Disorders (2008) .................................................... 18
Frederic D. Ogden, The Poll Tax in the South 59 (Univ. Ala. Press 1958) ................................................................. passim
H.R.Rep. No. 439, 89th Cong., 1st Sess. (1965) .......................................... 15
H.R.Rep. No. 1821, 87th Cong., 2d Sess. (1962) ..................................... 8,12
Harry J. Holzer, et. al, Employment Barriers Facing Ex-Offenders (2003).................................. 19
Hearings before a Subcommittee of the Senate Committee on the Judiciary on S.J.Res. 29, 87th Cong., 2d Sess.................................. 7
Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on Amendments to Abolish Tax and Property Qualifications for Electors in Federal Elections, 87th Cong., 2d Sess. .................................................................................... 7
iv

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 8
Jeff Manza & Christopher Uggen, Locked Out: Felony Disenfranchisement and American Democracy (2006) ................................................................... 20
Jeffrey Reiman, Liberal And Republican Arguments Against the Disenfranchisement of Felons Criminal Justice Ethics (Winter/Spring 2005) .......................................... 18
Elaine Sorensen & Chava Zibman, The Urban Institute, “Poor Dads Who Don’t Pay Child Support: Deadbeats or Disadvantaged?”,B-30 New Federalism: National Survey of America’s Families, Apr. 2001 ................................ 21
Marisa J. Demeo and Steven A. Ochoa, Diminished Voting Power in the Latino Community: The Impact of Felony Disenfranchisement Laws in Ten Targeted States (2003) ........................................................................................................ 18
Nathaniel Persily, Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws, 89 Georgetown L.J. 2181 (2001) .............................................................. 16
Outlawing Payment of Poll or Other Tax as Qualification for Voting in Federal Elections, HR Rep No 1821, 87th Cong, 2d Sess (1962) ........................................... 8
Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, U.S. Department of Justice, Prisoners in 2005 (2006). ..................................... 18
Policy, Planning, & Research Division, Tenn. Department of Corrections, FY 2008: Statistical Abstract (2008)............................................................... 20
Rebekah Diller et al., Brennan Center for Justice, Maryland’s Parole Supervision Fee: A Barrier to Reentry (2009) ......................................... 22
Report of the Committee on the Judiciary, 88th Cong., 1st Sess., 2 (1963) .. 17
Report of the Committee on the Judiciary, 88th Cong., 1st Sess., 2 (1963). . 16
S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3 (1965) ..................................... 15
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Sentencing Project, Felony Disenfranchisement Laws in the United States (2008)................. 18
Sloan G. Speck, Comment, “Failure To Pay Any Poll Tax Or Other Tax”: The Constitutionality Of Tax Felon Disenfranchisement, 74 U. Chi. L. Rev. 1549 (2007)................................................................... 7
Steven Raphael, The Employment Prospects of Ex-Offenders, Focus Vol. 25, No. 2 (Fall-Winter 2007–08) ............................................ 20
The University of Georgia’s Initiative on Poverty and the Economy, Interactive Poverty Statistics, http://www.poverty.uga.edu/stats/stats.php ................ 20
U.S Census Bureau, Tennessee State and County QuickFacts (2007)......... 20 Rules Federal Rule of Appellate Procedure 29(a) .................................................... 2 Constitutional Provisions U.S. CONST. amend. XXIV ...................................................................... 6, 7 U.S CONST. amend. XIV…………………………………………………23, 24 U.S. CONST. amend XV…………………………………………………..24
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INTEREST OF AMICUS The Brennan Center for Justice at NYU School of Law (the “Brennan Center”) is a not-for-profit, nonpartisan policy and law institute that focuses on issues of democracy and justice. Through the activities of its Democracy Program, the Brennan Center works to eliminate barriers to full and equal political participation and to ensure that American public policy and political institutions reflect the diverse voices and interests that make for a rich and energetic democracy. The Brennan Center’s Right to Vote project, housed within the Democracy Program, focuses exclusively on restoring voting rights to persons with criminal convictions, and engages in litigation, legislative and administrative advocacy, and public education nationwide at the federal and state level. The Brennan Center’s Justice Program works to ensure that governmental costs are not unfairly shifted to those least able to shoulder them by imposing legal financial obligations (“LFOs”) on persons charged with crimes. The Brennan Center’s efforts in the promotion and protection of voting rights, particularly on behalf of disadvantaged and minority communities, are extensive, including authoring numerous reports; launching legislative initiatives; and participating as counsel or amicus in a number of federal and state cases involving voting and elections issues.
1

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 11
Amicus submits this Brief in support of Plaintiffs’ claim that Tennessee’s voter restoration law, Tenn. Code Ann. §§ 40-29-202(b) and 40-29-202(c), conditions the right to vote of persons with felony convictions on their ability to pay legal financial obligations — namely child support arrears and/or restitution — and is therefore an unconstitutional “poll tax” in violation of the Twenty-Fourth Amendment. Accordingly, Amicus contends that the District Court’s grant of Defendants’ motion for judgment on the pleadings was in error, and should be reversed by this Court.1
Pursuant to Federal Rule of Appellate Procedure 29(a), counsel for the parties have consented to the Brennan Center appearing as amicus curiae in this matter and to the filing of this Brief.
SUMMARY OF THE ARGUMENT This is not a case about whether people should pay their child support or restitution. There is no dispute that the state has an interest in having individuals meet those obligations when properly imposed. Instead, this case is about whether a state may impose wealth-based qualifications on the right to vote. Amicus submits that Tennessee’s law denying the right to vote
1 In addition to alleging that Tennessee’s law violated the Twenty-Fourth Amendment, Plaintiffs’ Complaint included several other state and federal law claims, see R. 57 Plaintiffs’ Amendment Complaint, p. 7–11, that the District Court also dismissed. While Amicus agrees with Plaintiffs’ position on each of those claims, it limits this Brief to the violation of the Twenty-Fourth Amendment.
2

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 12
to persons with felony convictions who are not in prison, on parole, or on probation — based solely on the fact that they have not paid restitution or are not current in their child support — violates the Twenty-Fourth Amendment.
This appeal involves a modern application of the egalitarian policies that motivated the adoption of the Twenty-Fourth Amendment in response to the systemic disenfranchisement of southern Blacks during the postReconstruction era: an individual’s inability to pay that results in the vast disenfranchisement of low-income persons of color on account of a criminal history.
The historical record leading to the ratification of the Twenty-Fourth Amendment reveals that the Amendment’s drafters sought to eliminate the disenfranchisement of low-income voters, particularly African Americans, based on their economic status or inability to pay. Those goals retain their significance today because the individuals most likely to be denied restoration of their voting rights in Tennessee based upon an inability to pay child support arrears or restitution are low-income persons of color — the very group that the drafters of the Twenty-Fourth Amendment intended to protect.
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This Court should reject the District Court’s formalistic interpretation of the Twenty-Fourth Amendment as contrary to the text and purpose of its drafters. The lower court’s conclusion that requirements to pay restitution and child support arrears “cannot be deemed taxes,” R.85 Memorandum Opinion, p. 15 [hereinafter “R.85 Sep. 22 Mem.”] overlooks the purpose of the Amendment to eliminate all wealth-based restrictions on voting irrespective of their form. Nor can Tennessee’s law be characterized as a valid voter “qualification” under Supreme Court precedent.
The District Court erroneously reasoned that because Plaintiffsappellants were “already stripped” of the right to vote by reason of their convictions, id., Tennessee may impose restrictions on restoring that right that are wholly unrelated to the capacity to vote. That reasoning flies in the face of the well-settled principle that once a state chooses to extend rights to persons by statute, it is required to do so in a manner consistent with the Constitution.
The District Court’s conclusion that it may deny the right to vote to those who cannot afford to pay child support and restitution because Tennessee may permissibly “define the conditions upon which restoration of [the right to vote] will be premised,” id., is equally mistaken. The
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prohibitions of the Twenty-Fourth Amendment bar Tennessee from conditioning the right to vote on such wealth-based requirements.
Finally, Tennessee cannot extend a criminal sanction based on an individual’s wealth. Although two individuals may have the exact same conviction and serve the exact same sentence, the one who can afford to pay his restitution and child support arrears will be eligible to vote, while the one who is too poor will have the sanction of disenfranchisement extended. Thus, wealth and the ability to pay draws a critical distinction separating those who may vote from those who may not under Tennessee Code Ann. §§ 40-29-202(b) and 40-29-202(c).
ARGUMENT I. CONDITIONING RESTORATION OF VOTING RIGHTS
UPON INDIVIDUALS’ ABILITY TO PAY IS INCONSISTENT WITH THE TEXT AND PURPOSE OF THE TWENTYFOURTH AMENDMENT BECAUSE IT EXCLUDES LOWINCOME AND MINORITY CITIZENS FROM VOTING BASED SOLELY ON THEIR ECONOMIC MEANS. The text of the Twenty-Fourth Amendment is purposefully broad and prohibits all wealth-based conditions to voting, no matter how labeled or designed. In adopting the Amendment, its drafters aimed to eliminate the historic disenfranchisement of African Americans and other minorities who lacked the financial resources to pay such sums. Tennessee’s voter restoration law conflicts with that purpose because it imposes a wealth-based
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condition on restoring the right to vote that disproportionately excludes
African Americans from the political process solely because they are too
poor to pay child support arrears and restitution.
A. The District Court’s Conclusion That Legal Financial Obligations Do Not Amount to Poll Taxes Is Contrary to the Text and Purpose of the Twenty-Fourth Amendment
In concluding that Tennessee’s voter restoration law is not in conflict
with the Twenty-Fourth Amendment because child support arrears and
restitution “cannot be deemed taxes,” R.85 Sep. 22 Mem., p. 15, the District
Court employed an overly formalistic interpretation of the Twenty-Fourth
Amendment that is inconsistent with the Amendment’s text, the intent of its
drafters, and Supreme Court precedent.
The Twenty-Fourth Amendment to the U.S. Constitution states:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representatives of Congress, shall not be abridged by the United States or any State for reason of failure to pay any poll tax or other tax. U.S. CONST. amend. XXIV (emphasis added). That broad language makes clear that Congress intended the Amendment to
be applied to a range of wealth-based restrictions on voting in a variety of
contexts. By prohibiting taxes that “abridge” individuals’ right to vote, the
Amendment’s drafters chose language that would address not only measures
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effecting outright denials of voting rights, but also restrictions that could frustrate or discourage low-income voters’ participation in the electoral process. See Sloan G. Speck, Comment, “Failure To Pay Any Poll Tax Or Other Tax”: The Constitutionality Of Tax Felon Disenfranchisement, 74 U. Chi. L. Rev. 1549, 1568 (2007) (arguing that by its terms, “[t]he rights created by the Twenty-fourth Amendment cannot be ‘indirectly denied’”). The Amendment also broadly prohibits all financial preconditions on voting, whether “poll taxes” or “other tax[es]” that achieve the same result. U.S. CONST. amend. XXIV.
Legislative history confirms that the Amendment’s drafters intended that text to be interpreted broadly to include any wealth-based restrictions that “exacted a price for the privilege of exercising the franchise.” Harman v. Forssenius, 380 U.S. 528, 539 (1965) (citing Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on Amendments to Abolish Tax and Property Qualifications for Electors in Federal Elections, 87th Cong., 2d Sess. 14-22, 48-58; Hearings before a Subcommittee of the Senate Committee on the Judiciary on S.J.Res. 29, 87th Cong., 2d Sess. 33). Indeed, when Congress proposed the Amendment, it specifically intended to prevent the government “from setting up any substitute tax in lieu of a poll tax” as a means of negating “the amendment’s
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effect by a resort to subterfuge in the form of other types of taxes.” Outlawing Payment of Poll or Other Tax as Qualification for Voting in Federal Elections, H.R. Rep. No. 1821, 87th Cong., 2d Sess. 5 (1962). Thus, it is clear that in addressing the disenfranchisement of low-income voters, the drafters of the Twenty-Fourth Amendment sought to eliminate all wealth-based restrictions on voting, regardless of the form such “taxes” would take.
In accordance with this legislative purpose, the United States Supreme Court has interpreted the Twenty-Fourth Amendment expansively to prohibit a variety of financial burdens on the right to vote. In Harman, the Court concluded that “no equivalent or milder substitute” to a poll tax “may be imposed” as a prerequisite to voting, invalidating a Virginia law that required voters to “either pay the customary poll taxes as required for state elections or file a certificate of residence.” 380 U.S. at 538, 542. Although the certificate Virginia offered as an alternative to paying a poll tax was not technically a tax, the Court nevertheless concluded that it “serv[ed] the same function as the poll tax” and thus “constitute[d] an abridgment of the right to vote in federal elections in contravention of the Twenty-fourth Amendment.” Id. at 538.
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The Supreme Court has also struck down various other measures that conditioned voting or other forms of political participation upon the payment of fees. See, e.g., Lubin v. Panish, 415 U.S. 709 (1974) (invalidating a statute that required indigent persons to pay candidate filing fees); Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966) (finding $1.50 poll tax unconstitutional); Hill v. Stone, 421 U.S. 289, 300 (1975) (invalidating Texas law that “disfranchise[d] persons otherwise qualified to vote, solely because they ha[d] not rendered some property for taxation”); Cipriano v. Houma, 395 U.S. 701, 702 (1969) (finding unconstitutional Louisiana law permitting only “property taxpayers” to vote in elections approving municipal revenue bonds).
In addition, whether characterized as a voter qualification or an economic restriction on voting, laws that condition voting upon payment of any sum constitute an imposition of poll taxes that violate the TwentyFourth Amendment. In Harper, 383 U.S. at 670, the United States Supreme Court was unequivocal: “wealth or fee paying has . . . no relation to voting qualifications” and thus can never be made a condition of voting. Furthermore, in Harman, the Supreme Court rejected overly formalistic distinctions between qualifications and poll taxes, deeming unpersuasive the State’s characterization of its poll tax and residency certificate as a means of
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determining voter qualifications by “limiting suffrage to those who took a sufficient interest in the affairs of the State to qualify themselves to vote” or to maintain “continuing residence.” 380 U.S. at 544 (internal citation and quotation marks omitted). Rather, the Court reasoned, the Twenty-Fourth Amendment “nullifies sophisticated as well as simple-modes” of abridging voting rights. Id. at 540–41. Looking to the substance of the alleged “qualification” over its form, the Court concluded that Virginia’s law requiring a certification in lieu of a poll tax could not be upheld because it distinguished between qualified voters by burdening exclusively those who could not afford the tax. Id. at 542–44 (noting that the poll tax was “abolished absolutely as a prerequisite to voting and [that] no equivalent or milder substitute may be imposed”). Because Tennessee’s voter restoration conditions make an individual’s wealth central to the determination of voting rights, it is not a valid voter qualification; it is instead a prohibited poll tax within the meaning of the Twenty-Fourth Amendment.
Moreover, even the most literal application of the word “tax” proves erroneous the District Court’s conclusion that “the requirements imposed by the statute cannot be deemed taxes.” R. 85 Sep. 22 Mem., p.15. In some instances, child support arrears and restitution payments paid by persons with convictions in Tennessee do, in fact, fund legislative programs and
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policies in the state. For example, the conviction of an adult defendant for particular offenses involving juvenile delinquents can result in the adult being ordered to pay restitution to the State, which is then deposited in the state general funds and used to fund programs run by the Department of Children’s Services. Tenn. Code Ann. § 40-35-320(d).2 Additionally, when a county clerk receives, handles, or disburses child support arrears under and by court order, the clerk is entitled to charge the party responsible for the payment the sum of five percent of the payment as surcharge. This surcharge is then added to the amount of the court-ordered support. Tenn. Code Ann. § 8-21-403(a). Hence, even under an improperly circumscribed definition of poll taxes, Tennessee’s requirement that individuals pay all child support arrears and restitution as a prerequisite to voting is indisputably a poll tax because it conditions voting on one’s financial ability to pay fees that, in some instances, support the government.
More fundamentally, as the drafters of the Twenty-Fourth Amendment recognized, the revenue or other interests of the State served by poll taxes do not inoculate these wealth-based voting restrictions against Twenty-Fourth Amendment prohibitions. See H.R. Rep. No. 1821 at 4035
2 This occurs when an adult defendant is convicted of an offense related to conduct resulting in an adjudication of delinquency of a juvenile requiring treatment and confinement in excess of 90 days in a department of correction facility. Tenn. Code. Ann. § 40-35-320(a).
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(dismissing as irrelevant claims that poll taxes were valuable means of raising revenue for Southern school systems); see also Harman, 380 U.S. at 544 (stating that “the poll tax, regardless of the services it performs, was abolished by the Twenty-fourth Amendment”) (emphasis added); see also Frederic D. Ogden, The Poll Tax in the South 59 (Univ. Ala. Press 1958) (noting that the poll tax is “nominally a revenue measure” because while “it does provide some revenue, [] primarily it restricts voting”) [hereinafter “Ogden”].
In the end, whether an LFO like child support arrears or restitution is a poll tax is determined simply by whether the law conditions the right to vote on an individual’s ability to pay a government-imposed sum. See Harman, 380 U.S. at 538-40. By its terms, Tennessee’s voting rights restoration law does just that by requiring persons who have been convicted of a felony to pay all restitution and child support arrears in order to have their right to vote restored. Tenn. Code Ann. § 40-29-202(b)-(c). Significantly, the child support arrears and restitution owed by each Plaintiff-appellant to get their voting rights restored far surpass the $1.50
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poll tax deemed impermissible in Harper, 383 U.S. at 663, which even by modern standards would only amount to $9.83.3
In sum, the District Court’s conclusion that conditioning voting rights on satisfaction of child support arrears and restitution does not amount to a tax prohibited by the Twenty-Fourth Amendment is inconsistent with the Amendment’s text, the intent of its drafters, and Supreme Court precedent. Accordingly, the District Court’s decision upholding Tennessee’s voter restoration law should be reversed.
B. In Drafting the Twenty-Fourth Amendment, Congress Aimed to End the Disenfranchisement of Voters Based on Race and Poverty.
The history leading to ratification of the Twenty-Fourth Amendment makes clear that Congress and the states intended to eliminate the deliberate and de facto disenfranchisement of African Americans resulting from wealth-based restrictions on voting rampant in the post-Reconstruction era. The “[u]se of the poll tax in the South for suffrage restriction dates back to the . . . 1890’s and early 1900’s” when former Confederate States sought a legal basis for disenfranchising blacks in order to “preserve white supremacy.” Ogden, at 281.
3 http://www.bls.gov/data/inflation_calculator.htm. 13

