RECOMMENDED FOR PUBLICATION

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

File Name: 20a0334p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MEMPHIS A. PHILIP RANDOLPH INSTITUTE; THE EQUITY 

ALLIANCE; FREE HEARTS; MEMPHIS AND WEST 

TENNESSEE AFL-CIO CENTRAL LABOR COUNCIL; THE 

TENNESSEE STATE CONFERENCE OF THE NAACP;

SEKOU FRANKLIN,

Plaintiffs-Appellees,

v.

TRE HARGETT, in his official capacity as Secretary of 

State of the State of Tennessee; MARK GOINS, in his 

official capacity as Coordinator of Elections for the 

State of Tennessee; AMY P. WEIRICH, in her official 

capacity as District Attorney General for Shelby 

County, Tennessee, 

Defendants-Appellants.

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No. 20-6141

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:20-cv-00374—Eli J. Richardson, District Judge.

Decided and Filed: October 19, 2020

Before: MOORE, GIBBONS, and READLER, Circuit Judges.

_________________