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The motivation for poll taxes was often blatantly racist and discriminatory. A proponent of Virginia’s poll tax declared at the state’s Constitutional Convention in 1902: “‘Discrimination! Why, that is precisely what we propose . . . to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.’” Harman, 380 U.S. at 543 (quoting 2 Virginia Constitutional Convention (Proceedings and Debates, 1901-1092) 3076-3077 (Statement of the Honorable Carter Glass)). As commentators have noted, however, the discriminatory motivation for poll taxes was not always explicit: poll taxes “like the literacy test, [also] had a close historical association with the de facto disenfranchisement of African Americans.” David A. Strauss, The Irrelevance Of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1481– 82 (2001). As one district court noted in 1966, in some states “‘payment of the tax was made a voting prerequisite largely because of the belief that whites would be more apt to pay it than Negroes.’” United States v. Texas, 252 F.Supp. 234, 243 n.44 (W.D. Tex. 1966) (quoting Ogden, at 7). Tennessee did not even wait for Reconstruction to formally come to an end before imposing financial requirements for voting as a way to attack Black
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voting rights. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 105 (Basic Books 2000) [hereinafter “Keyssar”].
In the late 1930s, a coalition of social reformers launched a movement to abolish poll taxes, which they viewed as “un-American” and “an impediment to social and economic progress in the South.” Keyssar, at 236– 37. While some states unilaterally abolished poll taxes during this period, others vigorously resisted reform. Id. at 228. After several unsuccessful attempts to enact an anti-poll tax bill in Congress, reform leaders soon focused their attention on a constitutional amendment. Id. at 237. By the time the Twenty-Fourth Amendment was drafted and then ratified in 1964, there was an extensive public record examining the role of poll taxes in disenfranchising poor, minority voters in the United States. See Texas, 252 F.Supp. at 248 (noting “evidence before both the House and the Senate that the poll tax . . . historically . . . has been a device to disenfranchise the Negro”) (citing H.R.Rep. No. 439, 89th Cong., 1st Sess. 22 (1965); S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, at 34 (1965)); see also Ogden, at 173 (describing evidence showing that poll taxes “restrict[] suffrage significantly” in difficult economic times and serve as “an important deterrent to low income individuals at any time”).
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This historical record makes clear that when Congress drafted the Twenty-Fourth Amendment, it did so with the intention of eliminating the de facto disenfranchisement of racial and ethnic minorities through the subterfuge of economic restrictions. See Nathaniel Persily, Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws, 89 Georgetown L.J. 2181, 2208 (2001); see also Keyssar, at 269. The drafters were particularly concerned that wealth-based restrictions on voting would undermine the democratic process by elevating the voice and power of the white and wealthy over those of poor and predominantly minority members of society.
In fact, Congress rejected early attempts to qualify or limit the Amendment’s prohibition against conditioning the right to vote on one’s ability to pay. Senator Holland, who had introduced an anti-poll tax resolution in many Congresses, once offered a resolution which included a section which would have narrowed the Amendment’s protections.4 The proposed language of that section read: “Nothing in this article shall be
4 Aside from the section discussed in the text above, the balance of Senate Joint Resolution 58, introduced by Senator Holland, is substantially similar to the final text of the Twenty-Fourth Amendment, reading in relevant part: “The Right of Citizens of the United States to vote in any primary or other election for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax or to meet any property qualification.” Report of the Committee on the Judiciary, 88th Cong., 1st Sess. 2 (1963).
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construed to invalidate any provision of law denying the right to vote to paupers or persons supported at public expense or by charitable institutions.” Report of the Committee on the Judiciary, 88th Cong., 1st Sess. 2 (1963). Congress’s rejection of this proposed limitation is powerful evidence that it intended for the Amendment to provide broad protections against economic impediments on an individual’s right to vote. The egalitarian purpose and anti-discrimination principles undergirding the Amendment are equally pertinent — and must be applied with equal vigor — today.
C. Tennessee’s Voter Restoration Law Is Most Likely to Exclude From the Franchise the Low-Income, Minority Groups That the Twenty-Fourth Amendment Aimed to Protect.
Extensive empirical evidence suggests that by denying voting rights to those who cannot pay child support arrears or restitution, Tennessee’s law likely disproportionately excludes poor African Americans from the franchise based solely on their economic means. This harm is exactly that which the Twenty-Fourth Amendment sought to prevent.
Nationally, as well as in Tennessee, persons disenfranchised by felony convictions are disproportionately persons of color and are more likely to be poor. Recent national statistics suggest that African Americans represent 40 percent of all inmates sentenced to a year or more in the state and federal prison population. Paige M. Harrison & Allen J. Beck, Bureau of Justice
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Statistics, U.S. Department of Justice, Prisoners in 2005 8 (2006).5 These
rates of incarceration are significant to this case because just as “arrest,
conviction, and imprisonment fall more heavily” on persons of color, so
does felony disenfranchisement. Jeffrey Reiman, Liberal and Republican
Arguments Against the Disenfranchisement of Felons, Criminal Justice Ethics, at 4 (Winter/Spring 2005).6
Research suggests that of the estimated 5.3 million Americans who
are currently or permanently disenfranchised because of a felony conviction,
1.4 million are African-American men. Sentencing Project, Felony Disenfranchisement Laws in the United States (2008).7 Persons of color are
not only more likely to be disenfranchised, they are also more likely to be
poor. Just as during the post-Reconstruction era, race and poverty remain
linked today. See, e.g., Eisenhower Foundation, What We Can Do
Together: A Forty Year Update of the National Advisory Commission on
5 available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf. 6 available at http://www.sentencingproject.org/Admin/Documents/publications/fd_liberalrepublican_a rgum.pdf. 7 available at http://www.sentencingproject.org/Admin/Documents/publications/fd_bs_fdlawsinus.pdf. Additionally, significant numbers of Latinos are also precluded from voting because of felony disenfranchisement laws. Marisa J. Demeo and Steven A. Ochoa, Diminished Voting Power in the Latino Community: The Impact of Felony Disenfranchisement Laws in Ten Targeted States, at 6 (2003) (noting “Latinos have disproportionately higher rates of disenfranchisement compared to their presence in the voting age population”), available at http://www.maldef.org/publications/pdf/FEB18LatinoVotingRightsReport.pdf.
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Civil Disorders, 2 (2008).8 The 2005 poverty rate for African Americans was 24.9 percent, with 9.2 million persons living in poverty. Carmen DeNavas-Walt, et al. U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2005, (2006).9
Significantly, for members of minority groups who are convicted of crimes, their criminal record only exacerbates the economic disadvantages they face upon release. “[A]mong the most challenging situations [persons with felony convictions] face is that of reentry into the labor market . . . . Employment rates and earnings of persons with felony convictions are low by almost any standard — though in most cases they were fairly low even before . . . incarcerat[ion].” Harry J. Holzer, et. al, Employment Barriers Facing Ex-Offenders, (2003).10 Indeed, for persons with felony convictions, race and a criminal record “interact in powerful ways” to reduce their employment opportunities. Id. at 12 (noting that “black offenders receiv[e] less than one-seventh the number of offers received by white non-offenders with comparable skills and experience”); see also Steven Raphael, The Employment Prospects of Ex-Offenders, Focus Vol. 25, No. 2 (Fall-Winter
8 available at http://www.stanford.edu/dept/csre/pdfs/Kerner_Executive_Summary.pdf. 9 available at http://www.census.gov/prod/2006pubs/p60-231.pdf. 10 available at http://www.urban.org/UploadedPDF/410855_holzer.pdf.
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2007–08).11 Thus, upon release, low-income persons with felony convictions, the majority of whom are persons of color, are disproportionately disadvantaged in their capacity to extricate themselves from the cycle of poverty. Undoubtedly, this reality undermines their ability to pay LFOs like child support arrears and restitution as a condition of restoring their right to vote.
These trends are also evident in Tennessee where racial and ethnic minorities, in particular African Americans, are three times more likely to be disenfranchised than the general population. Jeff Manza & Christopher Uggen, Locked Out: Felony Disenfranchisement and American Democracy 250, 253 (2006) (providing 2004 statistics). And while African Americans make up only 17 percent of the population in Tennessee, U.S Census Bureau, Tennessee State and County QuickFacts, (2007),12 they constituted 46.4 percent of individuals incarcerated for a felony conviction in Tennessee in 2007–2008. Policy, Planning, & Research Division, Tenn. Department of Corrections, FY 2008: Statistical Abstract 34 (2008).13 Tennessee’s African-American citizens are also more likely to be poor than their white counterparts. The University of Georgia’s Initiative on Poverty and the
11 available at http://www.irp.wisc.edu/publications/focus/pdfs/foc252d.pdf. 12 available at http://quickfacts.census.gov/qfd/states/47000.html. 13 available at http://www.state.tn.us/correction/pdf/2008%20Statabs.pdf.
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Economy, Interactive Poverty Statistics, http://www.poverty.uga.edu/stats/ stats.php (last visited Apr. 4, 2009) (comparing Tennessee’s AfricanAmerican population poverty rate of 25.35% to white poverty rate of 10.85%).
Given that racial and ethnic minorities are most likely to be disenfranchised in Tennessee and that they are also disadvantaged economically, the State’s decision to condition restoration of voting rights upon the payment of LFOs conflicts with the purpose of the Twenty-Fourth Amendment by employing wealth-based criteria that excludes those vulnerable groups from the franchise that the Amendment was primarily intended to protect.
This is especially the case when the LFO at issue is child support arrears. Nationwide, high percentages of poor fathers — ninety percent in fact — have accrued child support arrears. See Elaine Sorensen & Chava Zibman, The Urban Institute, “Poor Dads Who Don’t Pay Child Support: Deadbeats or Disadvantaged?”, New Federalism: National Survey of America’s Families, Apr. 2001, at 1.14 Under Tennessee’s re-
14 The amounts owed could be substantial, and thus extremely difficult for poor persons to satisfy. “A 2005 University of Maryland study found that there were 17,214 child support cases in Maryland with incarcerated parents or previously incarcerated parents. The average arrears owed for each incarcerated parent was $15,933 and average arrears for parole was $13,472.” Rebekah Diller et al., Brennan Center for Justice, Maryland’s
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enfranchisement scheme, wealthy executives convicted of white collar felonies are more likely to be able to restore their voting rights after release from prison, while low-income, predominately minority offenders who cannot afford to pay or fully satisfy their child support arrears or restitution are more likely to be shut out of the political process solely because of their inability to pay. This result is anti-democratic and precisely the sort of wealth-based restriction on voting that the Twenty-Fourth Amendment condemns. See Ogden, at 290 (arguing that conditioning suffrage on ability to pay “is contrary to the democratic ideals which underlie the American governmental system” in that it limits suffrage “to an elite group”).
In sum, by conditioning voter restoration upon individuals’ payment of LFOs, Tennessee’s law undermines the fundamental purpose of the Twenty-Fourth Amendment by excluding low-income minority citizens from voting based solely on their economic means. The District Court failed to appreciate the purpose of the Amendment and the impact Tennessee’s law has on the disadvantaged minorities whom the Amendment aimed to protect.
Parole Supervision Fee: A Barrier to Reentry 14 (2009), available at http://brennan.3cdn.net/fbee4fbc0086ec8804_4tm6bp6oa.pdf.
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II. HAVING CHOSEN TO RESTORE THE VOTING RIGHTS OF PERSONS CONVICTED OF FELONIES, TENNESSEE IS FORBIDDEN BY THE TWENTY-FOURTH AMENDMENT FROM DENYING THAT RIGHT ON THE BASIS OF WEALTH. Having chosen to extend the right to vote to persons with felony
convictions, Tennessee cannot then impose wealth-based conditions on that right that violate the Twenty-Fourth Amendment.
Relying on Richardson v. Ramirez, 418 U.S. 24 (1974), a case finding an express sanction pursuant to Section 2 of the Fourteenth Amendment for disenfranchising persons with criminal convictions, the District Court concluded that Plaintiffs were “stripped” of their fundamental right to vote and that Tennessee’s restoration statute satisfied rational basis scrutiny because it served a legitimate state interest. R.85 Sep. 22 Mem., at 14–15. The District Court’s reasoning is erroneous.
Richardson has no application to the instant case. First, the disenfranchising provision at issue in Richardson flatly denied restoration of the right to vote — it did not consider whether a state could impose wealthbased conditions on the restoration of voting rights and therefore did not implicate the Twenty-Fourth Amendment.15
15 Nor should the Court be persuaded by the reasoning of Johnson v. Bush, 214 F. Supp. 2d 133 (S.D. Fla. 2002), aff’d on other grounds, 405 F.3d 1214 (11th Cir. 2005), or Coronado v. Napolitano, 2008 U.S. Dist. LEXIS 93291 (D. Ariz. Nov. 5, 2008), which is
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In this case, the later-ratified Twenty-Fourth Amendment must be taken into account; it supersedes Section 2 of the Fourteenth Amendment insofar as restoration of the right to vote in federal elections is made contingent on satisfying wealth-based requirements. Cf. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 48, 57 (1996) (holding that notwithstanding Congress’s powers to abrogate state sovereignty under the Indian Commerce Clause, later adoption of Eleventh Amendment overrode that power); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (holding that the later-adopted enforcement provisions of the Fourteenth Amendment necessarily limited the Eleventh Amendment). Accordingly, the Twenty-Fourth Amendment qualifies any authority Tennessee possesses under Section 2 of the Fourteenth Amendment to deny the franchise to persons with felony convictions.
Whether persons with criminal convictions have the right to vote at all is not at issue in this case. The Twenty-Fourth Amendment, like the analogously worded Fifteenth and Nineteenth Amendments, leave most
currently on appeal. The courts in those cases reached their conclusions by incorrectly presuming that because Richardson permits states to disenfranchise persons with criminal convictions, the State can decide what conditions it will impose before restoring voting rights. Richardson in no way sanctioned the use of wealth to determine which voters with felony convictions may be disenfranchised — or should remain disenfranchised — and which should not. In fact, there was no Twenty-Fourth Amendment claim or allegations of wealth-based voting restrictions before the Richardson Court.
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voter qualifications to the states, but these amendments explicitly prohibit states from denying or abridging the right to vote on the bases of race, sex, or wealth-based conditions, see Williams v. Rhodes, 393 U.S. 23, 29 (U.S. 1968) (“Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections. And the Twenty-fourth Amendment clearly and literally bars any State from imposing a poll tax on the right to vote ‘for electors for President or Vice President.’”). Just as Tennessee could not restore the right to vote of only white persons or males convicted of felonies because that would violate the Fifteenth and Nineteenth Amendments respectively, Tennessee cannot refuse to restore the right to vote on account of wealth-based conditions under the Twenty-Fourth Amendment.
Even the District Court recognized that while Tennessee could refuse altogether to restore the franchise to persons with criminal convictions, it could not offer to restore that right but impose unconstitutional requirements as a condition to qualify for that right. R.85 Sep. 22 Mem., at 7. This wellestablished principle was articulated more than 80 years ago in Frost & Frost Trucking Co. v. R.R. Comm’n, 271 U.S. 583, 593-94 (1926), where the Court stated:
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It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights . . . . It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.
Similarly, in Sherbert v. Verner, 374 U.S. 398, 404 (1963), the Court
rejected the State’s reasoning that because unemployment benefits under a
state law were not a “right” but merely a “privilege,” the State’s denial of
benefits to the Plaintiff could not violate the Constitution. Id. at 404-08.
And in Goldberg v. Kelly, the Court rejected the government’s argument
that because welfare benefits were a “privilege,” the Plaintiff had no
constitutional right to a hearing before such benefits could be terminated.
397 U.S. 254, 262 (1970). The Court concluded, “[t]he constitutional
challenge cannot be answered by an argument that public assistance benefits
are a ‘privilege’ and not a ‘right.’” Id. (quoting Shapiro v. Thompson, 394
U.S. 618, 627 n.6 (1969)).
Similarly, in Georges v. Carney, 546 F.Supp. 469, 471 (N.D. Ill.
1982), aff’d 691 F.2d 297 (7th Cir. 1982), the district court analyzed the
constitutionality of an Illinois statute relating to the submission of citizen-
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initiated advisory questions for consideration by voters through referendum. The Plaintiffs-voters alleged that the process established by the Illinois Legislature for submitting referendum questions — which required such petitions to be signed by 25 percent of the registered voters in the relevant political subdivision — unconstitutionally impeded voters’ ability to submit such questions for consideration. Id. Similar to the disenfranchised Plaintiffs in the instant case, the plaintiffs there did not possess a “fundamental right to require a voter referendum under Illinois law.” Id. at 476. Nevertheless, the court concluded that the 25 percent requirement was unconstitutional because it was “unnecessarily restrictive” and “overburden[ed] the very right which the legislature has created.” Id. at 472, 477. According to the Court, “[o]nce Illinois decided to extend” by statute the right to place a question on the ballot, “it became obligated to do so in a manner consistent with [the] Constitution.” Id. at 477. See also Bynum v. Conn. Comm’n on Forfeited Rights, 410 F.2d 173, 175-76 (2d Cir. 1969) (describing question as whether “once having agreed to permit ex-felons to regain their vote and having established administrative machinery for this purpose, can then deny access to this relief, solely because one is too poor to pay the required fee”).
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The Twenty-Fourth Amendment would plainly bar Tennessee from only permitting persons current in child support obligations to vote in a federal election. Similarly, here, while Tennessee is not required to restore the right to vote to persons with felony convictions, having chosen to do so, it cannot condition a person’s ability to vote on his or her economic status or ability to pay child support arrears and restitution.
The District Court mistakenly reasoned that the conditions of satisfying restitution and child support arrears were constitutional because they satisfied a rational basis test as they were reasonably related to legitimate state interests. R.85 Sep. 22 Mem., at 9 (recounting alternate reasons suggested by State Defendants for the State’s interests). As discussed in Section I, however, the Twenty-Fourth Amendment flatly forbids imposing wealth-based conditions on the right to vote regardless of the State’s interest in imposing them. See supra Section I, pp. 11–12. If the State conditioned the right to vote on paying a tax to buy milk for poor infants, that policy too would serve a rational state interest in protecting poor children, but it would still be forbidden by the Twenty-Fourth Amendment’s bar to wealth-based conditions on the right to vote. Hence, the reasons proffered to justify the Tennessee conditions, similarly do not save the Tennessee statute.
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* * * Simply put, Tennessee may not impose a wealth-based condition on the restoration of the right to vote. As demonstrated above, the conditions imposed in the instant matter amount to an illegal poll tax that is barred by the Twenty-Fourth Amendment. Indeed, even if the conditions imposed by Tennessee were not a tax, as the Plaintiffs-appellants’ brief demonstrates, they are invalid because they increase the criminal penalties for indigent persons by extending the sanction of disenfranchisement solely because they are too poor to pay child support arrears or restitution. See Brief of Plaintiffs-appellants at 20–21, Johnson v. Bredesen, No. 08-6377 (6th Cir. Apr. 14, 2009). Although persons convicted of crimes may be deprived of certain rights, the State may not prolong or amplify those deprivations based solely on the convicted person’s economic status or inability to pay fines. See Bearden v. Georgia, 461 U.S. 660, 671–72 (1983) (holding that the State cannot incarcerate persons convicted of crimes solely because they have outstanding criminal fines without inquiring into whether the failure to pay was because of indigency); Williams v. Illinois, 399 U.S. 235, 241–42 (1970) (holding that after “the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it
29

Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 39
may not then subject . . . defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency”).
The rule that emerges from these cases applies equally here: the Constitution does not permit the State to increase a criminal sanction simply because of an individual’s inability to pay. This Court recognized this principle in United States v. DeMonte, 25 F.3d 343 (6th Cir. 1994). There, a white collar defendant liquidated all of his assets within weeks for the purpose of making restitution. The district court departed from the sentencing guidelines, in part, because the defendant had paid restitution. While ultimately upholding the district court’s departure, the Sixth Circuit rejected the district court’s reasoning which justified departure based on the restitutionary payments, and reversed that portion of the district court’s opinion. The Sixth Circuit held, “[w]e may not sentence a poor convict more harshly than a rich convict simply because the rich convict is better able to make restitution.” Id. at 347. In conclusion, the Court noted that to the extent white collar criminals have more assets, rewarding the use of those assets to make restitution may result in unacceptable “unequal treatment favoring white collar criminals.” Id. at 350.
DeMonte is controlling here. The constitutionally relevant distinction being drawn by the Tennessee statute is not between persons who have
30

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finished their criminal sentences and those who have not, but between those who can pay their restitution and child support arrears and those who are too poor, and therefore, cannot. A similar issue was raised in Madison v. Washington, 161 Wash. 2d 85 (2007). This Court should follow the reasoning of the dissent, which concluded: “[w]ealthy people who are convicted of a felony . . . can regain the right to vote almost immediately” whereas poor persons “without resources may never be able to pay their LFOs”, Madison, 161 Wash. 2d at 122–23 (Alexander, J., dissenting), and therefore may never be able to participate in democracy.
CONCLUSION For the reasons set forth above, Amicus Brennan Center respectfully submits that conditioning the restoration of voting rights of persons with felony convictions on the ability to pay LFOs, namely child support arrears and restitution, is an impermissible poll tax that violates the Twenty-Fourth Amendment. Accordingly, this Court should reverse the decision of the court below.
31

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Dated: April 23, 2009
Erika Wood Myrna Pérez Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Fl. New York, NY 10013 Telephone: (212) 998-6284 Email: myrna.perez@nyu.edu

Respectfully submitted,
/s/ Paul W. Ambrosius Paul W. Ambrosius Trauger & Tuke The Southern Turf Building 222 Fourth Avenue North Nashville, Tennessee 37219 Telephone: (615) 256-8585 E-mail: pambrosius@tntlaw.net

Sidney S. Rosdeitcher Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas, New York, New York 10019 Telephone: (212) 373-3000 E-mail: srosdeitcher@paulweiss.com

Counsel for Amicus

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Case: 08-6377 Document: 00615495511 Filed: 04/23/2009 Page: 42
Certification of Electronic Service I hereby certify that on April 23, 2009, I electronically filed the foregoing Brief with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Paul W. Ambrosius Paul W. Ambrosius Trauger & Tuke The Southern Turf Building 222 Fourth Avenue North Nashville, Tennessee 37219 Telephone: (615) 256-8585 Facsimile: (615) 256-7444 E-mail: pambrosius@tntlaw.net
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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)
I certify that: 1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 6,090 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using MS Word 2003 in 14 point Times New Roman.
DATED this 23th day of April, 2009.
/s/ Paul W. Ambrosius Paul W. Ambrosius Trauger & Tuke The Southern Turf Building 222 Fourth Avenue North Nashville, Tennessee 37219 Telephone: (615) 256-8585 Facsimile: (615) 256-7444 E-mail: pambrosius@tntlaw.net
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 Case: 08-6377 Document: 006110772987 Filed: 10/28/2010 Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 10a0335p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

TERRENCE JOHNSON, JIM HARRIS, JOSHUA ROBERTS,
Plaintiffs-Appellants,

;   



v.

>



PHIL BREDESEN, Governor of the State of Tennessee; BROOK THOMPSON, Coordinator

  

of Elections; RILEY DARNELL, Secretary of



State of Tennesee; RICHARD HOLDEN,



Administrator of Elections for Shelby County; KIM BUCKLEY, Administrator of

  

Elections for Madison County; RAY



BARRETT, Administrator of Elections for



Davidson County, in their official capacities, Defendants-Appellees.

  

1

No. 08-6377

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 08-00187—Juliet E. Griffin, Magistrate Judge.

Decided and Filed: October 28, 2010 Before: MOORE and COOK, Circuit Judges; LUDINGTON, District Judge.*

_________________

COUNSEL
ON BRIEF: Nancy G. Abudu, Laughlin McDonald, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., Atlanta, Georgia, Tricia Herzfeld, AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE, Nashville, Tennessee, for Appellants. Janet M. Kleinfelter, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, James I. Pentecost, Jon A. York, PENTECOST & GLENN, PLLC, Jackson, Tennessee, John L. Ryder, HARRIS SHELTON HANOVER WALSH, PLLC, Memphis, Tennessee, Danny Presley, OFFICE OF THE SHELBY COUNTY ATTORNEY, Memphis, Tennessee, for Appellees.

*The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of Michigan, sitting by designation.
1

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COOK, J., delivered the opinion of the court, in which LUDINGTON, D. J., joined. MOORE, J. (pp. 17–55), delivered a separate dissenting opinion.
_________________
OPINION _________________
COOK, Circuit Judge. Plaintiffs Terrence Johnson, Jim Harris, and Joshua Roberts1—all Tennessee residents and convicted felons—filed a complaint alleging that, by conditioning restoration of their voting rights on pa yment of court-ordered victim restitution and child support obligations, Tennessee’s voter re-enfranchisement statute violates the Equal Protection Clause of the United States Constitut ion, the TwentyFourth Amendment, and the Ex Post Facto and Privileges or Immunities Clauses of the United States and Tennessee Constitutions. In a well-reasoned decision, the district court granted Defendants’ motion for judgment on the pleadings, and Plaintiffs appealed. Finding no error, we affirm.
I.
All three plaintiffs reside in various Tennessee counties: Johnson in She lby County, Harris in Madison County, and Roberts in Davidson County. A jury convicted Johnson of wire fraud in 1999, and the court sentenced him to a term of imprisonment and ordered him to pay $40,000 in restitution. He com pleted his prison term , but remains unable to satisfy the restitution order. In addition, he owes a significant aomunt (more than $1,000) in overdue child support paym ents. Sim ilarly, multiple felony convictions yielded prison sentences for Harris and Roberts, both of whom owed pastdue child support obligations ($2,500 and $7,000, respectively) at the time they filed the complaint. Like Johnson, Harris and Robertsserved their prison terms and are no longer on probation. Ha rris has since paid his overdue child support, and thus faces no
1As originally filed, the lawsuit’s third plaintiff was an individual named Alexander Friedmann, who raised an additional due process claim pertinent only to himself. With the district court’s approval, the plaintiffs amended the complaint to add Joshua Roberts as a fourth plaintiff. Friedmann eventually settled his dispute, but plaintiffs’ counsel inadvertently included him(and excluded Roberts) in the notice of appeal. Counsel sought to correct this error by m oving to dismiss Friedmann from this appeal and substitute Roberts. Defendants consent to this correction, and we now grant the motion.

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impediment to applying for re-enfranchisement. He continues, however, to press a claim for nominal damages on account of any past constitutional harm.

The State of Tennessee, like many others, disenfranchises convicted felons, but provides them with a statutory procedure for regaining the franchise upon completion of their sentences and satisfaction of certain conditions. The re-enfranchisement statute at issue, Tennessee Code § 40-29-202, restores felons’ eligibility “to apply for a voter registration card and have the right of suffrage restored” upon receipt of a pardon, discharge from custody after serving the maximum sentence imposed, or final discharge by the relevant county, state, or federal authority. The statute, however, carves out two exceptions to re-enfranchisement eligibility. It provides that:

(b) . . . a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has pai d all restitution to the victim or victims of the offense ordered by the court as part of the sentence[, and]
(c) . . . a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person is current in all child support obligations.

Tenn. Code Ann. § 40- 29-202(b)–(c). The Tennessee legislature added these two

conditions in 2006; before that, felons could apply for re-enfranchisem

ent

notwithstanding any outstanding restitution or child support obligations.

Having completed their prison and probation term s, Plaintiffs claim that they desire to vote in upcom ing elections but rem ain ineligible to do so because of their unpaid restitution and child support obligations. They sued Defendants in the Middle District of Tennessee, challenging the constitutionality of the re-enfranchisem ent statute’s restitution and child support provisions. Defendants sought judgment on the pleadings under Federal Rule of Civil Procedure 12(c), which the district court granted,

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finding that Plaintiffs’ constitutional challenges lacked m erit. Plaintiffs tim ely appealed.2
II.
On appeal, Plaintiffs cl aim that the district court erred in rejecting their challenges under the United States and Tennessee Constitutions. We review the district court’s grant of a Rule 12(c) motion for judgment on the pleadings using the same de novo standard applicable to a motion to dismiss under Rule 12(b)(6). Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 389 (6th Cir. 2007). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the m oving party is ne vertheless clearly entitled to judgm ent.” Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008) (quotingJPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)).
A. Equal Protection
The Fourteenth Amendment provides that no st ate shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause prevents states from making distinctions that (1) burden a fundamental right; (2) target a suspec t class; or (3) intentionally treat one individual differently from others similarly situated without any rational basis. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). Plaintiffs argue that the district court erred by testing their equal protection challenge using the rational basis test, rather than strict scrutiny, because the re-enfranchisem ent statute: (1) burdens their fundamental right to vote; and (2) improperly discriminates against the indigent.

2Plaintiffs filed a m otion asking this court to judicially notice two sets of responses to interrogatories. We fail to see ho w either document fits within Federal Rule of Evidence 201, which permits judicial notice of an adjudicative fact so long as it is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 476 (6th Cir. 2008) (quoting Fed. R. Evid. 201(b)).Accordingly, we deny the motion. We note, however, that even if con sidered, these documents would not affect our resolution of the merits.

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Plaintiffs’ arguments miss the mark. The state m ay, within the bounds of t he Constitution, strip convicted felons of their voting rights. Richardson v. Ramirez , 418 U.S. 24, 54 (1974). Having lost their voting rights, Plaintiffs lack any fundamental interest to assert. See Wesley v. Collins , 791 F.2d 1255, 1261 (6th Cir. 1986) (“It is undisputed that a state may constitutionally disenfranchise convicted felons, and that the right of felons to vote is not fundam ental.” (citations omitted)). And contrary to Plaintiffs’ other contention, wealth-based classifications do not discriminate against a suspect class. See Papasan v. Allain , 478 U.S. 265, 283–84 (1986); Maher v. Roe, 432 U.S. 464, 470–71 (1977). Accordingly, because Tennessee’s re-enfranchisem ent law neither implicates a fundamental right nor targets a suspect class, the district court properly applied rational basis review, not strict scrutiny, to Plaintiffs’ equal protection challenge. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973).
To survive rational basis scrutiny, the statute need only be “rationally related to legitimate government interests,” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 501 (6th Cir. 2007) (internal quotation m arks and citation om itted), and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,”FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). “[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council , 485 U.S. 568, 575 (1988) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). Where rational basis review governs, we will not strike down a statute on equal protection grounds “unless the varying treatm ent of different groups or persons is so unrelated to the achievem ent of any combination of legitimate purposes that we can only concl ude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “A ‘plaintiff may demonstrate that the governm ent action lac ks a rational basis . . . either by negativing every conceivable basis which might support the government action, or by demonstrating that the challenged government action was motivated by animus or ill-will.’” Club Italia Soccer & Sports Org. v. Charter Twp. of Shelby, Mich. , 470 F.3d 286, 298 (6th Cir.

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2006) (alteration in original) (quoting Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir. 2005)).
Defendants assert that the restitution and child-support-payment provisions in the re-enfranchisement statute advance legitimate interests of the state: protecting the ballot box from convicted felons who continue to break the law by failing to copmly with court orders, encouraging payment of child support, and requiring felons to com plete their entire sentences, including paying victim restitution. We find that the state’s interests of encouraging paym ent of child support and compliance with court orders, and requiring felons to complete their entire sentences, including paying victim restitution, supply a rational basis for the challenged statutory provisions sufficient to pass constitutional muster. Certainly, Tennessee possesses valid interests in prom oting payment of child support, requiring criminals to fulfill their sentences, and encouraging compliance with court orders. See Jones v. Helms, 452 U.S. 412, 423 (1981) (“There can be no question about the legitimacy of the purpose to cause parents to support their children.”); Carter v. Lynch, 429 F.2d 154, 157–58 (4th Cir. 1970) (upholding state civil arrest and release statutes as legitim ate legislative functions “well within the State’s power to secure enforcement of the judgments of its courts”); Blackhawk Mining Co. v. Andrus, 711 F.2d 753, 757–58 (6th Cir. 1983) (upholding statute requiring prepayment of proposed penalty assessments against due process challenge where government had legitimate interest in preventing collection problems and ensuring compliance with the law). The challenged provisions in the re-enfranchisement law bear, at a minimum, a direct and rational relationship to the advancem ent of those interests, and therefore withstand rational basis scrutiny.
Although Plaintiffs, who urge the cour t to apply strict scrutiny, fail to satisfy their burden of negating any conceivable rational basis for the restitution and child support provisions, Michael v. Ghee, 498 F.3d 372, 379 (6th Cir. 2007), the dissent formulates new rational basis arguments in an attempt to carry this burden for them. The dissent’s efforts similarly fail.

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The dissent agrees that rational basis review governs, but

insists that

§ 40-29-202(b)–(c) cannot survive constitutiona l scrutiny even under this highly

deferential standard. The dissent argues that “preconditioning suffra ge on a payment

that a person is unable to make is [not] in any rational way related to the government’s

interest in promoting that payment.” Dissent at 20. But the statute is not aim ed at

encouraging the collection of payments from indigent felons, but from all felons. The

legislature may have been concerned, for instance, that a specific exemption for indigent

felons would provide an incentive to conceal assets and would result in the state being

unable to c ompel payments from some non-indigent felons. That the state used a

shotgun instead of a rifle to accomplish its legitimate end is of no moment under rational

basis review. See E. Brooks Books, Inc. v. Shelby County, Tenn,.588 F.3d 360, 364 (6th

Cir. 2009) (“[A] law will be sustained if it can be said to advance a legitim ate

government interest, even if the law seem s unwise or works to the disadvantage of a

particular group, or if the rationale for it seem s tenuous.” (alternation in original)

(quoting Romer v. Evans, 517 U.S. 620, 632 (1996))). While the dissent would prefer

that the state not discriminate on the basis of wealth when providing statutory benefits,

this is an argument that must be resolved by the legislature, not this Court.

Resisting this traditional rational basis analysis, the dissent cites Zablocki v. Redhail, 434 U.S. 374, 389 (1978), andBearden v. Georgia, 461 U.S. 660, 662 (1983), two cases where “the Supreme Court . . . rejected a similar ‘collection device rationale.’” Dissent at 20. Both cases are distinguishable.

In Zablocki, which concerned the fundamental right to marry, the Court applied strict scrutiny to strike down a state statute conditioning the ability to m arry on the payment of child support obligations. Although Zablocki found the state’s asse rted interest in encouraging child support payments legitimate, it found that the statute was not “closely tailored to effectuate only [that] inte rest[],” Zablocki, 434 U.S. at 388, in light of the existence of “num erous other means for exacting com pliance with . . . obligations,” id. at 389. The dissent rightly notes that here, likeZablocki, other means (indeed, perhaps better m eans) exist for collecting restitution and child support

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payments. But whereas strict scrutiny guided the Court’s analysis inZablocki, rational basis guides our review. Ultimately, this standard proves determinative because “[t]he fact that other means are better suited to the achievement of governmental ends . . . is of no moment under rational basis review.” Tuan Anh Nguyen v. INS , 533 U.S. 53, 77 (2001).
Like Zablocki, Bearden v. Georgia also proves inapposite due to its heightened standard of review. I n Bearden, the Court held that Georgia could not revoke an individual’s probation for failure to pay a fine or restitution absent evidence and findings that he was somehow responsible for the failure. The revocation of probation at issue in Bearden implicated physical liberty and eff ectively “turned a fine into a prison sentence.” Bearden, 461 U.S. at 674. Although t he parties “debate[d] vigorously whether strict scrutiny or rational basis [was] the appropriate standard of review,”id. at 665, the Court m aintained that in that instan ce the issue could not be resolved by “pigeonhole analysis,” but rather required “a careful i nquiry into such factors as the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative m eans and purpose, [and] the existence of alternative means for effectuating the purpose,” id. at 666–67 (alteration in original) (quotation marks and citation omitted). Tennessee’s re-enfranchisement conditions, by contrast, merely relate to the restoration ofa civil right to which Plaintiffs have no legal claim, and invoke only rational basis review.See Madison v. Washington, 163 P.3d 757, 770 (Wash. 2007) (distinguishing Bearden and upholding, under rational basis review, a statute conditioning re-enfranchi sement on com pletion of all term s of felons’ sentences, including full payment of their financial legal obligations). With its differing standard of review, Bearden bears little on our analysis here.
Likewise inapposite are Griffin v. Illinois , 351 U.S. 12 (1956), Williams v. Illinois, 399 U.S. 235 (1970), and James v. Strange, 407 U.S. 128 (1972), three cases from the 1950s and 1970s that the dissent finds instructive regarding “the propriety of wealth-based distinctions.” Dissent at 25. Each of these cases concerned fundamental interests subject to heightened scrutiny. Though the Griffin Court declined to specify

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its review standard, its analysis focused on the importance of the right of access to the courts. See Griffin, 351 U.S. at 19 (“Thus to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside.”);Robinson v. Bd. of Regents, 475 F.2d 707, 710 (6th Cir. 1973) (explaining how the existence of a fundam ental right “triggered the application of [strict scrutiny]” in Griffin). And while the Williams Court similarly failed to articulate a precise standard of review, the fact that the case involved the denial of an indigent defendant’s physical liberty appeared dispositive.See Williams, 399 U.S. at 262–63 (Harlan, J., concur ring) (“[T]he presumption of regularity that com es with legislative judgment is one that is not equally acceptable in all instances, nor is it blind to the nature of the interest affected. . . . [T]his Court will squint hard at any legislation that deprives an individual of his liberty—his right to remain free.”). Indeed, Williams held only that “a State may not constitutionally imprison beyond the maximum duration fixed by statute a defe ndant who is financially unable to pay a fine,” without even reaching “the question whether a State i s precluded in any other circum stances from holding an indigent accountable for a fine by use of a penal sanction.” Williams, 399 U.S. at 243–44. And thoughStrange’s text appeared to apply rational basis review, the Court, concerned about discriminatory garnishment of the wages with which a debtor “supports himself and his family,” found that the admittedly “legitimate” interests of the state paled in com parison to “the hopes of i ndigents for self-sufficiency and selfrespect.” Strange, 407 U.S. at 135, 141–42;see also Olson v. James, 603 F.2d 150, 154 (10th Cir. 1979) (“[I]t was thefailure of the statute to protect the wages and the intimate personal property of the defendant from seizure and its conseque nt discouraging of independence and self-sufficiency . . . that brought the Court to the conclusion that the provisions constituted a violation of the equal protection clause.”). Plaintiffs here assert no comparable interest triggering a heightened standard of review, but, instead, the emre “statutory benefit” of re-enfranchisement. Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010).
Over the years, the Court has propounded inconsistent iterations of the rational basis standard. In United States Railroad Retirement Board v. Fri tz, the Court

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acknowledged its usage of different rational basis formulations, referencing a collection

of cases—including Strange—and noting that even “[t]he most arrogant legal scholar

would not claim that all of these cases applied a uniform or consistent test under equal

protection principles.” 449 U.S. 166, 177 n.10 (1980). We believe that our application

of the test aligns with this Circuit’s and the Supr

eme Court’s m ost recent

pronouncements on the rationality standard, namely, that a “law will be sustained if it

can be said to advance a legitimate government interest, even if the law seems unwise

or works to the di sadvantage of a particular group, or if the rationale for it seem s

tenuous.” E. Brooks Books, Inc. v. Shelby County, 588 F.3d 360, 364 (6th Cir. 2009) (quoting Romer v. Evans, 517 U.S. 620, 632 (1996)).3 Our application also aligns with

various courts’ applications of rational basis review to laws premising the restoration of

the right to vote upon felons’ completion of certain conditions. See, e.g., Harvey, 605

F.3d 1067; Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010);Owens v. Barnes, 711 F.2d

25 (3d Cir. 1983); Madison, 163 P.3d 757. For exam ple, in Hayden v. Paterson, the

Second Circuit, though recognizing that “there remains some oddity in the laws in that

those who have finished their prison terms, but are still on parole, are denied the right

to vote while those with suspended sentences are not,” denied the plaintiffs’ equal

protection challenge because “rational basis review allows legislatures to act

incrementally and to pass laws that are over (and under) inclusive without violating the

Fourteenth Amendment.” 594 F.3d at 171.

Finally, the dissent advances an “additional reason” why it finds § 40-29-202(c) “constitutionally suspect,” Dissent at 29, nam ely, that the child-support-paym ent condition fails to relate directly to the state’s reason for st ripping individuals of the franchise in the first place—i.e., the underlying felony conviction. The dissent culls this direct-relationship constitutional requirement from Richardson v. Ramirez and Hunter

3It is worth noting that Tennessee courts expr essly take into account “ability to pay” when calculating restitution and child support awards. Tenn. Code Ann. § 40-35-304(d) (“In determining the amount and method of payment or other restitution, the court shall consider the financial resources and future ability of the defendant to pay or perform.”); Ford v. Ford, No. 01A01-9611-CV-00536, 1998 WL 730201, at *2 (Tenn. Ct. App. Oct. 21, 1998) (“Tennessee’s child support guidelines establish a rebuttable presumption of a minimum acceptable amount of support based on the noncustodial parent’s ability to pay.”).

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v. Underwood, 471 U.S. 222 (1985). ButRichardson and Hunter instruct that the state’s authority to disenfranchise derives from an individual’s com mission of a qualifying crime and do not, as the dissent suggests, speak to franchise return. Richardson, 418 U.S. at 54;Hunter, 471 U.S. at 233. Rather, well-settled equal protection principles provide that the statutory re-enfranchisement conditions need only further a legitimate government interest—not a legitimate government interest specifically tied to the state’s authority for the initial disenfranchisem ent. Vance, 440 U.S. at 97 (f inding that legislature’s actions must qualify as irrational to fail rational basis review).
B. Twenty-Fourth Amendment
The Twenty-Fourth Amendment proscribes any denial or abridgem ent of the right to vote for “failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV. Passed in 1962 and ratified two years later, the Twenty-Fourth Am endment exists to combat the “disenfranchisement of the poor . . . .”Harman v. Forssenius, 380 U.S. 528, 539 (1965). Plaintiffs claim that the restitution and child-support-payment provisions amount to unlawful poll taxes because theycondition the restoration of voting rights on monetary payments Plaintiffs are unable to m ake. This argum ent fails for several reasons.
First, and most fundamentally, the re-enfranchisement law at issue does not deny or abridge any rights; it only restores them. As convicted felons constitutionally stripped of their voting rights by virtue of their convictions, Plaintiffs possess no right to vot e and, consequently, have no cognizable Twenty-Fourth Amendment claim. Harvey, 605 F.3d at 1080. The challenged provisions do not disenfranchise themor anyone else, poor or otherwise; Tennessee’s indisputably constitutional disenfranchisem ent statute accomplished that. See Richardson, 418 U.S. at 54. The re-enfranchisement law does not condition the right to vote on paym ent of restitution or child support, but instead conditions the restoration of a felon’s right to vote on such payment—a state regulatory arrangement the Twenty-Fourth Amendment says nothing about. See Harvey, 605 F.3d at 1080 (affirm ing dismissal of claim by disenfranchised felons that Arizona’s disenfranchisement scheme violated the Twenty-Fourth Am endment by requiring the

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payment of any fine or restitution before restoration of voting rights); Howard v. Gilmore, No. 99-2285, 2000 W L 203984, at *2 (4th Cir. Feb. 23, 2000) (per curia m) (affirming dismissal of claim by disenfranchised felon t hat $10 fee for initiating restoration of civil rights, including voting, constituted an unconstitutional poll t ax in violation of the Twenty-Fourth Amendment because “it is not his right to vote upon which payment of a fee is being conditioned; rtaher, it is the restoration of his civil rights upon which the payment of a fee is being conditioned”).
Second, even if the Twenty-Fourth Am endment applied to Tennessee’s reenfranchisement law, the provisions requiring payment of restitution and child support do not represent taxes on voting imposed by the state, and therefore do not violate the Amendment’s terms. See Coronado v. Napolitano, No. CV-07-1089-PHX-SMM, 2008 WL 191987, at *5 (D. Ariz. Jan. 22, 2008) (rejecting Twenty-Fourth Am endment challenge to restitution payment requirement). Unlike poll taxes, restitution and child support represent legal financial obligations Plaintiffs themselves incurred. See Harvey, 605 F.3d at 1080 (“That restoration of [disenfranchised felons’] voting rights requires them to pay all debts owed under their crim inal sentences does not transform their criminal fines into poll taxes.”). By exercising its “power to fix qualifications,H” arper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966), Tennessee permissibly limits the vote to individuals without felony convictions,Richardson, 418 U.S. at 56, and lawfully conditions the restoration of vot ing rights on satisfaction of such court-ordered obligations that exist independently of the r e-enfranchisement statute or any tax law violations. Thus, even if the Twent y-Fourth Amendment applies, Tennessee’s reenfranchisement statute does not violate it because the restitution and child-supportpayment provisions fail to qualify as the sort of taxes the Amendment seeks to prohibit.
C. Privileges or Immunities
Largely dormant since the Suprem e Court’s decision in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872), significantly restricted its reach,see Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002), the Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from abridging the privileges or immunities of

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national citizenship. U.S. Const. am end. XIV, § 1. As the district court correctly observed, no authority recognizes the right to vote in federal elections as a privilege or immunity of United States citizenship. Indeed, dicta in several historical SupreemCourt cases suggest the opposite. See Minor v. Happerse tt, 88 U.S. (21 W all.) 162, 178 (1874); Pope v. Williams, 193 U.S. 621, 632 (1904),amended by Dunn v. Blumstein, 405 U.S. 330, 337 n.7 (1972). But in any event, even if voting qua lifies as a privilege or immunity of citizenship, Plaintiffs fail to state a claim because, under the Suprem e Court’s holding in Richardson, the Constitution authorizes the complete abrogation of felons’ voting rights. 418 U.S. at 56. Accordingly, we find that the district court correctly rejected Plaintiffs’ privileges or immunities argument because adopting it would require the absurd holding that § 1 of the Fourteenth Amendment proscribes the very same practice the Supreme Court expressly deemed permissible under § 2 of that same amendment.
D. Tennessee Ex Post Facto
In the district court, Plaintiffs c hallenged the restitution and child-supportpayment provisions under the Ex Post Facto Clauses of both the U.S. and Tennessee Constitutions, which prohibit the enactment of any law that imposes punishment for an act after its commission, or imposes additional punishment to that previously prescribed. Weaver v. Graham, 450 U.S. 24, 28 (1981); U.S. Const. art. I, § 10; Tenn. Const. art. I, § 11. The district court rejected both claims, and Plaintiffs appeal only the rejection of their Tennessee constitutional claim.
Analysis of ex post facto claim s involves a two-part inquiry. First , we ask whether the challenged law constitutes a civilr,egulatory measure, or, instead, a punitive one. Smith v. Doe , 538 U.S. 84, 92 (2003). To answer this question, we look to “whether the legislature, in establishing the penalizing m echanism, indicated either expressly or impliedly a preference for one label or the other.”Hudson v. United States, 522 U.S. 93, 99 (1997) (internal quotation m arks and citation omitted). If we answer “punitive,” then the inquiry ends with a determination that the law violates the Ex Post Facto Clause. See Smith, 538 U.S. at 92–93. Second, even if the legislature intended to

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classify the law as civil, we still must ask whether “the statutory scheme was so punitive either in purpose or effect as to negate that intention.” United States v. Ward, 448 U.S. 242, 248–49 (1980). The non-exclusive and non-dispositive seven-factor anal ysis developed in Kennedy v. Mendoza-Martinez, guides this inquiry. 372 U.S. 144, 168–69 (1963). “‘[O]nly the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson, 522 U.S. at 100 (quoting Ward, 448 U.S. at 249).
When it enacted § 40-29-202(b)–(c), the Tennessee legislature did not explicitly disclose either a civil or punitive inte ntion. Although it situated the challenged provisions in the “Crim inal Procedure” volume of the Tennessee Code, the specific chapter bears the title “Restoration of Citizenship,” which serves a civil, non-punitive purpose—namely, regulating the process through which felons may regain the right to vote. Indeed, the law’s statutory neighbor, § 40-29-203, also in the “Restoration of Citizenship” chapter, establishes a procedurefor a felon’s application for and the state’s issuance of avoter registration card—a process obviously unrelated to punishment. That the legislature chose to put § 40-29-202 in the “Criminal Procedure” title makes it no more punitive than other chap ters found in the sam e title, such as chapter 14, which establishes procedures for the appointment of counsel for indigents; chapter 27, which covers procedures for pardons; or chapter 30, which entit les convicts to request DNA analysis of evidence. In other words, although the statute here, like others located in the “Criminal Procedure” title, relates to the crim inal justice system , its purpose m ay nevertheless be non-punitive. Finding no evidence that the l egislature enacted the challenged provisions with punitive intentions, we turn to the second part of the ex post facto inquiry: examining whether the statute’s purpose or effect negated the legislature’s non-punitive intentions.
Our examination—using the applicable Mendoza-Martinez factors—finds no contradiction of the legislative non-punitive intent in the statute’s purpose or effect. Nothing in the record suggests a historically punitive characterization of reenfranchisement schemes; indeed, Plaintiffsfail to cite a case supporting such treatment.

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Nor does the statute promote the traditional aims of punishment, since it only restores rights originally stripped by the disenfranchisem ent statute. Significantly, Tennessee child support law, which conditions payment on the payor’s ability to earn a living so as to avoid imposing a penal obligation, exists t o protect children; and restitution payments aim to restore crime victims to the position they would have been in had the crime not occurred—not to punish the pe rpetrator. Moreover, the law resists classification as one imposing an affirm ative disability—if Plaintiffs suffer from an affirmative disability, the disenfranchisem ent statute m ust take the blam e. And, as discussed in the equal protection analysis, the restitution and child-support-paym ent provisions bear a rational connection to legitimate non-punitive interests of the state, and are not excessive with regard to those purposes. See Mendoza-Martinez, 372 U.S. at 168–69 (discussing factors).
Moreover, in Trop v. Dulles , the Supr eme Court expressly stated that felon disenfranchisement laws serve a regulatory, non-penal purpose. 356 U.S. 86, 96–97 (1958). Accordingly, as a m atter of federal law, disenfranchisement statutes do not violate the Ex Post Facto Clause of the U.S. Constitution. It necessarily follows that, if the laws that strip convicted f elons of their voting rights in the f irst instance fail to qualify as punitive, then those that subject restoration to the fulfillm ent of certain conditions do not either. Like the Supreme Court’s disenfranchisement example in Trop, Tennessee’s re-enfranchisement statute serves “to designate a reasonable ground of eligibility for voting,” and thus qualifies “as a nonpenal exercise of the power to regulate the franchise.” See id. Plaintiffs raise no challenge to this analysis; in fact, they declined to appeal the district court’s ruling on their federal ex post facto claim. They argue, however, that the re-enfranchisem ent law deserves precisely the opposite treatment under Tennessee’s Ex Post Facto Clause because the Tennessee Suprem e Court recently held that “[l]aws disenfranchising convicted felons are penal in nature.” May v. Carlton, 245 S.W.3d 340, 349 (Tenn. 2008); see also Gaskin v. Collins , 661 S.W.2d 865, 868 (Tenn. 1983).

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Plaintiffs mistakenly rely on May. May held that for purposes of Tennes see’s habeas corpus statute, i llegal disenfranchisement is a “restraint on liberty.” May, 245 S.W.3d at 342 (inte rnal quotation m arks omitted). The court then granted the petitioner relief under Tennessee’s habeas corpus statute because the law a t issue retroactively labeled petitioner’s crim e “infamous” and thereby disenfranchised him—which is im permissible under Tennessee law. Id. at 349 (citing Gaskin, 661 S.W.2d at 867). Other than citing Gaskin, May does not explain why this result is impermissible. See id. Gaskin, however, did not hol d that laws retroactively disenfranchising felons are impermissible because they violate the Ex Post Facto Clause (Article I, Section 11) of the Tennessee Constitution. Rather,Gaskin held such laws to be impermissible because they violate Article I, Section 5 of the Tennessee Constitution, a section specifically related to elections and prompted by Tennessee’s civil war history. Gaskin, 661 S.W.2d at 866–68. To be sure, theMay petitioner argued laws retroactively disenfranchising felons violate Tennessee’s Ex Post Facto Clause (in addition to Article I, Section 5). See May, 245 S.W.3d at 342. Yet, this is not the holding of May or Gaskin. Gaskin therefore provides no support for May’s observation that “[ l]aws disenfranchising convicted felons are penal in nature.” May, 245 S.W .3d at 349. Neither is the “penal in nature” statement supported by other law or logic in the opinion. The “penal in nature” statement is pure dicta, insufficient to compel the conclusion that either laws retroactively disenfranchising felonsor laws regulating re-enfranchisement violate the Ex Post Facto Clause of the Tennessee Constitution.
III.
For these reasons, we affirm.

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_________________
DISSENT _________________
KAREN NELSON MOORE, Circuit Judge, dissenting. A state under current law may curtail a felon’s right to vote, or ev en forever deny it, but once a state enacts a process by which a felon m ay regain suffrage , that process m ust comport with the demands of the Constitution. Contrary to the majority’s conclusion, I would hold that Tennessee Code § 40-29-202(b) and (c) violate the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution. I further believe that the Plaintiffs have alleged sufficient factual matter to state a claimfor relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper. For the following reasons, I must respectfully dissent.
Tennessee Code § 2-19-143 and § 40-20-112 disnefranchise all persons who have been convicted of “infamous” crimes, i.e., felonies. Those felons denied the right to vote are “eligible to apply for a voter registration card and have the right of suffrage restored” if they receive a pardon, are discharge d from custody after serving the m aximum sentence imposed, or are granted a final discharge from supervision by the relevant county, state, or federal authority. Tenn. Code Ann. § 40-29-202(a)(1)–(3) (2006). Notwithstanding this provision, however, there a re two pecuniary preconditions to reenfranchisement: “[A] person shall not be leigible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence,i”d. § 40-29202(b), and “unless the person is current in all child support obligations,” id. § 40-29202(c). Prior to 2006, felons adjudged to have comitted infamous crimes were eligible to vote upon the com pletion of their sentences despite any outstanding financial obligations.
In the inst ant case, the Plaintiffs are individuals who have com pleted the imprisonment associated with the felonies for which the State was authorized to abridge their right to vote. Yet because of their inability to pay outstanding restitution and/or

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child-support arrears, the State continues to deny them the right of suffrage to which they otherwise would be entitled automatically were the law the same now as it was at the time of their convictions and initial disenfranchisement. It is indisputable that the Plaintiffs are now unable to access the ballot box simply because they are too poor to pay.
I.
A. Equal-Protection Claim
The Equal Protection Clause of the Fourteenth Amendment prohibits states from making distinctions that “burden a fundam ental right, target a suspect class, or intentionally treat one differently from others similarly situated without any rationa l basis for the difference.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). The precise level of scrutiny that a court will provide a challenged provision “depend[s] upon the interest affected or the classification involved.”Dunn v. Blumstein, 405 U.S. 330, 335 (1972) . Those laws that burden a fundam ental right or target a suspect class will be “subject to strict scrutiny, and will be upheld only whe n they are narrowly tailored to a compelling governmental interest.” Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (internal quotation marks omitted). A law that “neither burdens a fundamental right nor targets a suspect class” m ust “bear[] a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). “[T]he Equal Protection Clause is satisfied as long as there is a plausible policy reason for the classification . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (internal citations omitted); see City of Cleburne, Tex.v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) (“The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”).
I agree with the majority as to some components of its equal-protection analysis. I agree that the Plaintiffs in this case have no fundamental right to vote under existing case law. See Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (citing, am ong

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other cases, Richardson v. Ramirez , 418 U.S. 24, 26 ( 1974)). I also agree that the Plaintiffs’ membership in “a class of less wealthy individuals is not a suspect class” under prevailing precedent. Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 660 (6th Cir. 2008) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973)). Given these two conclusions, I m ust also agree that, because the Tennessee provisions neither burden a fundamental right nor discriminate against a suspect class, the Plaintiffs bear the burden to show that § 40-29-202(b) and (c) bea r no r ational relationship to any legitimate government end. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993).
Where my agreement with the majority ends, however, is with its conclusion that the Tennessee provision requiring full payment of all outstanding child-support arrears prior to the restoration of suffrage—regardless of whether the individual is able to pay—satisfies this rational-basis inquiry. Although “[o]nly a handful of provisions have been invalidated for failing rational basis re view,” Craigmiles v. Giles, 312 F.3d 220, 225 (6th Cir. 2002), the absence of any policy j ustification for the distinction in the instant case, as well as Supreme Court precedent addressing the propriety of provisions that discriminate on the basis of wealth, compel the conclusion that this is one of those instances. Simply put, Tennessee has no rational basis for denying voting rights to only those felons with outstanding financial obligations, despite their inability to pay.
1. Section 40-29-202(b) and (c) Are Not Rationally Related to Any Legitimate Interest
The statutory provisions at issue in the instant case, § 40-29-202(b) and (c), preclude individuals, like the Plaintiffs, who are unable to satisfy all outstanding restitution orders and child-support arrears from regaining the franchise. The majority credits Tennessee’s purported justifications for the provision, specifically concluding that § 40-29-202(b) and (c) are constitutionally sound because Tennessee has a legitimate interest in “encouraging payment of child support,” “encouraging compliance with court orders,” “protecting the ballot box from convicted felons who cont inue to break the law by failing to comply with court orders,” and “requiring felons to complete” the financial obligations associated with their sentences. Maj. Op. at 6. I cannot agree

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that the provision restoring the franchise to only those felons who are affluent enough to satisfy their child-support arrears is rationally relat ed to a legitimate government objective, and I believe that no policy reasonsupports the distinction in the instant case.
With respect to the first two policy justifications set forth by the m ajority, although Tennessee may seek to encourage the payment of child support, the payment of restitution, and com pliance with c ourt orders by conditioning the restoration of suffrage on the respective paym ents, this explanation fails to consider that § 40-29202(b) and (c) are not r estricted to just those persons who are unwilling to pay their arrears or restitution or comply with their court orders; instead, it includes individuals like the Plaintiffs who are simply unable to do so. Even acknowledging that Tennessee’s proffered justifications for the law implicate legitimate state interests, I fail to see how preconditioning suffrage on a payment that a person is unable to make is in any rational way related to the government’s interest in promoting that payment.
In fact, the Supreme Court has rejected a similar “collection device rationale” on at least two occasions. In Zablocki v. Redhail, for example, the Court confronted the constitutionality of a statute that required an applicant for a m arriage license who had children from a previous relationship to “ show[] that he ha[d] satisfied his courtdetermined support obligations to the priorchildren and that those children [would] not become public charges.” Zablocki v. Redhail , 434 U.S. 374, 389 (1978). At oral argument, the State in Zablocki suggested that the statute was justified because it “provide[d] [an] incentive for the applicant to make support payments to his children.” Id. The Court, however, rejec ted this rationale, stated that it could not “justify the statute’s broad infringement on the right to marry” and emphasized that “with respect to individuals who a re unable to meet the statutory requirem ents, the statute m erely prevents the applicant fromgetting married, without delivering any money at all into the hands of the applicant’s prior children.” Id. (emphasis added).
Similarly, in Bearden v. Georgia , the Supr eme Court held that the State of Georgia was not entitled to revoke automatically an individual’s probation because of the failure to pay the fines and restitution associated with the sentence without some

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determination that the individual had not m ade bona fide efforts to pay. Bearden v. Georgia, 461 U.S. 660, 662 (1983). The Court rejected the State’s claimthat “revoking probation further[ed] its interest in ensuring that restitution be paid to the victim s of crime” on the grounds that “[r]evoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming.” Id. at 670; see id. (“A rule that imprisonment may befall the probationer who fails to make sufficient bona fide efforts to pay restitution may indeed spur probationers to try hard to pay, thereby increasing the num ber of probationers who m ake restitution.” (emphasis added)). Similarly, the Tennessee statute here is “ludicrously ineffectual” at encouraging the payment of child-support arrears as it m akes no accommodation for individuals like the Plaintiffs who sim ply cannot pay despi te a willingness to do so. Plyler v. Doe, 457 U.S. 202, 228 (1982) (internal quotation marks omitted).
Moreover,“[t]he Supreme Court, em ploying rational basis review, has been suspicious of a legislature’s circuitous path to legit imate ends when a direct path is available.” Craigmiles, 312 F.3d at 227 (citingCity of Cleburne, 473 U.S. at 449)). And in the instant case, “regardless of the [Plaintiffs’] ability . . . to m eet the statutory requirements, the State already has numerous other means for exacting compliance with . . . obligations,” such as wage garnishm ent, which are “m eans that are at l east as effective as the instant statute’s and yet do not impinge upon” the Plaintiffs’ attempt to regain the right to vote. Zablocki, 434 U.S. at 389; see also id. at 389–90 (“[C]ourtdetermined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties.”). The Supreme Court has made plain that the availability of alternative enforcement mechanisms is relevant in rational-basis review because it exposes the spuriousness ofthe asserted interest. For example, in U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the Court invalidated as irrational a law that distinguished between related and unrelated individuals for purposes of determining food-stamp eligibility. Although the governm ent asserted that the distinction was intended to deter fraud, which was a legitim ate justification, the challenged statute contained other provisions dealing explicitly with fraud prevention. Striking down the statutory provision as a violation of equal protection, the Court stated

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that the inclusion in the statute of these alternative provisions to deter fraud “necessarily casts considerable doubt upon the proposition that the [challenged pr ovision] could rationally have been intended to pr event those very same abuses.” Id. at 537 (“[I]n practical effect, the challenged classificationsimply does not operate so as rationally to further the prevention of fraud.”).

In short, I find entirely unconvincing the m

ajority’s conclusion that

§ 40-29-202(b) and (c) constitute a rational way to encourage Tennesse e’s legitimate

interest in the collection of outstanding financial obligations or encourage compliance

with court orders imposing such obligations. The attempt to incentivize payments that

an individual is simply incapable of making by linking those payments to the right to

vote, particularly when there are other collection m ethods available, advances no

purpose and embodies nothing more than an attempt to exercise unbridled power over

a clearly powerless group, which is not a legitimate state interest. See City of Cleburne,

473 U.S. at 446–47.

The next proffered justification for the statute—that the ballot box needs “protect[ion]” from those who “continue to break the law by failing to copmly with court orders,” Maj. Op. at 6—is likewise unconvincing and is belied by the Tennessee statutes governing the non-payment of child support in the case of subsection (c). Pursuant to Tennessee Code § 39-15-101, the mere inability to pay child support is not a crime. See Tenn. Code Ann. § 39-15-101(a) (“A person commits the crime of nonsupport . . . [when that person] fails to provide support which that person isable to provide and knows the person has a duty to provide . . . .” (emphasis added)). And the failure to pay when able, absent certain aggravating circumstances, amounts to only a misdemeanor, id. § 39-15101(a), (e), which is a criminal act that on its own would be an insufficient basis upon which to deny an individual suffrage. See id. § 40-20-112 (“Upon conviction for any felony, it shall be the judgme nt of the court that the defendant be infam ous and be immediately disqualified from exercising the right of suffrage.”); Tenn. Const. art. 1, § 5 (authorizing disenfranchisement for felons “upon a conviction by a j ury of som e infamous crime”); cf. Shepard v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 1978) (“A state

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properly has an interest in excluding from the franchise persons who have manifested a fundamental antipathy to the criminal laws of the state or of the nation by violating those laws sufficiently important to be classed as felonies.”). Moreover, there has been no allegation that any of the Plaintiffs has been convicted of or pleaded guilty to the failure to pay child support such that they have, in fact, been adjudicated of “break[ing] the law,” and the statute is certainly not limited to such individuals.
Additionally, the assertion that § 40-29-202(b) and (c) are justified on the grounds the ballot box needs protection from felons such as the Plainti ffs, who are unable to make the payments that the statute requires, amounts to nothing “more than a naked assertion that [ a felon’s] poverty by itself ,” Bearden, 461 U.S. at 671, is a sufficient reason to disqualify the felon from regaining the right to participate in the exercise of dem ocracy. This, however, cannot be a legitim ate justification for § 40-29-202(b) and (c), as the Supreme Court’s voting-rights jurisprudence counsels that voting qualifications based on an individual’s ability to pay are per se unconstitutional under the Equal Protection Clause. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966) (invalidating a Virginia statute that assessed a poll tax in state elections on the grounds “that a State violates the Equal Protection Cl ause of the Fourteenth Amendment whenever it makes the affluence of the voter or payme nt of any fee an electoral standard.” (em phasis added)); cf. Richardson, 418 U.S. at 53 (“‘Residence requirements, age, previous crim inal record are obvious exam ples indicating factors which a State may take into consideration in determining the qualifications of voters.’” (quoting Lassiter v. Northhampton County Bd. of Elections , 360 U.S. 45, 51 (1959) (internal citation omitted)).
The effective result of the State’s attempt to justify § 40-29-202(b) and (c) as a legitimate way to limit access to the ballot box is that the State has injected wealth as a determinative factor in an arena where it sim ply has no place. See Bynum v. Conn. Comm’n on Forfeited Rights, 410 F.2d 173, 176–77 (2d Cir. 1969). “Wealth, like race, creed, or color, is not germane to one’s abilityto participate intelligently in the electoral process,” and wealth as a m easure of a voter’s qualification is nothing m ore than a

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“capricious or irrelevant factor” that cannot withstand constitutional scrutiny. Harper, 383 U.S. at 668; see also Crawford v. Marion County Election Bd., 553 U.S. 181, __, 128 S. Ct. 1610, 1616 (2008) (“Although the State’s justification for the tax [inHarper] was rational, it was invidious because it was irrelevant to the voter’s qualifications.”); M.L.B. v. S.L.J., 519 U.S. 102, 123–24 (1996) (“States are not forced by the Constitution to adjust all tolls to account for di sparity in m aterial circumstances. But our cases solidly establish two exceptions to that general rule. The basic right to participate in political processes as voters . . . cannot be limited to those who can pay for a license.” (internal quotation marks and citation omitted)).
By providing for the autom atic restoration of the fr anchise to those who have completed their sentences under § 40-29-202(a), Tennessee ceased to rely on the felon’s participation in criminal activity as its basis for withholding the right to vote. Instead, the State deemed those felons eligible under subsection (a) of § 40-29-202 just as fit to participate in elections on equal term s as other qualified voter s subject to one condition—the payment of a particular financial obligation, regardless of whether the individual can make that payment. Because the Plaintiffs are otherwise eligible for the automatic restoration of the right to vote but are prevented from attaining that right because of their inability to pay a particular sum, the Tennessee statute effectively sets affluence as a voting qualification and is plainly irrational.
In sum, “Tennessee’s justifications . . . come close to striking [me] with the force of a five-week-old, unrefrigerated dead fish,” which this court has stated is “a level of pungence almost required to invalidate a statute under rational basis review.” Craigmiles, 312 F.3d at 225 (internal quotation m arks and citations om itted). And I simply cannot conjure any rational basis that Tennessee would have for distinguishing between those felons who have outstanding obligations that they are unable to meet and those who do not in determ ining who is entitled to regain the franchise. No rational purpose underlies this disparate treatment.

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2. Supreme Court Jurisprudence Regarding the Propriety of Wealth-Based Distinctions Supports the Conclusion that the Provision is Irrational
In addition to the fact that no proffered or conceivable policy reason can justify § 40-29-202(b)’s and (c)’s restrictions as to the Plaintiffs in the instant case, the Suprem Court’s jurisprudence regarding the propriety of wealth-based distinctions further supports my conclusion that the statute differentiates between groups in a manner that is not rationally relat ed to a legitim ate interest. Because the statute distinguishes between those who owe a particular obligation and those who do not in determining whether an individual is worthy of the right to vote—regardless of whether an individual is able to pay—it is indisputabl e that the statute distinguishes am ong felons seeking reenfranchisement on the basis of wealth. Although the Supreme Court has declined to deem less-wealthy individuals m embers of a suspect class, the Court has r ecognized repeatedly that in som e instances wealth-based distinct ions or classifications are the result of prejudice rather than reason and cannot be constitutionally countenanced. Such is the case here.
To determine whether the distinction among felons based on their wealth in the instant case is rational and withstands constitutional scrutinyG, riffin v. Illinois, 351 U.S. 12 (1956), Williams v. Illinois, 399 U.S. 235 (1970), andJames v. Strange, 407 U.S. 128 (1972), are instructive. In Griffin, the Supreme Court invalidated an Illinois law that required defendants who wished to appeal their convictions to purchase a copy of their trial transcripts. The Court determ ined that although “a State is not r equired by the Federal Constitution to provide appellate courts or a right to appellate review at all[,] . . . a State that does grant appellate review [m ay not] do so in a way that discrim inates against some convicted defendants on account of their poverty.”Griffin, 351 U.S. at 18 (plurality opinion); see id. at 21–22 (Frankfurter, concurring). The analogy to the instant case is striking. Even though under current law the Plaintiffs no longer have a fundamental right to vote and Tennessee m ay deprive felons of the ability to vote indefinitely, when Tennessee decided to au thorize reenfranchisement, the state was prohibited from setting conditions on that reenfranchisement that discriminated against

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those otherwise-eligible individuals solely on the basis of their ability to pay a particular sum. Bynum, 410 F.2d at 176–77; cf. M.L.B., 519 U.S. at 111 (“‘This Court has never held that the States are required to establish avenues of appellate review, but . . . once established, these avenues must be kept free of unreasoned distinctions that ca n only impede open and equal access to the courts.’” (quotingRinaldi v. Yeager, 384 U.S. 305, 310 (1966))). The Tennessee statut e plainly “discriminates against some convicted [felons] on account of their poverty,” Griffin, 351 U.S. at 18 (plurality opinion), precluding the reattainment of the franchise solely on the basis of an individual’s wealth and thereby contravening Griffin.

The Supreme Court’s decision inWilliams likewise indicates that the Tennessee

provision cannot withstand even rational-basis scrutiny. InWilliams, the Supreme Court

invalidated a law that required indigent prisoners to serve time beyond their maximum

sentences to work off their fines and court costs if the prisoners were unable to pay these

financial obligations outright. Williams, 399 U.S. at 236, 241. The state contended that

it had an “interest in the collection of revenues” and that the “‘work off’ system” was a

“rational means of im plementing that policy.” Id. at 238. Although the Court

recognized the State’s interest to be “substantial and legitimate,” id., it concluded that

when an individual’s imprisonment exceeded the “maximum period fixed by the statute,”

and when the additional term of imprisonment “result[ed] directly from an involuntary

nonpayment of a fine or court costs,” the statute constituted “an im

permissible

discrimination that rest[ed] on ability to pay.” Id. at 240–41. As with voting

qualifications, the Court determ ined that the state had “wide latitude in fixing the

punishment for state crimes,” id. at 241, but “once the State has defined the outer limits

of incarceration necessary to satisfy its penological interests and policies, itamy not then

subject a certain class of convicted defendants to a period of imprisonment beyond the

statutory maximum solely by reason of their indigency,” id. at 241–42.

Again, the analogy to the instant case is striking. Here, Tennessee set the outer limits of its felon-disenfranchisem ent scheme in § 40-29-202(a) by provi ding for the automatic restoration of suffrage for those who had com pleted their term s of

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imprisonment or received a pardon. Tennessee then proceeded to subject a certain class of felons to an extended period of disenfranchisement beyond that limit solely because of those individuals’ failure (and, in the caseof the Plaintiffs, inability) to pay a sumof money. This condition leads to the denial of the ability to regain a fundam ental right—the right to vote—akin to the right to freedom denied in Williams. Thus, while the interest of the State in collecting child support m ay be “legitim ate” or even “substantial,” Williams, 399 U.S. at 238, it is not rational to achieve that interest in a manner that discriminates against particular felons on the basis of their wealth.1
The conclusion that § 40-29-202(b) and (c) result in a wealth-based distinction that is not rationally relat ed to a legitimate government objective is underscored by James v. Strange, 407 U.S. 128 (1972). In Strange, the Supreme Court unanimously invalidated under rational-basis review a Kansas r ecoupment statute that operated to treat indigent defendant debtors differently from other debtors. The statute appeared neutral on its face, but a close examination of the provision made clear that it “strip[ped] from indigent defendants” who were attem pting to repay the debt accrued from their appointment of counsel “the array of protective exemptions Kansas had erected for other civil judgment debtors.” Id. at 135. As in Williams, the Court “recognize[d] that state recoupment statutes m ay betoken legitim ate state interests,” but it em phasized that “these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other classes of debtors.” Id. at 141. And the Court held that the recoupment statute “embodie[d] elements of punitiveness and discrimination[,] which violate[d] the rights of citizens to equal treatment under the law.” Id. at 142. Here, too, there is no legitimate policy reason for Tennessee to treat felons who have outstanding obligations and are unable to pay any differently from those who owe no financial obligation when it comes to providing for their automatic reenfranchisement.
1The majority’s second assertion, that Griffin and Williams are inapposite because they “concerned fundamental interests subject to heightened scrutiny,” Maj. Op. at 8, is also without m erit. Griffin and Williams were, in fact, decided under rational-basis review, and the Courtnever classified the rights at issue as “fundamental.” See, e.g., Bell v. Hongisto, 501 F.2d 346, 353 (9th Cir. 1974) (“Griffin . . . , although recognizing the importance of adequate review of a criminal conviction, [did] not expressly call it a ‘fundamental interest,’ nor is it clear a strict standard of review was applied.”). More importantly, however, in the years sinceGriffin, as I discussinfra, despite cabining the decisions on other grounds,the Supreme Court has never indicated that this line of caess applied anything other than rational-basis review.

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Moreover, there is no question that the instant case falls within the purview of the above-mentioned Supreme Court precedents addressing the rationality of wealthbased distinctions. The Supr eme Court made this plain in San Antonio Independent School District v. Rodriguez, when it stated thatGriffin, Williams, and their progeny are controlling when plaintiffs share the following “two distinguishing characteristics”: first, “because of their impecunity they [are] completely unable to pay for some desired benefit,” and second, “as a consequence [of their impecunity], they sustain[] an absolute deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio Indep. Sch. Dist., 411 U.S. at 20. The Plaintiffs in the instant case are unable to pay their financial obligations, which is a prerequisite to obtaining the reinfranchisement benefit that they seek, and given that Tennessee otherwise provides for the automatic restoration of the right of suffrage upon the satisfaction of these sum s, it is as a c onsequence of their indigency that they suffer an absolute deprivation of their right to vote2. See also id. at 20–22 (discussing cases where the “class discrim inated against” satisfied the two criteria); M.L.B., 519 U.S. at 127 (“Sanctions of the Williams genre . . . are wholly contingent on one’s ability to pay, and thus visit different consequences on two categories of persons; they apply to all indigents and do not reach anyone outside that class.” (internal quotation marks and citation omitted)).
Furthermore, to the extent th at the Supreme Court has lim ited Griffin and its progeny to those legislative classifications where the government retains a “legal or a practical monopoly” over the benefit that is the concern of the legislation, Kadrmas v. Dickinson Pub. Schs. , 487 U.S. 450, 460 (1988), the instant case falls within that limitation. Like access to the courts, the Plaintiffs have no choice but to engage with the State of Tennessee in seeking the restoration of the right to vote. There is simply “no alternative to that process,”id., other than to forgo seeking reenfranchisement altogether. In sum, Tennessee has conditioned the ability of the Plaintiffs to regain their right to vote
2Notwithstanding the fact that Tennessee initially sets a payment schedule in accordance with a parent’s financial means when the obligation first attaches, the fact that the financial obligation was attainable at the time that it was fixed says nothing about whether a parent can meet the obligation (and any arrears) at present. The key factor is that the Plaintiffs are now responsible for a sum of money that they cannot pay. The statutory ree nfranchisement scheme thus does not accom modate the Plaintiffs’ inability to pay.

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on their payment of legal financial obligations, notwithstanding the fact that they cannot pay, thereby codifying a wealth-based distinction that has no rational relationship to a legitimate State objective. Under Suprem e Court precedent, § 40-29-202(b) and (c) cannot withstand rational-basis review.

3. Supreme Court Disenfranchisement Jurisprudence Supports a Conclusion that § 40-29-202(c) Is Unconstitutional Because It Is Neither Part of the Criminal Sentence for the Felony for Which the State Constitutionally Denied Suffrage Nor Is it O therwise Related to the Fact of Conviction.

Apart from the reasons se t forth above, which are grounded in traditional rational-basis review, I believe it necessary to highlight one additional reason that subsection (c) of § 40-29-202 is constitutionally suspect. Unlike the several felon reinfranchisement cases that courts have confronted across the Circuits, under § 40-29202(c), Tennessee has decided to impose on those felons seeking reinfranchisement an obligation—the payment of child-support arrears—that is entirely di vorced from the reason for which Tennessee was empowered to deny themthe franchise in the first place. Although the Suprem e Court has never addressed specifically the bounds of felon reenfranchisement, the Court’s cases involving felon disenfranchisement highlight the very limited basis upon which States are em powered to deny absolute ly the right of suffrage and counsel against the m ajority’s holding that § 40-29-202(c) is constitutionally sound.

The Supreme Court first upheld the constitutionality of felon-disenrfanchisement

statutes in Richardson v. Ramirez . In that case, the Court determ ined that an

“affirmative sanction” for felon-disenfranchiseme nt existed in § 2 of the Fourteenth

Amendment, Richardson, 418 U.S. at 54–55, which e xplicitly linked perm issible

disenfranchisement to an individual’s “‘participation in rebellion, or other crime,’” id.

at 42–43 (quoting U.S. Const. am end. XIV, § 2). Despite holding that a state could

constitutionally disenfranchise felons, however, the Court m

ade plain that

disenfranchisement laws are not insulated completely from constitutional challenge by

remanding the case for the state court to determine whether “a total lack of uniformity

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in county election officials’ enforcement of the challenged [felon disenfranchisement provision] . . . work[ed] a separate denial of equal protection.”Id. at 56; see also Owens v. Barnes, 711 F.2d 25, 26–27 (3d Cir. 1983) (“It has not been seriously contended that Richardson precludes any equal protection analysis when the state legislates regarding the voting rights of felons.”). In Hunter v. Underwood, the Court further clarified the boundaries of the states’ disenfranchisement power, stating again that such laws are not insulated completely from challenge under the Equal Protection Clause. Exemplifying this principle, the Court invalidated a provision in the Alabama State Constitution that disenfranchised individuals who had committed crimes of moral turpitude and that the Legislature had enacted with an intent to discriminate against a suspect class. Hunter v. Underwood, 471 U.S. 222, 233 (1985).
Although neither Richardson nor Hunter addresses the precise question before this panel, both cases em phasize that the ability to disenfranchise stem s directly and solely from an individual’s commission of a qualifying crime, as contemplated by the plain language of § 2 of the Fourteenth Am endment. They further counsel that laws related to felon suffrage are not im mune from constitutional attack and that there are some instances in which such laws will be invalid. Analyzing § 40-29-202(c) in light of Richardson and Hunter, even assuming it could withstand traditional rational-basis scrutiny, I believe that, in order to withstand a constitutional challenge, the basis upon which the states m ay condition reenfranchisem ent for felons m ust be r elated to the criminal conviction for which the State was first authorized to abridge suffrage—i.e., the Constitution’s explicit “affirmative sanction” for such laws. See Shepard, 575 F.2d at 1114 (“Nor can we believe that section 2 would pe rmit a state to m ake a completely arbitrary distinction between groups of felons with respect to the right to vote.”O);wens, 711 F.2d at 27 (expressing sincere doubt that the state could “disenfranchise similarly situated blue-eyed felons but not brown-eyed felons”). The requirem ent that the Plaintiffs pay child-support arrears prior to the restoration of their right to vote cannot meet this test, as it is a requirement completely divorced from the underlying conviction for which the U.S. Constitution authorized Tennessee to disenfranchise the Plaintiffs.

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The suspect nature of this particular provision is reinforced by cases from both federal and state courts that have addressed and upheld the constitutionality of various laws relating to felon disenfranchisement. See, e.g., Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010); Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010); Owens, 711 F.2d at 27–28; Shepard, 575 F.2d at 1114;Madison v. Washington, 163 P.3d 757 (Wash. 2007). Unlike the child-support-payment provision at issue here, the laws in each of the abovereferenced cases involved distinctions or classifications falling into t wo general, somewhat overlapping, categories that were undeniabl y related to the predicate conviction: (1) laws r equiring that the felon com plete the sentence for the disenfranchising felony and (2) laws diffe rentiating between the type of felony committed or the type of sentence imposed for that felony.
In the first category of cases, the laws at issue in both Harvey and Madison conditioned reenfranchisement on whe ther the felon seeking the right to vote had completed the sentence for the disenfranchising felony. IHn arvey, the law provided that a person convicted of a single felony automatically was entitled to the restoration of the right to vote if the person paid “‘any fine or restitution imposed.” Harvey, 605 F.3d at 1070 (quoting Ariz. Rev. Stat. § 13-912(A)). The Ninth Circuit upheld the restitutionrepayment requirement on the grounds that “Arizona has a rational basis for restoring voting rights only to those felons who have com pleted the terms of their sentences, which includes the payment of any fines or restitution orders.” Id. at 1079. The panel continued by noting that “[j]ust as States might reasonably conclude that perpetrators of serious crimes should not take part in electing gove rnment officials, so too m ight it rationally conclude that only those who have satisfied their debts to society through fulfilling the term s of a crim inal sentence are entitled to restoration of their voting rights.”3 Similarly, in Madison, the Washington Supreme Court upheld a statute that required felons seeking the restoration of suffrage to satisfy any outstanding victim restitution, court costs, and fees associated with their disenfr anchising felonies. Madison, 163 P.3d at 761, 772. The court reasoned that the restitution was part of the
3Notably, the panel reserved the question of whether “withholdingvoting rights from those who are truly unable to pay” would satisfy rational-basis scrutiny. Harvey, 605 F.3d at 1080.

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felony sentences and that “[t]he State clearly has an interest in ensuring that felons complete all of the terms of their sentence.” Id. at 772. Harvey and Madison are thus distinguishable from the instant case with respect to subsection (c) because Tennessee is conditioning the restoration of suffrage on the payment of a sum of money that was neither part of the sentence for the predicate felony nor rem otely related t o the rehabilitation for the disenfranchising conviction.
The second type of case where courts have upheld felond-isenfranchisement laws that distinguished among felons involves provisions that set reenfranchisement eligibility on the basis of the type of sentence the felon received for the predicate felony or the type of disenfranchising felony that the individual committed. As with the first category of cases, these distinctions also relate to rehabili tation for the underlying offense. For example, in Hayden v. Paterson, a panel of the Second Circuit upheld two se parate felon-disenfranchisement provisions against an equal-protection challenge. The provisions at issue disenfranchised incarcerated felons and unincarcerated felons “who ha[d] finished their prison terms, but [whowere] still on parole” but allowed those felons who received “suspended sentences” to regain the right to vote. Hayden, 594 F.3d at 171. Although believing it an “oddity” that the State would distinguish between felons in the manner that it did, the panel nevertheless determ ined that such distinction was rational. Id. After all, the legislature could have believed that the type of sentence imposed for a potentially disenfranchising conviction was a reflection of the seriousness of the individual’s crime and by extension the indivi dual’s ability to be a responsible voting citizen. See id. (“W here a judge has determ ined that im prisonment is not necessary it is difficult to perceive any useful pur pose to be served by denying a convicted person the right to vote during the period of probation or conditional release.” (quoting a letter from the Legal Aid Society)); see also Owens, 711 F.2d at 27–28 (upholding a statute that allowed unincarcera ted felons to vote but disenfranchised incarcerated felons); Shepard, 575 F.2d at 1114–15 (deeming constitutional a provision that reenfranchised felons who were convicted in state court but that required federal felons to obtain a presidential pardon). Again, however,Hayden, Owens, and Shepard are distinguishable from the instant case because, as in Madison and Harvey, the laws’

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classifications were related to the predicate felony for which the state was authorized to disenfranchise the felons in the first place, and the laws furthered the states’ interests in disenfranchising particular felons as a result of their crim inal activity—i.e., the “affirmative sanction” for disenfranchisement found in the Constitution.
By differentiating between those felons who owe a financial obligation completely unrelated to their crim e, § 40-29-202(c) is m aterially distinct from those provisions that courts have held withstand scrutiny. As the Supreme Court emphasized in Richardson, the Constitution expressly lim its the governm ent’s power to disenfranchise to only those individuals who have committed a crime, and I believe that any law further qualifyi ng a felon’s right to vote m ust be viewed in light of the Constitution’s limitation. I thus question whether those classifications that are wholly unrelated to the predicate conviction, suchas § 40-29-202(c), can ever be constitutional, even assuming we can develop some reason that they may, in fact, be rational.
4. Conclusion
In conducting a rational-basis inquiry, we “seek only the a ssurance that the classification at issue bears som e fair rela tionship to a legitim ate public purpose.” Plyler, 457 U.S. at 216. Howe ver, “[r]ational basis review, while deferential, is not ‘toothless.’” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998) (quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976)). In light of the absence of any rational purpose for the disparate treatment sanctioned by § 40-29-202(b) and (c), as well as the Supreme Court’s reluctance to deem rational state-imposed qualifications drawn along economic lines that inhibit the exercise of any right over which the state has a monopoly, I would hol d that the provision requiring paym ent of child support and restitution prior to the restoration of suffrage, regardless of an individual’s ability to pay, cannot withstand constitutional scrutiny.
One of the pr imary reasons that “courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws” is because “[t]he Constitution presum es that, absent som e reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process.” Vance

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v. Bradley, 440 U.S. 93, 97 (1979);City of Cleburne, 473 U.S. at 440. The instant case, however, is a perfect example of when this is unlikely to be the case. A “restriction[] upon the right to vote” undeniably “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Felons are clearly a politically unpopular group, and it is unlikely that anyone else will carry the banner for them. The district court erred in granting judgment on the pleadings with regard to this claim, and I must respectfully dissent from the m ajority’s resolution of the Plaintiffs’ Equal Protection Clause challenge.
B. Twenty-Fourth Amendment Claim
Turning to the Plaintiffs’ next claim, I would hold that the Plaintiffs have alleged sufficient facts to state a claim for relief under the Twenty-Fourth Am endment to the U.S. Constitution and that judgment on the pleadings was therefore improper. Section 1 of the Twenty-Fourth Amendment provides, in relevant part, that the right to vote in federal elections “shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. am end. XXIV. The Amendment was enacted to prevent “the disenfranchisem ent of the poor,” Harman v. Forssenius, 380 U.S. 528, 539 (1965), and by its plain langua ge creates an absolute prohibition on “any poll tax or other tax.” U.S. Const. amend. XXIV.
The Twenty-Fourth Amendment is not subject to the same analysis as a statute under the Equal Protection Clause of the Foutreenth Amendment, with its various forms of scrutiny, or the balancing tests set forth in the Supreme Court’s voting-rights cases. Instead, if a payment constitutes a “poll tax or other tax,” U.S. Const. amend. XXIV, and it denies or abridges the right to vote, th en it is unconstitutional. It does not m atter whether an individual is capable of paying. See Harman, 380 U.S. at 542 (“For federal elections, the poll tax is abolished absolutely as a prerequisite to voting . . . ”) .4 A threshold question that the court must face when confronted with the Plaintiffs’ Twenty-
4See generally Allison R. Hayward, What Is an Unconstitutional “Other Tax” on Voting? Construing the Twenty-Fourth Amendment, 8 Elect. L.J. 103 (2009).

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Fourth Amendment claim, however, is whether the payments at issue here constitute a “tax” within the meaning of the Amendment. Because I believe that the Amendment’s prohibition on “other tax[es]” includes portions of the paym ents potentially required under § 40-29-202(b) and (c), and that the Plaintiffs’ right to vote is being abridged or denied by their failure to pay those taxes, I would hold that judgment on the pleadings with respect to this claim was improper.
There is relatively little guidance fromthe Supreme Court as to the scope of the Twenty-Fourth Amendment apart from its decision in Harman,5 which was the Court’s first opportunity to construe the Amendment. Harman, 380 U.S. at 529. InHarman, the Court addressed the validity of Virginia’s newly amended voter-registration law, which, in direct response to the enactment of the Twenty-Fourth Amendment, had “removed the poll tax as an absolute prerequisite to qualification for voting in federal elections, but in its stead [had] substituted a provision whereby the federal voter could qualify either by paying the customary poll tax or by filing a certiifcate of residence six months before the election.” Id. at 540. The Supreme Court concluded that “in order to demonstrate the invalidity of” the Virginia provision under tehTwenty-Fourth Amendment, “it need only be shown that [the statute] im pose[d] a material requirement solely upon those who refuse[d] to surrender their constitutional righto vote in federal elections without paying a poll tax.” Id. at 541. In other words, the stat ute was unconstitutional if the requirement that the individual file a certifciate of residency imposed a material obstacle upon the voting ability of those “those who asse rt[ed] their constitutional exem ption from the poll tax.” Id.
After reviewing the certificate-of-residency requirement, the Court held that the filing requirement that the statute “imposed upon the voter who refuse[d] to pay the poll tax constitute[d] an abridgment of [the] right to vote by reason of failure to pay the poll tax” and contravened the Twenty-Fourth Amendment. Id. at 542. It is important to note,

5See generally Bruce Ackerman & Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. Rev. 63 (2009) (highlighting the Suprem e Court’s lack of discussion and litigants’ lack of assertion of the Twenty-Fourth Amendment in several important votingrights cases, including Harper and Crawford).

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however, that the Court inHarman did not opine on whether the certificate-of-residency

requirement itself fell within the Amendments’ “other tax” language. Thus, the Supreme

Court has not addressed directly the threshold question presently before this panel:

Whether the requirement that the Plaintiffs pay restitution and child-support arrears

amounts to a “tax” within the m proscriptions.6

eaning of the Twenty-Fourth Am endment’s

The majority claims that § 40-29-202(b) and (c) do not invoke the Twenty-Fourth Amendment’s protections because they condition voting on payments of obligations that the “Plaintiffs themselves incurred,” and “do not represent taxes on voting imposed by the state.” Maj. Op. at 12. I believe thi s reasoning infirm. Certainly, the types of payments at issue here are distinguishable from those in Harman and Harper. The contested payments in both of those cases were the payments that most commonly come to mind upon hearing the term “poll tax”: That is, “[a] capitation tax; a tax of a specific sum levied upon each person within the jurisdiction of the taxing power and wi thin a certain class,” or “[a] tax upon the privilege of being.” Bl ack’s Law Dictionary 1159 (6th ed. 1990);7 see Harper, 383 U.S. at 668–69 (“Levy by the poll . . . is an old familiar form of taxation.” (internal quotation marks omitted)); see also Harman, 380 U.S. at 529 n.1, 530–32 (describing the State of Virginia’s poll-tax provisions). The payments at issue here are not capitation or head taxes. But, as m entioned, the plain text of the Twenty-Fourth Amendment does not prohibit onl y capitation taxes as a voting

6As previously mentioned, the Supreme Court also addressed the validity of a “poll tax ” in Harper v. Virginia State Board of Elections, and ultim ately declared the poll tax in state elections unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Harper, 383 U.S. at 666. Although Harper neither invoked nor construed the Twenty-Fourth Amendment, it is nonetheless helpful in assessing the evils at which the Am endment was aimed. As with Harman, the issue of what amounts to a poll tax or other prohibited tax was not before the Court in Harper.
7Conceptually, it is important to remember that the poll tax “originally had nothing to do with voting.” Fagan Dickson, The Poll Tax and Voter Registration, 35 Tex. L. Rev. 1031, 1031 (1957). It was assessed independently of the exercise of any right. As Professor Hayward, explains:
The misimpression that a poll tax must be a tax on voting no doubt derives in part from the fact that we refer to voting places as polling places. But “poll” originally was a term referring to the human head. At the polls we count heads and a poll tax is a head tax. See, for example, Ophelia’s lament: “His bead was as white as snow, / All flaxen was his poll.” William Shakespeare, Hamlet, IV, 5. Hayward, supra n.4, at 104 n.5; see also Harper, 383 U.S. at 668 n.5 (“Maine has a poll tax which isnot made a condition of voting; instead, its payment is a condition of obtaining a motor vehicle license or a motor vehicle operator’s license.” (internal citations omitted)).

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qualification. The plain language of the Am endment precludes the imposition of any

“other tax,” and the Harman Court made plain that because the Amendment’s drafters

intended the Amendment to “nullif[y] sophisticated as well as simple minded modes of

impairing the right” to vote, Harman, 380 U.S. at 540–41 (internal quotati on marks

omitted), the absolute prohibition on taxes includes their “equivalent or m

ilder

substitute[s].” Id. at 542.

1. Portions of the Payments Under § 40-29-202(b) and (c) Are Taxes.

There is a notable absence of case law developing what constitutes an “other tax” such that it falls within the purview of the Twenty-Fourth Amendment. And those cases that do address whether a particular paym ent amounts to a tax are largely unhelpful because they deal almost exclusively with the costs levied indirectly on the right to vote as a result of voter-i dentification requirements and fail to analyze the issue under the Twenty-Fourth Amendment’s “other tax” language. See, e.g., Gonzalez v. Arizona, 485 F.3d 1041, 1049 (9th Cir. 2007) ( holding, without m uch discussion, that Arizona’s identification law did not amount to a poll tax under the Twenty-Fourth Amendment); Ind. Democratic Party v. Rokita , 458 F. Supp. 2d 775, 826–27 (S.D. Ind. 2006) (rejecting a poll-tax challenge to Indiana’s photo-identiifcation law, but curiously failing to cite or explicitly analyze the Twenty-Fourth Amendment), aff’d sub nom. Crawford v. Marion County Election Bd. , 472 F.3d 949 (7th Cir. 2007), aff’d 128 S. Ct. 1610 (2008); Common Cause/Ga. v. Billups, 439 F. Supp. 2d 1294, 1354–55 (N.D. Ga. 2006) (holding Georgia’s revised photo-identification statute did not constitute a poll tax under the Twenty-Fourth Amendment); Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326, 1366–70 (N.D. Ga. 2005) (finding “a substantial likelihood of success” on the claimthat Georgia’s photo-identification requirem ent imposed an unconst itutional poll tax in violation of the Twenty-Fourth Am endment); In re Re quest for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 740 N.W.2d 444, 463–66 (Mich. 2007) (holding that Michigan’s identification l aw did not am ount to a poll tax under the Twenty-Fourth Amendment and agreeing with Rokita’s reasoning); cf. Weinschenk v. State, 203 S.W.3d 201, 213–14 (Mo. 2006) (“While requiring payment to obtain a birth

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certificate is not a poll tax . . . it is a fee . . . [and] Harper makes clear that all fees that impose financial burdens on eligible citizens’ right to vote, not m erely poll taxes, are impermissible under federal law.”).
As the precise question at issue here is one of first impression in this Circuit, I turn first to the Twenty-Fourth Amendment’s text. The Supreme Court has emphasized on numerous occasions that in interpreting the text of an Amendm ent, the courts “are guided by the principle that ‘[t]he Constitution was written to be unde rstood by the voters; its words and phrases were used in their norm al and ordinary as distinguished from technical meaning.’” District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008) (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)) (alteration in original). “Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens” at the time the Amendment was proposed and ratified. Id.
Section 1 of the Amendment reads:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
U.S. Const. amend. XXIV. In determining what types of “other tax[es]” the drafters had in mind, the common dictionary definitions of the term “tax” are a useful starting point. At the time of the Twenty-Fourth Am endment, “tax” was ordinarily defined as “a usu[ally] pecuniary charge imposed by legislative or other public authority upon persons or property for public purposes: a forced contribution of wealth to emet the public needs of a government.” Webster’s Third New International Dictionary 2345 (14th ed. 1961 & 15th ed. 1966). Similarly, the legal definition of “tax” at the time of the Amendment’s debate and ratification was “[a] forced burden, charge, exaction, im position, or contribution assessed in accordance with som e reasonable rule of apportionm ent by authority of a sovereign stat e upon the persons or property within its jurisdiction to provide public revenue for the support of the government, the administration of the law,

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or the payment of public expenses.” Ballentine’s Law Dictionary 1255 (3d ed. 1969); see Black’s Law Dictionary 28 (4th ed. 1951) (“[A] pecuniary contribution . . . for the support of a government.”); see also United States v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (indicating that the “standard definition of a tax” is an “‘enforced contribution to provide for the support of governm ent.’” (quoting United States v. La Franca, 282 U.S. 568, 572 (1931)). In essence, a “tax” at the time of the Amendment had the following essential components: (1) that it be levied by the government (2) for the support of the government or the general public.
Contrary to the Plaintiffs’ contention, the entirety of the payments at issue here is unlikely to fit the common definition of “tax.” Although child-support and restitution orders amount to forced monetary contributions imposed by the State of Tennessee or the U.S. Government, their primary purpose is to benefit dependent children and the victims of the Plaintiffs’ crim inal actions, as opposed to the public needs of the government. As a result, I believe that as a general matter these payments may be more appropriately viewed as debts. See Black’s Law Dictionary 1628–29 ( 4th ed. 1951) (noting in the “Practice” section of t he definition of “tax” that a tax, “[i]n a general sense, [is] any contribution imposed by governm ent upon individuals, for the use and service of the state, whether under the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name. And in its essential characteristics is not a debt ” (emphasis added)); see also United States v . Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 220, 224 (1996) (distinguishing between a tax and a debt under bankruptcy law); cf. Jenny Lynn Mining Co. v. Ohio Dep’t of Natural Res., 780 F.2d 585, 589 (6th Cir. 1986) (“One of the characteristics of a tax as opposed to a fee is that a tax is an exaction for public purposes rather than a voluntary payment for a private benefit.”).
But, in fact, I need not decide that broader question here becauseyminquiry does not end with consideration of the entirety of the payments required under § 40-29-202(b) and (c). Although we m ay understand child-support and restitution paym ents as generally being paid for the benefit of a party other than the governm ent, a close r

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inspection of the obligations at issue here indicate s that the government does reap a specific and definable pecuniary benefit from at least some of the obligations required by Tennessee’s statute. In the case of child-support arrears, Tennessee law specifically authorizes the State to augm ent an individual’s obligation by five percent, which is payable to the government and is plainly for its benefit. With regard to state and federal restitution orders, there are also instances in which the government is the recipient and intended beneficiary of an individual’s paym ents. Thus, regardless of whether the entirety of the payments required by § 40-29-202(b) and (c) can be properly defined as taxes in each case where they are imposed, at least some of those required payments can be so classified.
Looking to Tennessee’s child-support-payment provisions, pursuant to Tennessee Code § 8-21-403(a), the Tennessee clerk of a court who “receiv[e s], handl[es,] and disburs[es] . . . child support . . . under and by order of court is entitled to charge and receive from the obligor the sum of five percent (5%) for any and all payments received during each calendar month.” The five-percent addition is not levied separately fromthe child-support order; instead, it is “an obligation of the obligor and shall be added to the amount of court-ordered child support, making the total obligation of the obligor the support plus the clerk’s fee .” Id. In the event that an individual can afford to pay a portion of his or her child-support arrears and remits that payment to the clerk, the clerk is directed to “prorate any such partial payment as to support and clerk’s fee.”Id. Thus, despite having paid the totality of the original sum owed, an individual would still be precluded from voting as a result of the failure to pay only the state’s five-percent levy. In essence, although a child-support obligation in the most general sense may be more properly considered something other than a tax, the five-percent levy added to that obligation, and which by statute becom es part of that obligation, is an enforced contribution in support of the government—i.e., a “tax.”8
8The fact that a five-percent charge may represent a relatively small amount and would not result in much, if any, increase in state revenue is nodt ispositive in determining whether these payments amount to the type of “other tax” that the Twenty-Fourth Am endment forbids. If small payments were exempt from the definition, the poll tax itself would pass constitutional m uster. The am ount of m oney that remained with the State froma poll tax tied to votingprior to the Twenty-Fourth Amendment’s ratification was de minimis, and it provided no substantial revenue. See Frederic D. Ogden, The Poll Tax in the South

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The restitution that § 40-29-202(b) requires an individual to pay prior to the restoration of suffrage includes both state and federal obligations, so I must look to how each operates to determ ine whether § 40-29-202(b) im poses an unconstitutional tax. Because there are instances where an individual is obligated to pay restitution to either the state or federal government and that money is allocated to programs for the benefit of the government and the general public, I would hold that § 40-29-202(b) can impose an invalid tax.
First, under Tennessee law, there is at least one circumstance where a defendant is required “to make restitution to the state . . . for deposit into the state general fund.” Tenn. Code Ann. § 40-35-320(a), (d). I believe that in such case, the restitution would plainly amount to a “tax” because under § 40-35-320 a restitution order would amount to a forced contribution of wealth to the State for the general benefit of both the State and the public. See also Tenn. Code Ann. § 39-17-417(c)(2)(B) (requiring that certain drug-related sentences i nclude “restitution to any governm ent entity for the costs reasonably incurred in cleaning the area in which [the drug] offense occurred”). Second, in the federal system , restitution orders a re generally “governed by the Victim and Witness Protection Act of 1982 (“VWPA”).”9 United States v. Webb, 30 F.3d 687, 689 (6th Cir. 1994) (citing 18 U.S.C. §§ 3663, 3664). Although an order of restitution under the VWPA is typically paid to and for the benefit of the victimof the crime, id.; see also 18 U.S.C. § 3663(a)(1)(A), there is, however, at least one exception r elevant to the instant case. Pursuant to § 3663(c), when a defendant has been convicted of a crime under the Controlled Substances Act and whenthere is “no identifiable victim, the court may order that the defenda nt make restitution” to the federal government. 18 U.S.C. § 3663(c)(1). The m oney collected is t hen distributed to the State within which the

36, 55–58 (1958); id. at 55 (“[T]he tax is first a suffrage measure and only incidentally a means of raising revenue.”); id. at 58 (“Where the poll tax is tied to the suffrage, its purpose is to limit the electorate and not to raise revenue.”).
9Since the enactm ent of the VWPA, Congress has enacted a num ber of additional statutes governing restitution, including the Mandatory Victims Restitution Act of 1996 (“MVRA”), which makes restitution to victims of certain crimes mandatory, see 18 U.S.C. § 3663A, and supplements the VWPA. United States v. Lincoln , 277 F.3d 1112, 1113 (9th Cir. 2002) (“Congress enacted the MVRA as a supplement to the Victim Witness Protection Act (VWPA), 18 U.S.C. § 3663.”).

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crime occurred, with “65 percent of the to tal amount” being “paid to the State entity designated to administer crime victim assistance,” id. § 3663(c)(3)(A), and “35 percent of the total amount of restitution” being “paid to the State entity designated to receive Federal substance abuse block grant funds,” id. § 3663(c)(3)(B).
Restitution awarded under § 3663(c) certai nly fits the above-referenced definitions of a “tax.” Section 3663(c) im poses a monetary obligation upon an individual, and the statute m akes plain that the restitution is collected and then redistributed to fund state-run programming for the general benefit of its citizens. See also Reorganized CF&I Fabricators, 518 U.S. at 224 (“[A] tax is a pecuniary burden laid upon individuals or prope rty for the purpose of supporting the Governm ent.” (internal quotation marks omitted)); cf. Wright v. McClain, 835 F.2d 143, 144, 145 (6th Cir. 1987) (holding that a statute requiring “any person on parole or granted a suspension of sentence in Tenne ssee” to pay thirty-fiv e dollars per m onth into funds for the Corrections Department to “defray the cost to the general public of m onitoring and supervising the behavior of convicted offenders and to compensate, in some measure, victims of c riminal misconduct” imposed a tax). Again, although m any restitution orders may not amount to a tax, I need not reach that broader question because some of the restitution orders that § 40-29-202(b) does encompass do impose a prohibited tax, and the Plaintiffs have stated a viable claim.10
2. Section 40-29-202(b) and (c) Operate Analogously to a Poll Tax.
My conclusion that some of the payments required under § 40-29-202(b) and (c) amount to a prohibited tax is not altered by the fact that these payments may also meet the broader definition of a debt because my analysis of whether § 40-29-202(b) and (c) require payment of a “tax” as a prerequisite to voting does not stop with definitions.

10Because the district court dismissed the case on the pleadings, the record on appeal contains little information on the Plaintiffs’ obligations in either the state or federal system. As indicated above, however, the substance of these orders is important to resolving the instant case. According to adocument from the U.S. Department of Justice submitted by the Plaintiffs—of which I takejudicial notice—at least one of the Plaintiffs’ restitution orders “may include additional costs, interest,penalties, and a surcharge” in addition to the am ount the Plaintiff initially owed. Pl. Exh. A at 11. If this is the case, then the Plaintiffs’ argument that portions of the restitution orders amount to a prohibited “tax” is even stronger.

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Instead, a comparison of the poll tax at issue in Harman to the payments required here also helps to clarify the parameters of the definition of tax and provides further support for my conclusion that the Twenty-Fourth Amendment encompasses at least a portion of the payments required by § 40-29-202(b) and (c).
Tellingly, at the most fundamental level, § 40-29-202(b) and (c) operate in the same manner as the indisputably forbidden “poll tax”—they both require an individual who desires to vote to pay a monetized sum as an absolute condition to casting a ballot in a federal election. This similarity is extremely relevant given that “[o]ne of the basic objections to the poll tax was that it exacted a price for the privilege of exercising the franchise” and that the primary motivation of the Amendment was “a general repugnance to the disenfranchisement of the poor occasioned by failure to pay the tax.” Harman, 380 U.S. at 539; see also Harper, 383 U.S. at 668. The fact that § 40-29-202(b) and (c) set the price for the privilege of voting at something besides a government-imposed per capita levy is not determinative. The statutesets a price nonetheless, and this is the exact evil that the Twenty-Fourth Amendment was meant to address.
The majority implies that the Twenty-Fourth Amendment prohibits only those payments that the State im posed with a specific purpose to inhibit exerci se of t he franchise and those payments that a person would not otherwi se be required to make. The specific poll tax at issue inHarman, however, counsels the opposite conclusion, and provides another point of comparison between the clearly unconstitutional “poll tax” adn the payments in the instant c ase. This again supports the conclusion that, at the very least, parts of the payments required under the Tennessee statute are properly considered taxes. In Virginia, the failure to pay the poll tax not only precluded the exercise of suffrage, but it also amounted to a separately enforceable financial obligation or debt similar to an order for restitution or an order for the payment of child-support arrears. See Harper, 383 U.S. at 664 n.1; Frederic D. OgdenT, he Poll Tax in the South64 (1958) (“In Virginia, collection of the poll tax is enforceable . . . [once] the tax has becoemthree years past due.” (citing Va. Const. § 22)). Moreover, an individual coul d not avoid payment of the poll tax by not voting. “Property owners [we]re assessed for the poll tax

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along with assessment of their property,” and “[s]ome county officials ma[d]e an effort to assess all who [we]re liable,” leading to instances where “citizens pa[id] the poll tax as an item of the general tax bill without realizing that they ha[d] done so.”Id. at 65–66. In other words, it is not true that those taxes the Twenty-Fourth Amendment prohibits can be narrowly defined to include only otherwise avoi dable payments that rem ain uncollected except as a prerequisite to the exercise of suffrage. As the Plaintiffs in the instant case “themselves incurred” their obligations apart fromtheir attempt to vote, Maj. Op. at 12, so did the potential federal voters in Virginia. At t he time of the TwentyFourth Amendment, poll-tax obligations were levied by the various governm ents, amounted to enforceable debts, and wer e frequently paid regardless of whether an individual ever attempted to vote.
The poll taxes that existed in several other states at the tiemof the Twenty-Fourth Amendment also support the conclusion that what amounts to a prohibited “other tax” is not restricted to only those monetary obligations that are tied exclusively to the right to vote and not otherwise owed as debts or similar financial obligations. In Arkansas, payment of the poll tax was not sim ply a prerequisite to voting but was required to obtain “a state or municipal license or permit of any kind and to receive any salary or other compensation from public funds.” Ogden, Poll Tax, supra at 61. “In Mississippi payment [wa]s voluntary and no bills [we]re sent out,” but the State did “make the tax a lien upon taxable property.” Id. at 63. “[P]oll tax delinquents [in Texas were] subject to three additional days of road work over the five days norm ally required or to the payment of a fine of $3.00,” and the State “levi[ed] penalties upon [a] late poll tax payment,” in the same manner “as for other delinquent taxes.” Id. at 68. In 1948 in South Carolina, “poll tax collections were prosecuted like those for other taxes.” Id. at 72.
Even Tennessee’s poll tax, although abolished prior to the Am endment’s ratification, “had fairly stringent provisions relative to its payment,” id., and amounted to a financial obligation regardless of and independent from the desire or attem pt to exercise franchise. As reflected in the Tennessee Code from 1934, the payment of the

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poll tax was tied to the paym ent of property taxes, the state levied penalties for delinquency, and delinquent taxpayers were at risk of “the sale of his personal property and to garnishment proceedings.” Id.; see Williams Tenn. Code §§ 1559, 1547, 1574, 1577 (1934). Again, analogous to the payments that the Plaintiffs in the instant case face, poll-tax assessments were individuallyincurred, independently collectable financial obligations that were owed regardless of one’ s actual attempt to exercise the right of suffrage. Thus, although the child-support arrears and restitution paym ents outlined above could also be classified as debts, so too could those poll taxes in existence at the time of the Twenty-Fourth Amendment’s ratification.
In sum, the text of the Am endment as well as the sim ilarities between the quintessential “poll tax” at issue in Harman and the payments challenged here lead me to conclude that portions of the financial preconditions to voting that the Plaintiffs now face amount to a tax on voting of the kind that the Twenty-Fourth Aemndment prohibits.
3. The Legislative History of the Tw enty-Fourth Amendment Indicates that Congress Intended to Preclude the Payment of Money Generally.
The legislative history of the Twenty-Fourth Amendment further supports my conclusion that at least a portion of the child-support and restitution orders under § 4029-202(b) and (c) falls within the drafters’ conception of the Amendment’s prohibition. The Senate did not issue a Com mittee Report for the Am endment until after it was approved. See S. Rep. No. 87-305, at 11–13 (1962). The contem poraneous House of Representatives Committee Report, however,does recognize that the Amendment’s text extended beyond poll taxes and “would also prevent both the United States and any State from setting up any substitute tax in lieu of a poll tax.” See Proposed Constitutional Amendment: Poll Tax as a Qualification for Voting, H.R. Rep. No. 87-1821 (1962), reprinted in 1962 U.S.C.C.A.N 4033 (1962). The House Report stopped short of delineating what types of taxes qualified as these “substitute tax[es],” but the Report indicated that the Amendment would “prevent[] the nullification of the am endment’s effect by a resort to subterfuge.” Id. at 4037. The types of payments that fall within the definition of “tax” must therefore be determined with this legislative purpose in mind.

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Certainly the requirem ent that an individual pay the above-described sum s as a prerequisite to voting thwarts the stated purpose of the Am endment to elim inate pecuniary “obstacle[s] to the proper exericse [sic] of a citizen’s franchise.”Id. at 4035.
The Senate and House debates, as well as the House hearings on the elimination of the poll tax, further indi cate that Congress envisioned that the Am endment’s prohibition on the use of an “other tax” would enc ompass the payments of m oney generally and would certainly reach those portions ocfhild-support and restitution orders payable to the government and for its benefit, if not the obligations in their entirety. For example, during the Hearings before the House Com mittee on the Judiciary, Representative Gonzalez indicated that “[t]here should not be any price tag or any other kind of tag on the right to vote.” Abolition of Poll Tax in Federal Elections: Hearing on H.J. Res. 404, 425, 434, 594, 601, 632, 655, 663, 670 & S.J. Re s. 29 Before the Subcomm. No. 5 of the H. Comm. on the Judiciar,y87th Cong., 2d Sess. 15 (1962). And alluding to the m anner in which I have analyzed the Tennessee provisions above, Representative Gonzalez counseled that “tax” should be defined “within the framework of the history and the payment of the poll tax or similar taxes.” Id. at 17. The Hearings also addressed the “other tax” language directly, noting that it was fairly broad and would prevent the governm ent from levying “say, a property t ax, a real estate, ad valorem[] tax[,] . . . [or] a property tax on automobiles.” Id. at 51.
The Senate debates did not address at any l ength the potential scope of the Amendment’s “other tax” language or what might amount to a forbidden poll-tax substitute. Senator Javits, however, spoke of elim inating any “encumbrance” on the right to vote of the poll tax’s “character.” 108 Cong. Rec. at 4155. As outlined above, at least some of the payments required under § 40-29-202(b) and (c) share fundamental characteristics with the poll tax. Again, theyare forced monetary contributions paid to the government for the benefit of the government or the general public, regardless of the fact that may also amount to independently collectable debts.
The statements made during the House debates are a bit more helpful in defining those payments that the Amendment was intended to reach, and they demonstrate that

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it was not only those payments that fit within the technical definition of a tax that the Amendment targeted. Representative Fascell, explaining his support for the Amendment, made clear that “the payment of money whether directly or indirect ly, whether in a small amount or in a large amount should never be permitted to reign as a criterion of democracy.” 108 Cong. Rec. at 17657 (emphasis added). “There should not be allowed a scintilla of this in our free society.”Id. Representative Joelson also spoke in support of the Amendment, declaring it “unthinkable that in the United States, there are still areas in which American citizens are required to pay for the right to vote.” Id. at 17662. Representative Boland stated that “there should not be any price tag or any kind of tax on the right to vote.” Id. at 17666 (emphasis added). “For some people, this financial imposition may be enough to discourage participation in the electoral process.” Id. Representative Yates exclaimed that, “[p]lacing the payment of a fee between the voter and the ballot box is distinctly not in keeping with the ideals of our democracy.” Id. (emphasis added). Representative Gallagher stated, “Any charge for voting unjustly discriminates against people of limited means.” Id. at 17667 (emphasis added). “And whatever the amount of money, a citizen of the United States should not have to pay for his constitutional right to vote.” Id. Representative Curtis highlighted the “important right to cast a free ballot.”Id. at 17668. And, finally, Representative Halpern advocated for the Amendment’s passage as a step toward “outlawing th[e] undemocratic, feudal practice of placing a price tag on the right to vote.” Id. at 17661 (emphasis added).
The drafters and supporters of the Twenty-Fourth Amendment plainly intended that the Amendment reach those payments of money that placed a price on the franchise, regardless of whether those taxes could also be characterized as debts or fees. See Harman, 330 U.S. at 542. Reading “tax” too restrictively would undoubtedly conflict with this overarching intent. In fact, albeit in the context of striking down the poll tax as unconstitutional in state elections under the FourteenthAmendment, the Harper Court used the term “tax” interchangeably with “fee” in discussing the primary evil of the poll tax. See Harper, 383 U.S. at 668 (“The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay afee to vote or who fail to pay.” (emphasis

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added)). This evidences the broader common understanding of what amounted to a tax on voting only a few short years after the Amendment’s ratification, and, by extension, what meaning “other tax” may have had. It also emphasizes that the primary objection to the poll tax was the imposition of any pecuniary obstacle on an individual’s right to vote.
In sum, a plain reading of the Twenty-Fourth Amendment’s text, an analysis of the types of payments against which the drafters of the Amendment intended to guard based on the common understanding of the operation and characteristics of a “poll tax,” and the legislative history of the Am endment leave me without a doubt that at least portions of Tennessee’s required payments fall within the scope of the Amendment and constitute a prohibited “other tax.” It is worth emphasizing again that the Amendment was enacted with the purpose of thwarting “sophisticated as well as simple minded” attempts to disenfranchise the poor . Harman, 380 U.S. at 540. And although the payments here m ay be reasonably justified outside of the election context, they are completely without a function in the State’s administration of federal elections.
4. Section § 40-29-202(b) and (c) Abridge the Right to Vote.
Having concluded that at least portions of the payments required under § 40-29202(b) and (c) amount to the type of “tax” that the Twenty-Fourth Aemndment prohibits, I turn to whether those taxes deny or abridge the right to vote. See U.S. Const. amend. XXIV. They plainly do. Although it was the disenfranchiseemnt statute that first denied the Plaintiffs the right to vote following their felony convictions, the Plaintiffs would be eligible automatically for the restoration of suffragebut for the pecuniary preconditions in § 40-29-202(b) and (c). In short, the only reason that the State is able to continue to deny the Plaintiffs the right t o vote is because they are unable to pay what § 40-29202(b) and (c) require. The Plaintiffs’ right tovote in federal elections is impaired “by reason of failure to pay the . . . tax,”Harman, 380 U.S. at 544, and for no other reason1.1
11The majority’s statement that the Twenty -Fourth Amendment is ina pplicable because Tennessee’s “provisions do not disenfranchise” the Plaintiffs “or anyone else,” Maj. Op. at 11 (emphasis added), fails to recognize that although an explicit disenfranchisement provision is the m ost extreme example of a provision that denies or abridges the right to vote, it is not the only one. It bears repeating

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The district court erred in granting judgment on the pleadings on the Plaintiffs’ claim under the Twenty-Fourth Amendment.
C. Tennessee State-Law Ex Post Facto Claim
With regard to the Plaintiffs’ state-law ex post facto claim, I also depart fromthe majority’s conclusion, and I would hold that § 40-29-202(b) and (c) are punitive in nature and that their retroactive application contravenes the Constitution of the State of Tennessee.12
Article I, Section 11 of the Tennessee Constitution prohibits the creation of ex post facto laws. Tenn. Const. art. 1, § 11. “[T]he application of t he Ex Post Facto Clause is a legal question subject to de novo review.” Doe v. Bredesen, 507 F.3d 998, 1002 (6th Cir. 2007) (considering the U.S. Constitution). W e also review de novo a district court’s interpretation of a state constitution. Id. at 1003. Tennessee courts generally look to interpretations of the federal provision for guidance when analyzing state-based ex post facto claim s. Id. at 1008. The Tennessee Suprem e Court has indicated, however, that the state clause is interpreted more broadly than the federal one and provides stronger protection. See Miller v. State, 584 S.W.2d 758, 760–61 (Tenn. 1979) (rejecting a federal Supreme Court ex post facto holding as too restrictive under the state constitution); see also Decker v. Carroll Acad., No. 02A01-9709-CV-00242, 1999 WL 332705, *12 (Tenn. Ct. App. May 26, 1999) (unpublished) (noting that with regard to the ex post facto clause, “[t] he Tennessee Constitution can provide stronger

that but for these taxes, the Plaintiffs would be otherwise entitled to cast their ballots. This is nothingomre than elemental causation—it is the taxes that are denying the Plaintiffs the right to regain the franchise.
The Supreme Court and Congress have em phasized repeatedly that econom ic status has no bearing on an individual’s ability and right to participate in the electoral process and plays no role. See, e.g., Harman, 380 U.S. at 539; Harper, 383 U.S. at 666. Despite this declaration, however, under the majority’s reasoning, the State would be aut horized to enact a provision within Tennessee’s reinfranchisement statute that explicitly required all felons to pay $1000 before casting their vote with no constitutional limitation at all. This cannot be the law.

12I disagree with the majority’s conclusion that the Plaintiffs have appealed “only the rejection

of their Tennessee constitutional claim.” Maj. Op. at 13. Although not a model of clarity, the Plaintiffs’

appellate brief explains in several places that they believe the enforcem ent of the challenged statute

violates both the state and federal ex post facto clauses, Pls.’ Br. at 3, 41, and they cite th

e U.S.

Constitution and U.S. Supreme Court case law, in addition to state law, in support of their arguments. See

id. at 39–47. Regardless of whether the federal claimwas waived, however, I would decline to reachthe

merits because the Plaintiffs prevail under state law.

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protection than that provided by the United States Constitution,” and citing State v. Middlebrooks, 840 S.W.2d 317, 338 (Tenn. 1992), among other cases).
“The [federal] Ex Post Facto Clause is im plicated where a law punishes retrospectively: a law is retrospective if it changes the legal consequences of acts committed before its effective date.” Doe, 507 F.3d at 1003 (internal quotation marks omitted). A claim under the federal Ex Post Facto Clause generally invokes a two-part inquiry. First, we determine the nature of the challenged law, evaluating whether it is civil, regulatory, or punitive. See Smith v. Doe , 538 U.S. 84, 92 (2003). If the legislature intended to impose a punishment and the law applies retroactively, however, then “that ends the inquiry.” Id. “If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id. (internal quotation marks and alteration omitted). In conducting this examination, we consider the seven factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963). Smith, 538 U.S. at 97.
Thus, the first and potentially dispositive question in the instant case is whether the provisions requiring the paym ent of child-support arrears and r estitution as preconditions to the restoration of a felon’s right to suffrage are punitive. Inamking this determination, the task is one of statutory construction, id. at 92, which begins with legislature’s declared objective, id. at 93, and proceeds to “[o]ther formal attributes of a legislative enactm ent, such as the m anner of [the l aw’s] codification or the enforcement procedures it establishes,” id. at 94. The express declarations of the Tennessee state courts as to the statute’s purpose are also ipmortant because “state courts are the ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).
1. Section 40-29-202(b) and (c) Are Punitive in Nature.
Conducting the proper inquiry, I would hold that the challenged provisions are punitive. The legislative bill adding paym ent of restitution and child support as preconditions to the restoration of suffrage contains no express evidence regarding the Legislature’s intent. See Doe, 507 F.3d at 1003–04 (“W e first ask whether the

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Tennessee Legislature, in passing the [provisions] ‘indi cated either expressly or impliedly a preference for one label or theother,’ i.e., civil or criminal.” (quoting Smith, 538 U.S. at 93)). There is also no legislative statement of reasons or committee report indicating whether the Legislature as a whole enacted § 49-29-202(b) and (c) with a civil or punitive intent. The positioning of the challenged provisions within the “Crim inal Procedure” Title of the Tennessee Code, how ever, does tend to indicate that the provisions are punitive. Cf. Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (“[The State’s] objective to create a civil proceeding is evidenced by its placement of the Act within the [State’s] probate code, instead of the criminal code.”); Simmons v. Galvin, 575 F.3d 24, 43–44 (1st Cir. 2009) (“In exa mining Article 120[, a disenfranchisem ent provision,] on its face, there is no language indicating the . . . provision is penal. Article 120 is not in the . . . criminal code, but rather [in the] civil constitutional and statutory voter qualification provisions.” (internal quotation marks omitted)). Although placement is not always dispositive, the provisions’ appearance within the “Criminal Procedure” Title is particularly revealing in the instant case given the fact that the general provision governing the “[r]estoration of suffrage to persons convicted of infamous crimes”—i.e., the provision authorizing a felon-voter restoration scheme—is located in the Tennessee Code Title “Elections.” Tenn. Code Ann. § 2-2-139. If the Legislature had m erely regulatory intentions in enacting § 40-29-202(b) and (c), i t could have included provisions with the other reinfranchisement provisions in the “Elections” Title as well.
Perhaps the greatest indicator of the punitive intent of § 40-29-202(b) and (c), however, is the Tennessee Supreme Court’s statements regarding the State’s statutory provision that first disenfranchised felons, § 2-19-143. In striking down the retroactive application of that provision, the Tenne ssee Supreme Court concluded explicitly that “[l]aws disenfranchising convicted felons are penal.” May v. Carlton, 245 S.W.3d 340, 349 (Tenn. 2008). Because the statut ory provisions governing conditions of reinfranchisement in the instant case are sim ply provisions governing the period of disenfranchisement, I believe that the Tennessee Supreme Court, in light ofMay, would view any law that wor ks to restrict further a felon’s right to vote by, for exam ple, conditioning that right on the payment of money, as equally punitive. Cf. Gaskin v.

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Collins, 661 S.W.2d 865, 868 (Tenn. 1983) (rejecting as unconstitutional the “injustice of retroactive disenfranchisement”).
The majority appears to believe that the Tennessee courts would find the statutory provisions civil or regulatory becauseMay’s statement that disenfranchisement laws are “penal” cannot be separated from the particular question at issue in tha t case—whether the retroactive expansion of the crimes that qualify as “infamous” and thus permit disenfranchisement violated theex post facto prohibition. But in concluding that § 40-29-202(b) and (c) fall outside ofMay’s scope, the majority again fails consider the statute’s operation and takes an unduly restrictive view oMf ay. In practice, § 40-29202(b) and (c) achieve the exact same end as the Legislature’s retroactive classification of additional crimes as “infamous” in May, albeit via different means. As compared to the pre-2006 version of the law, the challenged provisions make it more difficult to have the right of suffrage restored. In concluding otherwise, the majority fails to acknowledge that § 40-29-202(b) and (c) prolong the period of clearly penal disenfranchisement. See infra Part I.C.2.
Under the present statutory scheme, as compared to the law that was in effect when the Plaintiffs were convicted, sentenced, and disenfranchised, the State denies the Plaintiffs the right to vot e solely becau se of their inability to pay outright their outstanding restitution or child support. Because the Plaintiffs would have be en otherwise entitled to vote automatically prior to the 2006 amendments, the statute in the instant case in its operation essentially expands the list of acts for which the State is authorized to disenfranchise. W hat is perhaps even m ore troubling about these provisions when compared to those that the court faced in May, however, is that the State is achieving covertly that which i t could not accom plish outright even on a prospective basis. Tennessee is not authorized to deny the right to vote for mere failure to pay an obligation, as that act is not an “infamous” crime, and the State is certainly not authorized to do so in instances where the individual has yet to be convicted of any act

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related to the alleged nonpayment.13 Yet, this is the practical effect of § 40-29-202(b) and (c).
In sum, I disagree with the majority’s conclusion that § 40-29-202(b) and (c) are not punitive in intent. The Legislature’s placem ent of the provisions within the “Criminal Procedure” Title of the Tennessee Code, coupled with the fact that the provisions prolong penal disenfranchisement, lead me to conclude that the Tennessee legislature enacted these provisions with a punitive intent.
2. Section 40-29-202(b) and (c) Are Retrospective and Disadvantage the Plaintiffs’ Rights.
Because I would conclude that § 40-29-202(b) and (c) are punitive for purposes of the state ex post facto analysis, I next turn to whether the law is “retrospective” and whether it works to “disadvantage the offender affected by it.”State v. Pike, 978 S.W.2d 904, 925 (Tenn. 1998) (internal quotation marks omitted); id. at 926 (indicating that only laws that affect substantive rights may disadvantage the offender). Here, § 40-29-202(b) and (c) are retrospective in that they apply “to events occurring before its enactment.” Pike, 978 S.W.2d at 925 (internal quotation marks omitted). The Plaintiffs were tried, convicted, sentenced, and disenfranchised prior to 2006, which was the year that the Legislature enacted the challenged provisions. The law works to disadvantage the Plaintiffs’ substantive rights by imposing upon thema greater punishment—a lengthened period of disenfranchisement—than they would have received prior to 2006. Mor e specifically, § 40-29-202(b) and (c) preclude the Plaintiffs from regaining their fundamental right of suffrage upon m ere completion of their sentence, as they would have been entitled to do under the pre-2006 framework. Instead, the provisions require the payment of m onetary obligations that the Plaint iffs cannot make. As I have emphasized repeatedly, were it not for the provisions, the Plaintiffs would now be able to vote.
13The majority also believes the fact that restitution and child-support obligations exist to serve a civil and social purpose, as opposed to a penal one, is somehow dispositive. That observationmisses the mark. It is not the requirem ent that the Plaintiffs ultim ately make these paym ents that I find unconstitutional. Rather, it is the State’s decision to condition the Plaintiffs’ ability to regain the right to suffrage on those payments that is punitive in intent.

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The majority disagrees with this conclusion. It posits that the Plaintiffs’ punishment did not change after the 2006 amendments and that § 40-29-202(b) and (c) do not amount to punishment. Again, however, this conclusion fails to recognize that § 40-29-202(b) and (c), in fact, increase thelength of the Plaintiffs’ punishment. It also fails to recognize that retroactive changes to the length of a particular punishment implicate Tennessee’s ex post facto prohibition regardless of whether the type of punishment remains constant. See State v. Pearson, 858 S.W.2d 879, 883 (Tenn. 1993) (indicating that the proper inquiry is “whether the law changes the punishm ent to the defendant’s disadvantage, or inflicts a greater punishment than the law allowed when the offense occurred”). No one contests that prior to the 2006 amendments, the Plaintiffs would have regained suffrage upon com pletion of their im prisonment, parole, and probation. Now they are disenfranchised (i.e., punished) for a longer period of tiem; i.e., until they are able (if ever) to pay their outstanding obligations. It is indisputable that this potential for an extended period of punishment was nonexistent when the Plaintiffs were first disenfranchised.

Considering the majority’s belief that a change in the length of punishm ent is

constitutionally irrelevant in the context of a different type of punishm ent, such as

imprisonment, the logical flaw becomes apparent. For example, under the Ex Post Facto

Clause of the U.S. Constitution, which provides less protection t

han the state

constitution, Tennessee courts have held that the State is prohibited fromenacting a law

that provides a prisoner with prison-release credits for good behavior (which, like

reenfranchisement, the State is not required to do) and then via subsequent legislation

enacting a law that retroactively reduces the number of credits the prisoner could earn

(in other words, impose upon the prisoner a provision that makes it harder to gain early

release). See Allen v. Campbell, No. M2001-00277-COA-R3-CV, 2002 WL 373246, at

*4 (Tenn. Ct. App. Mar. 11, 2002) (“Sentence reduction credit statutes in effect at the

time of the commission of a crime are . . . an inherent part of [a prisoner’s] sentence;

consequently, application to him of a system of sentence credits which r educes the

amount of credit he is eligible to receive, if such application effectively im poses a

greater punishment at a date after the offense, is subject to constitutional attack [under

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the Ex Post Facto Clause of the U.S. Constitution].”); see also Garrett v. Little, No. M2008-01867-COA-R3-CV, 2009 WL 2432974, at *7 (Tenn. Ct. App. Aug. 7, 2009) (same). But under the majority’s reasoning, the State would be able to do so. After all, the new law governing early-release credits would affect only the availability of early release; the punishm ent itself—imprisonment—would remain constant. Allen and Garrett make plain that this is not the law in Tennessee. Disenfranchisem ent is a mandatory part of a felon’s sentence under § 40-20-112, and Tennessee case law indicates that we must treat § 40-29-202(b)and (c) as imposing a greater punishment by extending the length of di senfranchisement—a recognized punitive m easure—and making more difficult the Plaintiffs’ ability to regain their right to vote.
Finally, my conclusion that the provisions are unconstitutional is only bolstered by the Tennessee Suprem e Court’s em phasis that the state ex post facto clause is interpreted more broadly than its federal counterpart and that disenfranchisement laws are punitive in nature. In its analysis, the majority fails to acknowledge this fact or the fact that felon disenfranchisement and the ex post facto clause constitute an area of law where the Tennessee Suprem e Court plainly has broken ranks with the fede ral Constitution on previous occasions, compare May, 245 S.W.3d at 349, with Trop v. Dulles, 356 U.S. 86, 96–97 (1958).
I believe that the Tennessee Supreme Court would deem subsections (b) and (c) of § 40-29-202 to be punitive in nature and that, when retroactively applied, they violate the Tennessee State Constit ution’s prohibition on ex post facto laws. I would hold likewise and believe that the district court erred in concluding to the contrary.
II.
For the reasons stated above, I believe the district court erred in dismissing the claims on the pleadings, and I therefore respectfully dissent.

Case: 08-6377 Document: 006110772988 Filed: 10/28/2010 Page: 1

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 08-6377
TERRENCE JOHNSON, JIM HARRIS, JOSHUA ROBERTS, Plaintiffs - Appellants,

FILED
Oct 28, 2010
LEONARD GREEN, Clerk

v.

PHIL BREDESEN, Governor of the State of Tennessee; BROOK THOMPSON, Coordinator of Elections; RILEY DARNELL, Secretary of State of Tennessee; RICHARD HOLDEN, Administrator of Elections for Shelby County; KIM BUCKLEY, Administrator of Elections for Madison County; RAY BARRETT, Administrator of Elections for Davidson County, in their official capacities,
Defendants - Appellees.

Before: MOORE and COOK, Circuit Judges; LUDINGTON, District Judge.

JUDGMENT

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

THIS CAUSE was heard on the record from the district court and was submitted on briefs without oral argument.

IN CONSIDERATION WHEREOF, it is ORDERED that the judgment of the district court is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

Case: 08-6377 Document: 00611077300 Filed: 10/28/2010 Page: 1

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Filed: October 28, 2010

Ms. Nancy G. Abudu American Civil Liberties Union Foundation 230 Peachtree Street, N.W. Suite 1440 Atlanta, GA 30303

Mr. Paul W. Ambrosius Trauger & Tuke 222 Fourth Avenue, N. Third Floor Southern Turf Building Nashville, TN 37219

Ms. Allison L. Bussell Metropolitan Department of Law 108 Metropolitan Courthouse P.O. Box 196300 Nashville, TN 37219-6300

Mr. William Helou MG Law 2525 West End Ave., Suite 1475 Nashville, TN 37203

Ms. Tricia R. Herzfeld ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212

Ms. Janet M. Kleinfelter Office of the Tennessee Attorney General P.O. Box 20207 Nashville, TN 37202

Mr. Laughlin McDonald American Civil Liberties Union Foundation 230 Peachtree Street, N.W. Suite 1440 Atlanta, GA 30303

Tel. (513) 564-7000 www.ca6.uscourts.gov

Case: 08-6377 Document: 00611077300 Filed: 10/28/2010 Page: 2
Ms. Keli J. Oliver Metropolitan Nashville Department of Law P.O. Box 196300 Nashville, TN 37219
Mr. James Irvin Pentecost Pentecost & Glenn 106 Stonebridge Boulevard Jackson, TN 38305
Mr. Danny A. Presley Shelby County Government 160 N. Main Street Suite 660 Memphis, TN 38103
Mr. John Louis Ryder Harris, Shelton, Hanover & Walsh One Commerce Square Suite 2700 Memphis, TN 38103-2555
Ms. Elizabeth Anne Sanders Metropolitan Govrnment of Nashville and Davidson County Metropolitan Courthouse Suite 108, P.O. Box 196300 Nashville, TN 37219
Mr. Jon A. York Pentecost & Glenn 106 Stonebridge Jackson, TN 38305
Re: Case No. 08-6377, Terrence Johnson, et al v. Phil Bredesen, et al Originating Case No. 08-00187
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,

Case: 08-6377 Document: 00611077300 Filed: 10/28/2010 Page: 3

Enclosures Mandate to issue.

Leonard Green, Clerk
Linda K. Martin Deputy Clerk

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRENCE JOHNSON, JIM HARRIS, )

ALEXANDER FRIEDMANN, and

)

JOSHUA ROBERTS

)

)

Plaintiffs,

)

)

vs.

)

)

PHIL BREDESEN, Governor of the State )

of Tennessee, BROOK THOMPSON, )

Coordinator of Elections, RILEY

)

DARNELL, Secretary of State of

)

Tennessee, JAMES JOHNSON,

)

Administrator of Elections for Shelby )

County, KIM BUCKLEY, Administrator )

of Elections for Madison County, and )

RAY BARRETT, Administrator of

)

Elections for Davidson County, in their )

official capacities,

)

)

Defendants.

)

Case No. 03-08-0187 The Honorable Thomas A. Wiseman, Jr., Presiding.

MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS AS TO THE CONSITUTIONAL CHALLENGES CONTAINED IN THE AMENDED COMPLAINT, BY PHIL BREDESEN, BROOK THOMPSON,
AND RILEY DARNELL
Pursuant to Fed. R. Civ. P. 12(c), Phil Bredesen, Brook Thompson, and Riley Darnell (collectively, “State Defendants”), hereby file this Memorandum in Support of their Motion for Judgment on the Pleadings as to the Constitutional Challenges Contained in the Amended Complaint. State Defendants assert that, even accepting all of Plaintiffs’ allegations as true, as a matter of law, Plaintiffs are not entitled to any relief.
PROCEDURAL HISTORY

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While atypical for a motion for judgment on the pleadings, State Defendants would like to make the Court aware of the procedural history that led to the filing of this motion.
Plaintiffs originally filed this action on February 25, 2008. On April 11, 2008, after the first Case Management Conference, Magistrate Griffin ordered the parties to reconvene on July 25, 2008. The purpose of that second conference was to give Plaintiffs time to determine whether or not they intended to employ an expert in this case and, based on that decision, set an appropriate trial date.1
During that second Case Management Conference, State Defendants voiced their desire to file this motion as quickly as possible, in hopes of resolving the threshold constitutional questions in advance of October 4, 2008, the last day to register to vote in the November election.
With the cooperation of all of the parties, Magistrate Griffin set an expedited motion schedule. The State Defendants agreed to file this Motion by August 1, 2008; Plaintiffs agreed to file their response or a cross motion by August 22, 2008; State Defendants agreed to file a reply, if necessary, by August 25, 2008; and, if a cross motion was filed, the County Defendants agreed to respond to that motion by September 5, 2008.
CLAIMS AT ISSUE IN THIS MOTION On July 17, 2008, Plaintiffs filed the Amended Complaint for Declaratory Relief, Injunctive Relief, and Nominal Monetary Damages (the “Complaint”).
1 In the interim time, some discovery was completed, and this Court ruled on the County Defendants’ motions to dismiss.
2 Case 3:08-cv-00187 Document 59 Filed 08/01/08 Page 2 of 22 PageID #: 235

The Complaint arises from the operation of Tenn. Code. Ann. §§ 40-29-202(b) and (c).2 These two statutes relate to Tenn. Code Ann. § 40-29-202(a), which provides
that a citizen convicted of a felony and deprived of the right to vote can apply for a voter
registration card and seek to regain the elective franchise upon: receiving a pardon
without any special conditions relating to suffrage; release from custody by reason of
service or expiration of the maximum sentence imposed by the court; or being granted
final discharge from supervision by the board of probation and parole, or an equivalent
discharge by another state, the federal government, or a county correction authority.
Tenn. Code. Ann. § 40-29-202(b) states,
[n]otwithstanding the provisions of subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless that person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence.
Tenn. Code. Ann. §§ 40-29-202(c) states,
[n]otwithstanding the provisions of subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person is current in all child support obligations. The Complaint alleges five constitutional violations3 in relation to these two
statutes, enumerated below:
1. Tenn. Code. Ann. § 40-29-202(b) violates the Equal Protection Clause of the
United States Constitution;
2. Tenn. Code. Ann. § 40-29-202(c) violates the Equal Protection Clause of the
United States Constitution;
2Amended Complaint at 1. 3 There are six counts in the Complaint. The sixth count alleges a due process violation in relation to Plaintiff Friedmann specifically. This count is not a facial challenge to the requirements set forth in the challenged statutes and is not at issue in this Motion.
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3. the two statues violate the Twenty-Fourth Amendment to the United States
Constitution;
4. application of the two statutes to Plaintiffs violates the Ex Post Facto Clauses
of the United States and Tennessee Constitutions; and
5. the two statutes violate the Privilege and Immunities Clauses of the United States and Tennessee Constitutions .4
SUMMARY OF ARGUMENT
First, Tenn. Code. Ann. §§ 40-29-202(b) and (c), (collectively, the “Statutes”), do
not violate the Equal Protection Clause of the United States Constitution. Felons do not have a fundamental right to vote5 and wealth qualifications do not discriminate against a suspect class.6 As a result, the requirements contained in the Statutes are only subject to
a rational basis analysis. The State has a legitimate interest in protecting the ballot box
from felons who choose to continue to violate the laws of this State by not paying
restitution to the victims of their crimes and not supporting their children by refusing to
pay their court-ordered child support obligations.
Second, the Statutes do not violate the Twenty-Fourth Amendment to the United
States Constitution (prohibiting requiring the payment of a poll or other tax prior to
voting) because child support obligations and victim’s restitution obligations are not
4 Amended Complaint at 7-11. 5 See Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 2671, 41 L.Ed.2d 551 (1974) (holding that denying convicted felons the right to vote did not violate the equal protection clause); Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (holding that convicted felons do not have a fundamental right to vote); Owens v. Barnes, 711 F.2d 25, 27 (3rd Cir. 1983), cert. denied, 464 U.S. 963, 104 S.Ct. 400, 78 L.Ed.2d 341(1983) (upholding a Pennsylvania statute barring incarcerated felons from voting but allowing unincarcerated felons to vote); Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047. 59 L.Ed.2d 90 (1979) (upholding a Texas statute granting re-enfranchisement to felons convicted in state court who successfully completed parole provisions while not granting reenfranchisement to similarly situated felons convicted in federal court). 6 See Papasan v. Allain, 478 U.S. 265, 283-84, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986) (holding that wealth classification in relation to educational spending was not subject to heightened scrutiny).
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taxes.7 In addition, even if they could be considered taxes, they are not taxes paid by
otherwise qualified individuals prior to being allowed to exercise the pre-existing right to
vote; rather, they are taxes imposed on the ability to qualify to regain the right to vote.
Thus, the Statutes fall outside of the purview of the Twenty-Fourth Amendment.
Third, the Statutes are civil statutes related to a civil regulatory scheme, and
therefore not capable of violating the Ex Post Facto Clauses of either the United States or
Tennessee Constitutions.8 In addition, the Statutes do not alter the definition of the
crimes Plaintiffs committed or increase the punishment for those crimes.
Fourth, because felons do not have the right to vote, regulation of the elective
franchise in relation to felons cannot violate the Privileges and Immunities Clause.9
STANDARD OF REVIEW
“For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973). But we “need not accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.1999). A Rule 12(c) motion “is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir.1991).10
ARGUMENT
I. Background
7 See n. 36 and 37, infra. 8 See Section IV, A, infra. 9 See Section V, infra. 10 JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581-82 (6th Cir. 2007).
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Since the ratification of the United States Constitution, four Amendments have been added that limit the power of the states to set the qualifications of voters.11 In addition to these Amendments, the Voting Rights Act of 1965 also provides several limitations on the power of the states to distribute the voting franchise.12
While these limitations act as a check on the power of the states, they stop short of usurping the states’ power to set the qualifications. Evidence of this constraint can be found in the text of the Amendments and the Voting Rights Act. Each of the Amendments forbids the denial or abridgement of the right to vote “by the United States or by any State” when speaking to the power to set qualifications for the voting franchise.13 The Voting Rights Act also speaks in terms of limiting the power of the states.14 While limiting the criteria a State may use in denying the right to vote and actually setting the qualifications of voters may produce the same results, that the framers chose one over the other textually demonstrates the desire of the framers to leave the power to set the qualifications of voters to the states.
Given that the United States Constitution only grants the right to vote to qualified citizens and leaves the determination of qualifications to the individual states,
11 See U.S. Const. amend. XV (ratified in 1870, forbidding the denial or abridgement of the right to vote on account of race, color, or previous condition of servitude); U.S. Const. amend. XIX (ratified in 1920, forbidding the denial or abridgement of the right to vote on account of sex); U.S. Const. amend. XXIV (ratified in 1964, forbidding the abridgement or denial of the right to vote on account of failure to pay any tax); U.S. Const. amend. XXVI (ratified in 1971, forbidding the denial or abridgement on account of age for citizens eighteen years of age or older). 12 See 42 U.S.C. §§ 1971-73. 13 See U.S. Const. amend. XV; U.S. Const. amend. XIX; U.S. Const. amend. XXIV; U.S. Const. amend. XXVI. (emphasis added). 14 See 42 U.S.C. § 1971(a)(1).
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constitutional challenges to state statutes setting voting qualifications are initiated primarily pursuant to the Equal Protection Clause of the United State Constitution.15
II. The Statutes Do Not Violate the Equal Protection Clause.
In Dunn v. Blumstein, the United States Supreme Court stated, “[i]n considering
laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved.”16
If the interest affected involves a fundamental right or the classification
discriminates against a suspect class, then a statute is subject to strict scrutiny, and only a compelling or substantial state interest will save it from being declared unconstitutional.17
If neither the interest affected implicates a fundamental right nor the classification
discriminates against a suspect class, then a statute is subject to a rational basis standard, which only requires a rational or legitimate state interest to be constitutionally sound.18
Finally, if a statute does not implicate a fundamental right and does not, on its face,
discriminate against a suspect class, but the statute does have a disparate impact on a
suspect class and was enacted with animus toward that class, then the statute is subject to strict scrutiny.19
Thus, the two questions relevant to this opinion are whether the Statutes implicate
a fundamental right and whether the Statutes discriminate against a suspect class.
15 See U.S. Const. amend. XIV, § 1. Compare this to the challenges brought pursuant to an affirmatively granted right, such as Free Exercise or Speech challenges brought pursuant to the First Amendment or illegal Search and Seizure challenges brought pursuant to the Fourth Amendment. While these challenges are often accompanied by an Equal Protection claim, the United States Constitution provides a dedicated vehicle to challenge the conduct pursuant to an affirmative grant of a right. 16 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972). 17 See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457, 108 S.Ct. 2481, 2487, 101 L.Ed.2d 399 (1988). 18 See Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996). 19 See Village of Arlington Heights v. Metropolitan Housing Authority, 429 U.S 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).
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A. Because the Statutes do not involve a fundamental right, do not discriminate against a suspect class, and do not disparately impact a suspect class, the rational basis test should be employed in examining them.
i. The right to vote is not a fundamental right for felons.
In ruling on challenges to state-enacted voting qualifications, the United States
Supreme Court has held that the right to vote is a fundamental right.20 In light of its
fundamental nature, the Court has held that any abridgement of the right must serve a
substantial or compelling state interest to avoid violating the Equal Protection Clause.21
The Supreme Court and several lower courts have declined, however, to subject
voting qualifications envisioned by the United States Constitution to any Equal
Protection scrutiny.22 The most prevalent example of this restraint is in the arena of felon
disenfranchisement.23 In Richardson v. Ramirez, when explaining why felon
disenfranchisement did not violate the Equal Protection Clause, the Supreme Court
stated,
[a]s we have seen, however, the exclusion of felons from the vote has an affirmative sanction in s [§] 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the
20 See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (stating, “the right of suffrage is a fundamental matter in a free and democratic society.”); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (holding that the right to vote is a fundamental political right that is preservative of all other rights). 21 See Blumstein, 405 U.S. at 335, 92 S.Ct. at 999 (striking down residency duration requirements); see also Bullock v. Carter, 405 U.S. 134, 142, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972) (striking down a primary filing fee system for candidates); Kramer v. Union Free School District, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969) (striking down statute that limits participation in school district elections to those who own property in the district and have children attending public schools); Cipriano v. City of Houma, 395 U.S. 701, 704, 89 S.Ct. 1897, 1899, 23 L.Ed.2d 647 (1969) (striking down statute that limited participation in elections to decide bond issues to property taxpayers); Harper v. Virginia State Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966) (striking down a poll tax); Reynolds, 377 U.S. at 562, 84 S.Ct. at 1381 (striking down apportionment of legislative seats). 22 See Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 2671, 41 L.Ed.2d 551 (1974). 23 See id.
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Fourteenth Amendment, as reflected in the express language of s [§] 2 and in the historical and judicial interpretation of the Amendment’s applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court.24
In reaching its conclusion, the Court did not subject felon disenfranchisement to
any level of scrutiny to determine whether it violated the Equal Protection Clause.
Instead, the Court stated,
we may rest on the demonstrably sound proposition that s [§] 1 [the Equal Protection Clause], in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which s [§] 2 imposed for other forms of disenfranchisement.25
The reasoning in Ramirez, read in conjunction with the holding in Blumstein,
compels the conclusion that, while the right to vote is a fundamental right in the majority
of cases arising from the denial of the elective franchise to a group of people, any denial
to a group of people that was envisioned by the framers and embodied in the United
States Constitution26 is not subject to any Equal Protection analysis.
The analysis in relation to this case, however, cannot end here. The assertion that
voting qualifications embodied in the United States Constitution are not subject to any
24 Id. at 54. The Court, after engaging in an exhaustive discussion of the legislative history of the Fourteenth Amendment, focused on the following language of § 2 of the Amendment: “But when the right to vote at any election ... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion[.]” See Ramirez, 418 U.S. at 42-43, 94 S.Ct. at 2665. 25 Id. 26 An example of another such qualification is the age requirement. That the Twenty-Sixth Amendment to the United States Constitution requires states to allow all otherwise qualified individuals over the age of eighteen to vote is a tacit recognition that states may bar all those under the age of eighteen. See U.S. Const. amend. XXVI. This does not bar the states from distributing the franchise to individuals less than eighteen years of age; it only means that any decision by the states not to do so would not be subject to any level of scrutiny under the reasoning in Ramirez. See Ramirez, 418 U.S. at 24, 94 S.Ct. at 2655.
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scrutiny does not relieve a state from any Equal Protection analysis related thereto. The state would only be relieved of showing any state interest in relation to the exclusion of all members of a constitutionally envisioned group (such as all felons or citizens under the age of 18). If, however, the state were to create a class of individuals by excluding some but not all members of an envisioned group, then the state would have to show an interest justifying the different treatment – the level of the state interest, again, would depend upon the classification.
While the United States Supreme Court has not considered the specific question before the Court, many lower courts have. In doing so, those courts have assumed that felon disenfranchisement is constitutional but have applied a rational basis standard in determining whether restoring the right of some but not all felons is permissible.27
All of these cases demonstrate one clear rule that is very relevant to this action: felons do not have a fundamental right to vote. The grant of that right to some felons and not others will only be analyzed under a rational basis standard, barring discrimination against a suspect class.
ii. The statute on its face does not discriminate against a suspect class.
The Statutes burden the ability of felons who are not current in their child support obligations and have not paid their court ordered victims’ restitution to participate in the elective franchise. The United States Supreme Court has never found felons who owe child support or victims’ restitution to be a suspect class.
27 See Collins, 791 F.2d at 1261 (holding that convicted felons do not possess a fundamental right to vote); Barnes, 711 F.2d at 27 (upholding a Pennsylvania statute barring incarcerated felons from voting but allowing un-incarcerated felons to vote); Trevino, 575 F.2d at 1114 (upholding a Texas statute granting reenfranchisement to felons convicted in state court who successfully completed parole provisions while not granting re-enfranchisement to similarly situated felons convicted in federal court).
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iii. The indigent are not a suspect class, and there is no proof of animus on the part of the legislature, thus barring a disparate impact claim.
The Equal Protection jurisprudence that has been developed in the federal courts
leaves open the possibility of proving a violation of the Equal Protection Clause when a
statute, while not discriminating against a suspect class on its face, disproportionately affects a suspect class.28 To succeed on a disparate-impact claim, however, plaintiffs
must plead and prove that the challenged statutes were passed with animus toward that class.29
In both Counts 1 and 2 in the Amended Complaint, Plaintiffs appear to assert that the class being discriminated against is the indigent.30 Assuming for the sake of this motion that the indigent are being discriminated against, they are not a suspect class.31
While wealth classifications in relation to qualified voters have generally been
disfavored, those cases have involved the fundamental right to vote (afforded to non-
felons, over the age of 18) and do not need to rely upon the wealth classification to invoke strict scrutiny.32 Thus, even if the Plaintiffs’ allegations that the Statutes
discriminate against the indigent, that discrimination is not against a suspect class and,
thus, would not raise the level of scrutiny applied to the Statutes.
In addition, Plaintiffs neither plead, nor can they prove, that the Tennessee
General Assembly passed the Statutes with animus toward any group.
B. Under the rational basis test, the Statutes are constitutional.
28 See Village of Arlington Heights, 429 U.S at 265, 97 S.Ct. at 563. 29 Id. 30 Amended Complaint at 7-8. 31 See Papasan, 478 U.S. at 283-84, 106 S.Ct. at 2943 (holding that wealth classification in relation to educational spending was not subject to heightened scrutiny). 32 See Virginia State Board of Elections, 383 U.S. at 668, 86 S.Ct. at 1082 (striking down a Virginia poll tax of $1.50 levied against voters for access to the polls).
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As stated above, any Equal Protection analysis is completely dependent upon the
nature of the right at issue and whether a suspect class is being denied that right. Given
that no fundamental right is implicated here, the Statutes do not facially discriminate
against any suspect class, and the Statutes will not have a disparate impact on a suspect
class and were not passed with animus toward a suspect class, the State must only demonstrate a rational basis for the classification.33
The rational basis test is very deferential to the state.34 In F.C.C. v. Beach
Communications, Inc., the United States Supreme Court stated,
a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Where there are “plausible reasons” for Congress’ action, “our inquiry is at an end.” This standard of review is a paradigm of judicial restraint.35
In addition, the burden is not on the state to show a rational basis, but rather lies with the challenger to prove that there is no rational basis.36
Here, Plaintiffs have not pled and cannot show that there is no rational basis for
the Statutes. One rational basis could be the State’s interest in protecting the ballot box
from felons who continue to break the law by not abiding by enforceable court orders.
Another basis could be that, in light of the overriding state policy promoting payment of
33 See Romer, 517 U.S. at 631, 116 S.Ct. at 1627; Collins, 791 F.2d at 1261; Barnes, 711 F.2d at 27; Trevino, 575 F.2d at 1114. 34 See F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). 35 Id. (internal citations omitted). 36 See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 964, 148 L.Ed.2d 866 (2001).
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child support obligations,37 the State has an interest in protecting the ballot box from
people who subvert this policy and neglect their own children. As to victims’ restitution
payments, the State has a legitimate interest in protecting the ballot box from people who
refuse to complete the entire sentence for the crime of which they were convicted. In
light of these rational and legitimate state interests, this Court should find that the
Statutes do not violate the Equal Protection Clause of the United States Constitution, and
dismiss Plaintiffs’ Equal Protection claims.
III. The Twenty-Fourth Amendment to the United States Constitution is Not Implicated by the Statutes.
In relevant part, the Twenty-Fourth Amendment to the United States Constitution
states,
[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
A. Court-ordered child support obligations and victim’s restitution payments are not taxes.
Black’s Law Dictionary defines a tax as, “[a] monetary charge imposed by the government on persons, entities, transactions, or property to yield public revenue.”38 In
United States v. La Franca, the United States Supreme Court stated, “[a] ‘tax’ is an enforced contribution to provide for the support of government[.]”39 Each of these
definitions has two common components relevant to this case that make a payment a tax:
37 See Berryhill v. Rhodes, 21 S.W.3d 188, 192 (Tenn. 2000) (finding that Tennessee’s child support laws indicate a public policy favoring payment of support so that children can become healthy, contributing members of society). 38 Black’s Law Dictionary (8th ed. 2004), tax. 39 See United States v. La Franca, 282 U.S. 568, 572, 51 S.Ct. 278, 280, 75 L.Ed. 551 (1931).
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it must be imposed by the government, and it must be paid to the government for use by
the government.
Here, the payments in question are child support obligations and victims’
restitution. Child support obligations are court-ordered obligations paid to the guardian
of the child or children, not the government. Victims’ restitution payments are court-
ordered obligations paid to the victims of the crime for which the felon was convicted.
Neither of these payments would qualify as a tax under the definitions above.
Both child support and victims’ restitution, while arguably are payments imposed
by the government,40 are not collected for use by or the support of government. They are,
rather, collected for use by private individuals. As such, it cannot be said that either child
support obligations or victims’ restitution obligations are taxes.41 As a result, Plaintiffs’
Twenty-Fourth Amendment claim should be dismissed.
B. Even if this Court adopts the view that child-support obligations and victims’ restitution obligations are taxes, Plaintiffs claim must fail because the payments are not a precondition to an otherwise qualified voter to vote, but rather a condition of applying to regain the right to vote.
40 It could be argued that both of these payments are not imposed by the government in the traditional sense that most taxes are imposed. They are not generally applicable payments imposed by statute, collected by the executive branches of federal or state government. They are, rather, imposed by a court, only in very select circumstances, and collected by the court. 41 To the extent that an argument could be made that the Twenty-Fourth Amendment was intended to prevent states from requiring any sort of payment (not necessarily only taxes) prior to exercising the right to vote, that argument is unconvincing.
One of the primary canons of statutory construction is to give the words their plain meaning and to interpret the statute accordingly. The Twenty-Fourth Amendment was ratified in 1964. The United States Congress and the ratifying states chose to use the word “tax” and not “payment.” In construing the amendment, this Court should assume that, in 1964, the drafters, Congress, and the ratifying states understood what a “tax” was and chose that word for a reason.
In addition, any attempt by Plaintiffs to use the language of Harper v. Virginia State Board of Elections (stating that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard”) and its progeny should be rejected out of hand by this Court. 383 U.S. at 667, 86 S.Ct. at 1081. That language was specifically applicable to Equal Protection claims and not claims pursuant to the Twenty-Fourth Amendment.
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While it is clear that the Twenty-Fourth Amendment applies only to taxes and that child support obligations and victims’ restitution obligations are not taxes, Plaintiffs’ claims pursuant to the Twenty-Fourth Amendment would fail even if this Court found that the two payments were taxes.
The Twenty-Fourth Amendment bars the State from abridging the “right of citizens…to vote…by reason of failure to pay any poll tax or other tax.” Again, in interpreting statutes, courts look to the plain language first. The plain language of the Twenty-Fourth Amendment states that the “right of citizens…to vote” cannot hinge on the payment of a tax. This language presupposes that the right exists but for the payment of the tax.42 This language also only applies to the right to vote.
Here, Plaintiffs are not claiming that they currently have the right to vote, nor are they claiming that the right was improperly taken away from them. In fact, the Statutes do not govern the right to vote at all. Instead, they govern the right to reapply for the right to vote. Because the Twenty-Fourth Amendment governs the right to vote, not the right to apply to have the right to vote restored, Plaintiffs’ claims do not implicate the Twenty-Fourth Amendment. As a result, Plaintiffs’ claim should be dismissed for this alternative reason. IV. The Statutes Do Not Violate the Ex Post Facto Clauses of the United States or
Tennessee Constitutions. Article 1, Section 11, of the Tennessee Constitution states, “[t]hat laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no
42 See Gray v. Johnson, 234 F.Supp. 743 (S.D.Miss. 1964) (stating, “[i]t was the clear intention and purpose of the Twenty-Fourth Amendment to the Federal Constitution that neither the United States, nor any state should impair the vested right of duly registered voter to vote by reason of his failure to pay poll tax.”) (emphasis added).
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Ex post facto law shall be made.” Article 1, Section 10, of the United States Constitution
states, in relevant part, “[n]o State shall…pass any…ex post facto Law[.]”
A. The Statutes are civil, non-punitive measures for the regulation of applications to have the right to vote restored.
Before even examining whether a law violates the Ex Post Facto Clause, the court
must inquire whether the challenged law is criminal and intended to impose a
punishment, is civil but “so punitive either in purpose or effect as to negate [the State's]
intention to deem it civil[,]” or is merely a civil or regulatory law.43 If the challenged law
is criminal or civil, but so punitive in purpose or effect as to negate the intention for it to
be civil, then the initial inquiry ends, and the court must engage in the two-step analysis
described below to determine whether the law is an ex post facto violation.44 If, however,
the statute is merely civil and regulatory, then the inquiry ends and the challenged law is
upheld.45
Before analyzing the statutes at issue here, it is helpful to look to the United States
Supreme Court case of Trop v. Dulles, in which Court stated,
The point [concerning differentiating punitive from civil laws] may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.46
43 Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164 (2003) (internal citations omitted). 44 See Id. 45 See Id. 46 Trop v. Dulles, 356 U.S. 86, 96-97, 78 S.Ct. 590, 596, 2 L.Ed.2d 630 (1958).
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Otherwise stated, the Supreme Court, when looking at disenfranchisement as a result of conviction of felony, found that the State’s disenfranchisement of a felon is not a punitive measure, thus not violative of the Ex Post Facto Clause.
Here, the Statutes are neither criminal nor punitive. The matter before this Court is not even whether the enactment of felon disenfranchisement laws would violate the Ex Post Facto Clause (which the United States Supreme Court has already found to be within the law); but rather, whether two statutes setting requirements for felons to comply with prior to being eligible to apply for re-enfranchisement would violate the clause. If, as the Supreme Court stated in Trop, disenfranchising felons is not a punitive act, but rather a regulatory, civil act, then it must follow that setting qualifications for re-enfranchisement (which actually grants the felons more rights than they are entitled to) of those very same felons is also a regulatory civil act. Thus, Plaintiffs’ Ex Post Facto Clause claim should be dismissed.
B. Even if the Statutes were punitive, they do not apply to events occurring before their passage as they do not disadvantage Plaintiffs further by either altering the definition of the criminal conduct or increasing the punishment for the criminal conduct.
Even if this Court were to find that the Statutes were punitive in nature, as a matter of law, the Statutes still do not violate the Ex Post Facto Clause, as they do not alter the definition of the crime or increase the punishment.
In deciding Ex Post Facto challenges to laws, both Tennessee and federal courts have established a two-step analysis. First, the law must be truly retroactive – the law must apply to events occurring before its enactment.47 Second, it must disadvantage a citizen by either altering the definition of criminal conduct or increasing the punishment
47 See Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997); State v. Ricci, 914 S.W.2d 475, 480 (Tenn.1996); Kaylor v. Bradley, 912 S.W.2d 728, 732 (Tenn.Ct.App.1995).
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for the criminal conduct.48 “The heart of the Ex Post Facto Clause, U.S. Const., Art. I, § 9, bars application of a law ‘that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed[.]”49
Here, setting the qualifications for felon re-enfranchisement neither alters the definition of the crime nor increases the punishment for the crime. The crime each of these Plaintiffs committed was a felony; neither of the challenged statutes alters the definition of a felony or of the specific crime each committed. Each plaintiff received a punitive sentence for committing the crimes each was convicted of. In addition to the punishment each received, each was also disenfranchised in an effort to protect the ballot and limit ballot access to non-felons (a constitutional exercise of the State’s inherent authority to regulate the elective franchise). Even if that were determined to be a punishment, it is not being changed or expanded by passage of the challenged statutes. Prior to passage of the challenged statutes, Plaintiffs were disenfranchised for conviction of a felony. After passage of the challenged statutes, Plaintiffs would still be disenfranchised for conviction of a felony. The only thing the two challenged statutes change is the eligibility of Plaintiffs to regain the right of suffrage. These eligibility requirements do not make Plaintiffs any more or less disenfranchised. The result of the conviction of a felony is the same prior to and after passage of the Statutes.
For this reason, even if the Court found Tennessee’s felon disenfranchisement laws to be punitive, the statutes at issue here would still not violate the Ex Post Facto Clauses of the United States and Tennessee Constitutions, and Plaintiffs’ claim should be dismissed.
48 See Lynce, 519 U.S. at 441, 117 S.Ct. at 896; State v. Pearson, 858 S.W.2d 879, 882 (Tenn.1993). 49 Johnson v. U.S., 529 U.S. 694, 699, 120 S.Ct. 1795, 1800, 146 L.Ed.2d 727 (2000)
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V. Because Felons Do Not Have the Right to Vote, Regulation of the Elective Franchise in Relation to Felons Cannot Violate the Privileges and Immunities Clause.
Plaintiffs’ final count in the Complaint relevant to this Motion is: “State
restrictions that deny the fundamental right to vote based upon failure to pay child
support and/or restitution deny rights, privileges, immunities and the protections of
equality afforded by the United States and Tennessee Constitutions.” Because felons do
not have a fundamental right to vote (the flawed premise of the allegation), Plaintiffs are
afforded no protection by the Privileges and Immunities Clause in relation to that right.
In Oregon v. Mitchell, Justice Douglas, concurring in part and dissenting in part,
directly addressed the claim made by Plaintiffs. He stated,
While the right of qualified electors to cast their ballots and to have their votes counted was held to be a privilege of citizenship in Ex parte Yarbrough and United States v. Classic, these decisions were careful to observe that it remained with the States to determine the class of qualified voters. It was federal law, acting on this state-defined class, which turned the right to vote into a privilege of national citizenship. As the Court has consistently held, the Privileges and Immunities Clauses do not react on the mere status of citizenship to enfranchise any citizen whom an otherwise valid state law does not allow to vote. Minors, felons, insane persons, and persons who have not satisfied residency requirements are among those citizens who are not allowed to vote in most States.50
In addition, the United States Supreme Court in Minor v. Happersett considered
the question of whether a state law excluding women (who were otherwise citizens) from
voting was constitutional pursuant to the Privileges and Immunities Clause. The Court
reasoned, “[i]f the right of suffrage is one of the necessary privileges of a citizen of the
United States, then the constitution and laws of Missouri confining it to men are in
50 Oregon v. Mitchell, 400 U.S. 112, 213-14, 91 S.Ct. 260, 310, 27 L.Ed.2d 272 (1970) (Justice Douglas, concurring in part, dissenting in part) (internal citations omitted).
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violation of the Constitution of the United States, as amended, and consequently void.”51 The Court, however, held that, “the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage.”52 The Court explained that the right of suffrage was conferred by the State upon its citizens.53 As a result, the Court held that the Privileges and Immunities Clause was not implicated in that case.
In addition, to this clear statement of the law as it relates to voting rights and the Privileges and Immunities Clause, the Sixth Circuit, citing Supreme Court precedent, has also held that “the Supreme Court has indicated that the Privileges and Immunities Clause of the Fourteenth Amendment affords no protection where Congress has imposed or authorized the infringement.”54
Here, Plaintiffs are felons properly stripped of the right to vote. As such, the right to vote is not a privilege of citizenship that they enjoy. As a result, the Privileges and Immunities Clause affords Plaintiffs no protection in relation to their voting rights, and their claim should be dismissed.
51 Minor v. Happersett, 88 U.S. 162, 170 (1874). 52 Id. at 178. 53 Id. at 171-73. 54 See Id.
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CONCLUSION For all of the forgoing reasons, Counts One through Five of the Complaint should be dismissed with prejudice.
Respectfully submitted, ROBERT E. COOPER, JR. Attorney General and Reporter
______________________________ WILLIAM N. HELOU (# 022839) Assistant Attorney General Special Litigation Division 425 5th Avenue North Nashville, TN 37243 (615) 253-3327 - Telephone (615) 741-2009 – Fax william.helou@ag.tn.gov
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CERTIFICATE OF SERVICE

This is to certify that I have served a copy of this memorandum of law by electronic means through the Court’s filing system to the parties listed below:

Laughlin McDonald Nancy Abudu Neil Bradley American Civil Liberties Union Voting Rights Project 2600 Marquis One Tower 245 Peachtree Center Ave., NE Atlanta, GA 30303-1227

Tricia Herzfeld American Civil Liberties Union of Tennessee P.O. Box 120160 Nashville, TN 37212

Sue B. Cain Allison Bussell 108 Metropolitan Courthouse P.O. Box 196300 Nashville, TN 37219

John L. Ryder Harris, Shelton, Hanover & Walsh, PLLC One Commerce Square Suite 2700 Memphis, TN 38103-2225

Jerome C. Teel, Jr. Teel, McCormack & Maroney 87 Murray Guard Drive Jackson, TN 38308-0668

James I. Pentecost Jon A. York 106 Stonebridge Blvd. Jackson, TN 38305

Danny Presley Deputy County Attorney 160 N. Main Street, Suite 660 Memphis, TN 38103-1812
This, the 1rst day of August, 2008.

______________________________ WILLIAM N. HELOU Assistant Attorney General

22 Case 3:08-cv-00187 Document 59 Filed 08/01/08 Page 22 of 22 PageID #: 255

 
 U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:08−cv−00187

CASE−CLOSED

Friedmann v. Bredesen et al Assigned to: Senior Judge Thomas Wiseman Referred to: Magistrate Judge Juliet E. Griffin Case in other court: 6CCA, 08−06377 Cause: 28:1332 Diversity−Declaratory Judgment
Plaintiff

Date Filed: 02/25/2008 Date Terminated: 11/10/2008 Jury Demand: Defendant Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Terrence Johnson TERMINATED: 09/22/2008

represented by Laughlin McDonald American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, NW Suite 1440 Atlanta, GA 30303 (404) 523−2721 Fax: (404) 653−0331 Email: lmcdonald@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy G. Abudu American General Life Insurance Company 2929 Allen Parkway Houston, TX 77019 (404) 523−2721 Fax: (404) 653−0331 Email: nabudu@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil Bradley 3276 Wynn Drive Avondale, GA 30002 (404) 298−5052 Email: neil.bradley.ga@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tricia Herzfeld American Civil Liberties Union of Tennessee P O Box 120160 Nashville, TN 37212 (615) 320−7142 Fax: (615) 320−7260 Email: tricia@aclu−tn.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-00187

Charles K. Grant Baker, Donelson, Bearman, Caldwell &Berkowitz, PC (Nash) 211 Commerce Street Suite 800 Nashville, TN 37201 (615) 726−5600 Email: cgrant@bakerdonelson.com TERMINATED: 07/17/2008
As of: 06/20/2011 11:24 PM CDT 1 of 11

Plaintiff Jim Harris TERMINATED: 09/22/2008
Plaintiff Alexander Friedman TERMINATED: 04/11/2008
Plaintiff Alexander Friedmann
Case: 3:08-cv-00187

represented by Laughlin McDonald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy G. Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil Bradley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tricia Herzfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles K. Grant (See above for address) TERMINATED: 07/17/2008
represented by Laughlin McDonald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy G. Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil Bradley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tricia Herzfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles K. Grant (See above for address) TERMINATED: 07/17/2008
represented by Laughlin McDonald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy G. Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil Bradley
As of: 06/20/2011 11:24 PM CDT 2 of 11

Plaintiff
Joshua Roberts TERMINATED: 09/23/2008

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tricia Herzfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles K. Grant (See above for address) TERMINATED: 07/17/2008
represented by Laughlin McDonald (See above for address) ATTORNEY TO BE NOTICED
Nancy G. Abudu (See above for address) ATTORNEY TO BE NOTICED
Neil Bradley (See above for address) ATTORNEY TO BE NOTICED
Tricia Herzfeld (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Phil Bredesen Governor of the State of Tennessee

represented by William N. Helou MGLAW, PLLC 2525 West End Avenue 14th Floor Suite 1475 Nashville, TN 37203 (615) 846−8000 Fax: (615) 846−9000 Email: wnh@mglaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Brook Thompson Coordinator of Elections

represented by William N. Helou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Riley Darnell Secretary of State of Tennessee

represented by William N. Helou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

James Johnson Administrator of Elections for Shelby County

represented by Danny Presley Shelby County Attorney's Office Deputy County Attorney

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 3 of 11

TERMINATED: 09/22/2008
Defendant Kim Buckley Administrator of Elections for Madison County TERMINATED: 09/22/2008
Defendant Ray Barrett Administrator of Elections for Davidson County, in their Official capacities

160 N Main Street Suite 660 Memphis, TN 38103 (901) 545−3308 Fax: (901) 545−4687 Email: danny.presley@shelbycountytn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John L. Ryder Harris, Shelton, Hanover &Walsh, PLLC One Commerce Square Suite 2700 Memphis, TN 38103−2555 (901) 525−1455 Email: jr156@harrisshelton.com ATTORNEY TO BE NOTICED
represented by James I. Pentecost Pentecost &Glenn, PLLC 106 Stonebridge Boulevard Jackson, TN 38305 (731) 668−5995 Email: jpentecost@pgandr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome C. Teel , Jr. Teel, McCormack &Maroney 87 Murray Guard Drive Jackson, TN 38308−0668 TERMINATED: 05/21/2008
Jon A. York Pentecost &Glenn, PLLC 106 Stonebridge Boulevard Jackson, TN 38305 (731) 668−5995 Fax: (731) 668−7163 Email: jyork@pgandr.com ATTORNEY TO BE NOTICED
represented by Allison L. Bussell Metropolitan Legal Department P O Box 196300 Nashville, TN 37219 (615) 862−6341 Email: allison.bussell@nashville.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keli J. Oliver Metropolitan Legal Department P O Box 196300 Nashville, TN 37219 (615) 862−6341 Email: keli.oliver@nashville.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 4 of 11

Date Filed 02/25/2008
02/25/2008 02/25/2008 02/26/2008 02/26/2008 02/26/2008 02/26/2008
02/26/2008 02/26/2008 02/26/2008 02/26/2008 02/28/2008
02/28/2008
02/28/2008 02/28/2008 02/28/2008

# Docket Text
1 COMPLAINT against Phil Bredesen, Brook Thompson, Riley Darnell, James Johnson, Kim Buckley, Ray Barrett, filed by Alexander Friedman, Terrence Johnson, Jim Harris.Filing fee paid $350.Summons issued. (Attachments: # 1 summons)(eh) (Entered: 02/26/2008)
2 NOTICE from USDC Clerk regarding Corporate Disclosure Statement requirement (eh) (Entered: 02/26/2008)
3 NOTICE of Initial Case Management Conference set for Monday 4/7/2008 at 10:00 AM in Courtroom 764 before Magistrate Judge Juliet E. Griffin. (eh) (Entered: 02/26/2008)
4 MOTION for attorney Nancy G. Abudu to Appear Pro Hac Vice by Alexander Friedman, Terrence Johnson, Jim Harris. (PHV fee paid) (Grant, Charles) Modified on 2/27/2008 (km). (Entered: 02/26/2008)
5 CERTIFICATE OF GOOD STANDING of Attorney Nancy G. Abudu from the United States District Court for the Middle District of Georgia filed by Alexander Friedman, Terrence Johnson, Jim Harris. (Grant, Charles) (Entered: 02/26/2008)
6 MOTION for attorney Moffatt Laughlin McDonald to Appear Pro Hac Vice by Alexander Friedman, Terrence Johnson, Jim Harris. (PHV fee paid)(Grant, Charles) Modified on 2/27/2008 (km). (Entered: 02/26/2008)
7 CERTIFICATE OF GOOD STANDING of Attorney Moffatt Laughlin McDonald from the United States District Court for the Northern of Georgia filed by Alexander Friedman, Terrence Johnson, Jim Harris. (Grant, Charles) (Entered: 02/26/2008)
8 MOTION for attorney Neil T. Bradley to Appear Pro Hac Vice by Alexander Friedman, Terrence Johnson, Jim Harris. (PHV fee paid) (Grant, Charles) Modified on 2/27/2008 (km). (Entered: 02/26/2008)
9 CERTIFICATE OF GOOD STANDING of Attorney Neil T. Bradley from the United States District Court for the Northern of Georgia filed by Alexander Friedman, Terrence Johnson, Jim Harris. (Grant, Charles) (Entered: 02/26/2008)
10 RECEIPT #34675−1502 in the amount of $150.00 posted for Moffatt Laughlin McDonald and Neil T. Bradley by Alexander Friedman, Terrence Johnson, Jim Harris re 6 and 8 Motions to Appear Pro Hac Vice. (km) (Entered: 02/27/2008)
11 RECEIPT #34675−1501 in the amount of $75.00 posted for Nancy Abdu by Alexander Friedman, Terrence Johnson, Jim Harris re 4 Motion to Appear Pro Hac Vice. (km) (Entered: 02/27/2008)
12 ORDER: Motions for Nancy G. Abudu,Moffatt Laughlin McDonald and Neil T. Bradley to Appear Pro Hac Vice 4 , 6 and 8 are granted. As provided in the notice issued contemporaneously with the filing of the complaint in this case, the ICMC is set for 4/7/08 at 10:00 a.m. Signed by Judge Juliet E. Griffin on 2/28/08. (km) (Entered: 02/28/2008)
Docket Annotation: Notification by email sent to pro hac vice attorney Nancy G. Abudu, Moffatt Laughlin McDonald and Neil T. Bradley regarding mandatory registration for a CM/ECF account. (km) Modified text on 2/29/2008 (km). (Entered: 02/28/2008)
13 SUMMONS returned executed by Alexander Friedman, Terrence Johnson, Jim Harris. Phil Bredesen served on 2/28/2008. (Grant, Charles) (Entered: 02/28/2008)
14 SUMMONS returned executed by Alexander Friedman, Terrence Johnson, Jim Harris. Riley Darnell served on 2/28/2008. (Grant, Charles) (Entered: 02/28/2008)
15 SUMMONS returned executed by Alexander Friedman, Terrence Johnson, Jim Harris. Brook Thompson served on 2/28/2008. (Grant, Charles) (Entered: 02/28/2008)

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 5 of 11

02/28/2008 03/19/2008 03/20/2008
03/20/2008 04/02/2008 04/02/2008 04/04/2008 04/07/2008 04/11/2008
04/11/2008
04/15/2008 04/17/2008 04/17/2008 04/21/2008 04/21/2008 04/22/2008 04/22/2008

16 SUMMONS returned executed by Alexander Friedman, Terrence Johnson, Jim Harris. Ray Barrett served on 2/28/2008. (Grant, Charles) (Entered: 02/28/2008)
17 State Defendants' ANSWER to Complaint by Phil Bredesen, Brook Thompson, Riley Darnell.(Helou, William) (Entered: 03/19/2008)
Note to Filer re DE #17: Pursuant to court policy and procedure, Certificates of Service must include the names and full addresses for all persons served (whether served electronically or by other means), what was served, method of service and date of service. (See Local Rule 5.01.). This document does not need to be re−filed unless otherwise directed by the Court. (km) (Entered: 03/20/2008)
18 MOTION to Dismiss and Memorandum of Law by Ray Barrett. (Bussell, Allison) (Entered: 03/20/2008)
19 RESPONSE in Opposition re 18 MOTION to Dismiss and Memorandum of Law filed by Alexander Friedman, Terrence Johnson, Jim Harris. (McDonald, Laughlin) (Entered: 04/02/2008)
20 PROPOSED CASE MANAGEMENT ORDER filed by Alexander Friedman, Phil Bredesen, Brook Thompson, Riley Darnell, Ray Barrett, Terrence Johnson, Jim Harris. (McDonald, Laughlin) (Entered: 04/02/2008)
21 NOTICE of Appearance by John L. Ryder on behalf of James Johnson (Ryder, John) (Entered: 04/04/2008)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Initial Case Management Conference held on 4/7/2008; ORDER to enter. (Tape #G2008−059.) (jwc) (Entered: 04/07/2008)
22 CASE MANAGEMENT ORDER: Written discovery to be completed by 7/18/2008; dispositive motions to be filed by 11/14/08. Case Management Conference set for 7/25/2008 at 01:00 PM. Signed by Magistrate Judge Juliet E. Griffin on 4/11/08. (gi) (Entered: 04/11/2008)
23 ORDER: The Court has approved and entered parties' proposed case management, with slight modifications. The correct surname for Alexander Friedman is "Friedmann". Clerk is directed to terminate Alexander Friedman as a pltf and to substitute therefor Alexander Friedmann. Defts Buckley and Johnson have until 4/23/08 to file responses to the complaint. Motions to amend the pleadings to be filed by 7/18/08. The case management conference is set for 7/25/08 at 1:00 PM. At the parties' option, the conference will be held in courtroom 764 or by telephone. Clerk is directed to forward the case file to Judge Wiseman for his consideration of the mtn to dismiss 18 . Clerk is directed to enter Jerome C. Teel, Jr. as counsel for deft Buckley. Signed by Magistrate Judge Juliet E. Griffin on 4/11/08. (gi) (Entered: 04/11/2008)
24 Letter from Clerk to Jerome C. Teel, Jr. re compliance with Local Rule 83.01. (km) (Entered: 04/15/2008)
25 SUMMONS returned executed by Terrence Johnson, Jim Harris, Alexander Friedmann. Kim Buckley served on 4/2/2008. (McDonald, Laughlin) (Entered: 04/17/2008)
26 SUMMONS returned executed by James Johnson. James Johnson served on 4/2/2008. (McDonald, Laughlin) (Entered: 04/17/2008)
27 NOTICE of Appearance by James I. Pentecost on behalf of Kim Buckley (Pentecost, James) (Entered: 04/21/2008)
28 NOTICE of Appearance by Jon A. York on behalf of Kim Buckley (York, Jon) (Entered: 04/21/2008)
29 MOTION to Dismiss by Kim Buckley. (Pentecost, James) (Entered: 04/22/2008)
30 MEMORANDUM in Support of 29 MOTION to Dismiss filed by Kim Buckley. (Pentecost, James) (Entered: 04/22/2008)

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 6 of 11

04/23/2008 04/23/2008 05/05/2008 05/05/2008 05/05/2008
05/12/2008 05/19/2008 05/21/2008
06/02/2008 06/04/2008 06/05/2008 06/09/2008 06/10/2008 06/23/2008 06/23/2008 06/23/2008
06/24/2008
06/30/2008 06/30/2008

31 MOTION to Dismiss by James Johnson. (Ryder, John) (Entered: 04/23/2008)
32 MEMORANDUM in Support of 31 MOTION to Dismiss filed by James Johnson. (Ryder, John) (Entered: 04/23/2008)
33 RESPONSE in Opposition re 29 MOTION to Dismiss filed by Terrence Johnson, Jim Harris, Alexander Friedmann. (McDonald, Laughlin) (Entered: 05/05/2008)
34 RESPONSE in Opposition re 31 MOTION to Dismiss filed by Terrence Johnson, Jim Harris, Alexander Friedmann. (McDonald, Laughlin) (Entered: 05/05/2008)
35 MOTION for attorney Danny Presley to Appear Pro Hac Vice I> by James Johnson. (PHV FEE PAID) (Attachments: # 1 Exhibit−Certificate of Good Standing # 2 Proposed Order to Motion for Admission Pro Hac Vice)(Ryder, John) Modified on 5/9/2008 (gi). Modified text on 6/3/2008 (km). (Entered: 05/05/2008)
36 CERTIFICATE of Compliance filed by Kim Buckley. (Pentecost, James) (Entered: 05/12/2008)
37 NOTICE by James Johnson (Notice of Compliance) (Ryder, John) (Entered: 05/19/2008)
38 ORDER: Clerk is directed to terminate Mr. Jerome Teel as counsel for deft Buckley, and to mail him a copy of this order. Pending before the Court is the motion for admission pro hac vice of Danny Presley 35 . That motion cannot be granted until the $75.00 pro hac vice admission fee has been paid. Signed by Magistrate Judge Juliet E. Griffin on 5/21/08. (cc: Jerome Teel)(km) (Entered: 05/21/2008)
39 RECEIPT #34675−2762 in the amount of $75.00 posted for Danny A. Presley by James Johnson re 35 Motion to Appear Pro Hac Vice. (km) (Entered: 06/03/2008)
40 ORDER granting 35 Motion for Danny Presley to Appear Pro Hac Vice. Signed by Magistrate Judge Juliet E. Griffin on 6/4/08. (km) (Entered: 06/05/2008)
Docket Annotation: Notification by email sent to pro hac vice attorney Danny Presley regarding mandatory registration for a CM/ECF account. (km) (Entered: 06/05/2008)
41 NOTICE by Terrence Johnson, Jim Harris, Alexander Friedmann (Abudu, Nancy) (Entered: 06/09/2008)
42 CERTIFICATE of service re 41 filed by Terrence Johnson, Jim Harris, Alexander Friedmann. (Abudu, Nancy) Modified text to add linkage on 6/11/2008 (km). (Entered: 06/10/2008)
43 MOTION and MEMORANDUM to Stay Discovery pending resolution of 31 MOTION to Dismiss by James Johnson. (Ryder, John) Modified text on 6/23/2008 (km). (Entered: 06/23/2008)
44 MEMORANDUM OPINION. Signed by Senior Judge Thomas Wiseman on 6/23/08. (km) (Entered: 06/24/2008)
45 ORDER: For the reasons stated in the accompanying Memorandum Opinion, the County Officials Motions to Dismiss 18 , 29 , and 31 are denied. The matter is referred to the Magistrate Judge for further case management as necessary and appropriate. Signed by Senior Judge Thomas Wiseman on 6/23/08. (km) (Entered: 06/24/2008)
46 ORDER Deft Johnson's 43 Motion to Stay is DENIED. The Defts shall have until 07/11/08 to file answers to the complaint. The 07/25/08, case management conference remains scheduled at 1:00 pm to be held, at counsel's option, either in Courtroom 764, U.S. Courthouse, or telephonically, to be initiated by Pltf's counsel. Signed by Magistrate Judge Juliet E. Griffin on 06/24/08. (ab) (Entered: 06/24/2008)
47 ANSWER to 1 Complaint by Kim Buckley.(York, Jon) (Entered: 06/30/2008)
48 ANSWER to 1 Complaint by Ray Barrett.(Bussell, Allison) (Entered: 06/30/2008)

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 7 of 11

06/30/2008 07/02/2008 07/15/2008 07/15/2008 07/15/2008 07/17/2008 07/17/2008 07/25/2008 07/28/2008
07/28/2008 08/01/2008 08/01/2008 08/04/2008
08/05/2008 08/06/2008

49 NOTICE of Appearance by Keli J. Oliver on behalf of Ray Barrett (Oliver, Keli) (Entered: 06/30/2008)
50 ANSWER to 1 Complaint of Defendant James Johnson, Administrator of Elections for Shelby County, Tennessee by James Johnson.(Ryder, John) (Entered: 07/02/2008)
51 (DISREGARD− See DE #52)ANSWER to Interrogatories from James Johnson by James Johnson.(Ryder, John) Modified on 7/15/2008 (km). (Entered: 07/15/2008)
52 NOTICE by James Johnson of Service of Answers to Interrogatories (Ryder, John) (Entered: 07/15/2008)
53 MOTION to Withdraw as Attorney for Plaintiffs by Terrence Johnson, Jim Harris, Alexander Friedmann. (Grant, Charles) (Entered: 07/15/2008)
54 ORDER granting 53 Motion to Withdraw as Attorney. Attorney Charles K. Grant terminated. Signed by Senior Judge Thomas Wiseman on 7/17/08. (km) (Entered: 07/17/2008)
55 MOTION to Amend/Correct Complaint by Terrence Johnson, Jim Harris, Alexander Friedmann. (Attachments: # 1 Amended Complaint)(Abudu, Nancy) (Entered: 07/17/2008)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 7/25/2008; ORDER to enter. (jwc) (Entered: 07/25/2008)
56 ORDER: 55 Motion for leave to file an amended complaint is granted. Clerk is directed to file the pltfs' amended complaint attached to the motion (Docket Entry No. [55−1]). Defts shall have until 8/8/08, to file answers to the amended complaint. The State defts shall have until 8/1/08, to file a motion for judgment on the pleadings. Any response and cross−motion shall be filed by the pltfs within 21 days of the filing of the motion or by 8/22/08, if the motion is filed on 8/1/08. The trial and pretrial conference will be set by separately entered order. Signed by Magistrate Judge Juliet E. Griffin on 7/28/08. (km) (Entered: 07/28/2008)
57 AMENDED COMPLAINT against Phil Bredesen, Brook Thompson, Riley Darnell, James Johnson, Kim Buckley, Ray Barrett, filed by Joshua Roberts, Terrence Johnson, Jim Harris, Alexander Friedmann.(km) (Entered: 07/28/2008)
58 MOTION for Judgment on the Pleadings by Phil Bredesen, Brook Thompson, Riley Darnell. (Helou, William) (Entered: 08/01/2008)
59 MEMORANDUM in Support of 58 MOTION for Judgment on the Pleadings filed by Phil Bredesen, Brook Thompson, Riley Darnell. (Helou, William) (Entered: 08/01/2008)
60 ORDER: Telephone conference call held on 7/25/08. In consultation with the office of Judge Wiseman, Jr., a Bench Trial set for 3/17/2009 at 10:00 AM. Final Pretrial Conference set for 3/6/2009 at 10:00 AM before Senior Judge Thomas Wiseman.The parties' obligations prior to the pretrial conference will set forth by separately entered order. The Clerk is directed to forward the file in this case to Judge Wiseman for his consideration of the pending motion for judgment on the pleadings and accompanying memorandum in support filed by the State defendants 58 − 59 , the plaintiffs' response to be filed by 8/22/08, along with any cross−motion, the State defendants' reply, if necessary, and response to the plaintiffs' anticipated cross−motion to be filed no later than 8/25/08, along with any response by the County defendants to the plaintiffs' cross−motion to be filed no later than 9/5/08, and any reply, if necessary, to be filed by the plaintiffs no later than 9/10/08. Signed by Magistrate Judge Juliet E. Griffin on 8/4/08. (dt) (Entered: 08/04/2008)
61 ANSWER to 57 Amended Complaint by Ray Barrett.(Bussell, Allison) (Entered: 08/05/2008)
62 ANSWER to 57 Amended Complaint by Kim Buckley.(York, Jon) (Entered: 08/06/2008)

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 8 of 11

08/06/2008 08/07/2008 08/08/2008
08/15/2008
08/22/2008 08/22/2008 08/22/2008
08/25/2008 08/25/2008 09/02/2008 09/03/2008 09/03/2008 09/03/2008 09/03/2008 09/03/2008

63 ANSWER to 57 Amended Complaint by James Johnson.(Ryder, John) (Entered: 08/06/2008)
64 Joint MOTION for Extension of Time to Complete Discovery to Disclose Experts by Phil Bredesen, Brook Thompson, Joshua Roberts, Riley Darnell, Terrence Johnson, Jim Harris, Alexander Friedmann. (Abudu, Nancy) (Entered: 08/07/2008)
65 ORDER: 64 Motion for Extension of Time to Disclose Experts is granted. The 8/8/08, deadline for the parties to disclose experts, as provided in the order entered 4/11/08, is extended to 9/5/08, for the pltfs to serve expert disclosures in accord with Rule 26(a)(2) of the Federal Rules of Civil Procedure. The 8/29/08, deadline for disclosire of rebuttal experts is extended to 9/26/08, for the defts to serve Rule 26(a)(2) disclosures for rebuttal experts. Signed by Magistrate Judge Juliet E. Griffin on 8/8/08. (km) (Entered: 08/08/2008)
66 ORDER: Bench Trial set for 3/17/2009 10:00 AM before Senior Judge Thomas Wiseman. Exhibit List due by 3/4/2009. Expert Witness List due by 3/4/2009. Pretrial Conference set for 3/6/2009 10:00 AM before Senior Judge Thomas Wiseman. Proposed Pretrial Order due by 3/4/2009. Signed by Senior Judge Thomas Wiseman on 8/15/08. (km) (Entered: 08/15/2008)
67 RESPONSE in Opposition re 58 MOTION for Judgment on the Pleadings filed by Joshua Roberts, Terrence Johnson, Jim Harris, Alexander Friedmann. (Abudu, Nancy) (Entered: 08/22/2008)
68 MOTION for Judgment on the Pleadings or in the alternative , MOTION for Partial Summary Judgment () by Joshua Roberts, Terrence Johnson, Jim Harris, Alexander Friedmann. (Abudu, Nancy) Modified text on 8/25/2008 (km). (Entered: 08/22/2008)
69 MEMORANDUM in Support of MOTION for Partial Summary Judgment by Joshua Roberts, Terrence Johnson, Jim Harris, Alexander Friedmann. (Attachments: # 1 Statement of Material Facts, # 2 Declaration of Joshua Roberts, # 3 Declaration of Terrence Johnson)(Abudu, Nancy) Modified text on 8/25/2008 (km). (Entered: 08/22/2008)
70 REPLY to Response to Motion re 58 MOTION for Judgment on the Pleadings filed by Phil Bredesen, Brook Thompson, Riley Darnell. (Helou, William) (Entered: 08/25/2008)
71 RESPONSE to Motion re 68 MOTION for Judgment on the Pleadings or in the alternative MOTION for Partial Summary Judgment filed by Phil Bredesen, Brook Thompson, Riley Darnell. (Helou, William) (Entered: 08/25/2008)
72 REPLY to Response to Motion re 68 MOTION for Judgment on the Pleadings or in the alternative MOTION for Partial Summary Judgment filed by Joshua Roberts, Terrence Johnson, Jim Harris, Alexander Friedmann. (Abudu, Nancy) (Entered: 09/02/2008)
73 NOTICE of Hearing: Hearing re Pltf's Motion for Judgment on the Pleadings or in the alternative Motion for Partial Summary Judgment 68 set for 9/15/2008 01:00 PM before Senior Judge Thomas Wiseman. (km) (Entered: 09/03/2008)
74 NOTICE: Hearing re Defts Motion for Judgment on the pleadings 58 set for 9/15/2008 at 1:00 PM before Senior Judge Thomas Wiseman. (km) (Entered: 09/03/2008)
75 RESPONSE in Opposition re 68 MOTION for Judgment on the Pleadings or in the alternative MOTION for Partial Summary Judgment filed by Kim Buckley. (York, Jon) (Entered: 09/03/2008)
76 MOTION for Summary Judgment by Kim Buckley. (Attachments: # 1 Exhibit 1 − Buckley's Response to Interrogatories and RFP, # 2 Exhibit 2 − Harris' Response to Interrogatories and RFP)(York, Jon) (Entered: 09/03/2008)
77 MEMORANDUM in Support of 76 MOTION for Summary Judgment filed by Kim Buckley. (York, Jon) (Entered: 09/03/2008)

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 9 of 11

09/03/2008

78 STATEMENT of facts filed by Kim Buckley in support of 76 Motion for Summary Judgment. (York, Jon) (Entered: 09/03/2008)

09/03/2008

79 MOTION oral argument on Motion for Summary Judgment re 76 MOTION for Summary Judgment by Kim Buckley. (York, Jon) (Entered: 09/03/2008)

09/05/2008

80 RESPONSE to Motion re 68 MOTION for Judgment on the Pleadings or in the alternative MOTION for Partial Summary Judgment and Joinder in Motion of Defendants on the Judgment on the Pleadings filed by James Johnson. (Ryder, John) Modified text on 9/8/2008 (km). (Entered: 09/05/2008)

09/08/2008

81 ORDER: 79 Motion for oral argument is denied to the extent the Court will not hear oral argument on Deft Kim Buckley's Motion for Summary Judgment on 9/15/08. Signed by Senior Judge Thomas Wiseman on 9/8/08. (km) (Entered: 09/08/2008)

09/08/2008

82 REPLY to Response to Motion re 68 MOTION for Judgment on the Pleadings or in the alternative MOTION for Partial Summary Judgment Defendant Johnson Response filed by Joshua Roberts, Terrence Johnson, Jim Harris, Alexander Friedmann. (Abudu, Nancy) (Entered: 09/08/2008)

09/08/2008

83 REPLY to Response to Motion re 68 MOTION for Judgment on the Pleadings or in the alternative MOTION for Partial Summary Judgment Defendant Buckley Response filed by Joshua Roberts, Terrence Johnson, Jim Harris, Alexander Friedmann. (Abudu, Nancy) (Entered: 09/08/2008)

09/15/2008

84 Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Hearing held on 9/15/2008 re Defts Phil Bredesen, Brook Thompson and Riley Darnell's Motion for Judgment on the pleadings 58 and Pltfs' Motion for Judgment on the pleadings or in the alternative Motion for partial summary judgment 68 . The Court hears argument and takes the matter UNDER ADVISEMENT. (Court Reporter Brian Ratekin.) (km) Modified text on 9/22/2008 (km). (Entered: 09/16/2008)

09/22/2008

85 MEMORANDUM OPINION. Signed by Senior Judge Thomas Wiseman on 9/22/08. (dt) (Entered: 09/23/2008)

09/22/2008

86 ORDER: Parties presented oral argument on their motions at a hearing conducted on 9/15/08. For the reasons set forth in the accompanying Memorandum Opinion, the Court finds that the State Officials' motion for judgment 58 is meritorious and that the defendants are entitled to judgment in their favor as a matter of law as to Counts One through Five of the Amended Complaint. Accordingly, the State Officials' motion is hereby GRANTED and Counts One through Five of the Amended Complaint are DISMISSED, leaving for adjudication only plaintiff Alexander Friedmann's due process claims under the United States and Tennessee Constitutions, set forth in Count Six of the Amended Complaint. Plaintiffs' Motion for Judgment 68 is hereby DENIED. Further, because all claims brought by plaintiff Jim Harris, the only plaintiff who is a resident of Madison County, have been dismissed, the motion for summary judgment 76 filed by defendant Kim Buckley in her official capacity as Administrator of Elections for Madison County, is hereby GRANTED. Likewise, because all claims brought by plaintiff Terrence Johnson, a Shelby County resident, have been dismissed, defendant James Johnson in his official capacity as Administrator of Elections for Shelby County is entitled to judgment in his favor as a matter of law. Accordingly, the claims against defendant Johnson are hereby DISMISSED. This matter is remanded to Magistrate Judge Griffin for such further case management as may be necessary. Signed by Senior Judge Thomas Wiseman on 9/22/08. (dt) (Entered: 09/23/2008)

09/23/2008

87 ORDER: The Clerk is directed to terminate Joshua Roberts as a Pltf. A Case Management Conference set for 10/3/2008 at 11:00 AM in Courtroom 764 before Magistrate Judge Juliet E. Griffin to address whether all discovery has been completed on the claim of Pltf Friedman in Count Six, the potential for resolution of his claim, whether any further dispositive motion will be filed, and any other matters to be addressed prior to the 03/17/09 trial. Signed by Magistrate Judge Juliet E. Griffin on 09/23/08. (ab) (Entered: 09/23/2008)

09/30/2008

88 Transcript filed for dates of 9/15/08 before Judge Wiseman. Court Reporter/Transcriber: Brian V. Ratekin, Telephone number: 615−726−2737, E−Mail Address: bvratekin@bellsouth.net. Transcript may be viewed at the court

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 10 of 11

10/03/2008 10/06/2008
11/07/2008 11/10/2008
11/10/2008 11/13/2008 11/14/2008 11/14/2008 11/20/2008 11/20/2008 10/28/2010 12/27/2010 12/29/2010 04/26/2011 05/24/2011

public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 10/9/2008. Redaction Request due 10/20/2008. Redacted Transcript Deadline set for 10/28/2008. Release of Transcript Restriction set for 12/26/2008. (km) (Entered: 09/30/2008)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Case Management Conference held on 10/3/2008; ORDER to enter. (Tape #G2008−107.) (jwc) (Entered: 10/03/2008)
89 ORDER: Case Management Conference held 10/3/08. Parties shall have until 11/10/08, to file an agreed order or stipulation of dismissal of the claims of pltf Friedmann in Count VI of the amended complaint. Signed by Magistrate Judge Juliet E. Griffin on 10/6/08. (km) (Entered: 10/07/2008)
90 STIPULATION of Dismissal Count Six of Amended Complaint by Ray Barrett, Alexander Friedmann. (Abudu, Nancy) (Entered: 11/07/2008)
91 ORDER: Upon the parties' 90 Stipulation of Dismissal, this action is DISMISSED with prejudice and the Clerk is directed to close this case on the records of the Court. Signed by Magistrate Judge Juliet E. Griffin on 11/10/08. (ab) (Entered: 11/10/2008)
92 Docket Entry No. 91 is hereby entered on the docket in compliance with Rule 58 and/or Rule 79 (a) of the Federal Rules of Civil Procedure on 11/10/08. (ab) (Entered: 11/10/2008)
93 NOTICE OF APPEAL as to 91 Order Dismissing Case by Alexander Friedmann. (Abudu, Nancy) (Entered: 11/13/2008)
USCA Case Number 08−6377, Case Mgr. Mary Patterson for 93 Notice of Appeal filed by Alexander Friedmann. (km) (Entered: 11/14/2008)
94 USCA Appeal Fees received $ 455 receipt number 34675−4924 re 93 Notice of Appeal filed by Alexander Friedmann (km) (Entered: 11/14/2008)
95 DESIGNATION of Record on Appeal by Terrence Johnson, Jim Harris, Alexander Friedmann re 93 Notice of Appeal (McDonald, Laughlin) (Entered: 11/20/2008)
96 APPEAL TRANSCRIPT ORDER by Terrence Johnson, Jim Harris, Alexander Friedmann for proceedings held on 9/15/2008 before Judge Thomas A. Wiseman, re 93 Notice of Appeal (McDonald, Laughlin) (Entered: 11/20/2008)
97 USCA OPINION/ JUDGMENT as to 93 Notice of Appeal: The judgment of the district court is AFFIRMED. (Mandate to issue) (Attachments: # 1 Cover Letter)(ab) (Entered: 10/28/2010)
98 MANDATE of USCA as to 93 Notice of Appeal filed by Alexander Friedmann. (Attachments: # 1 Cover Letter)(ab) (Entered: 12/29/2010)
Appeal Deadlines Terminated re 93 Notice of Appeal filed by Alexander Friedmann (ab) (Entered: 12/29/2010)
99 NOTICE from the U.S. Supreme Court: The petition for a writ of certiorari was filed on March 15, 2011 and placed on the docket March 21, 2011 as No. 10−1149. (ab) (Entered: 04/26/2011)
100 ORDER of the Supreme Court as to 93 Notice of Appeal: The Petition for a Writ of Certiorari is DENIED. (af) (Entered: 05/25/2011)

Case: 3:08-cv-00187 As of: 06/20/2011 11:24 PM CDT 11 of 11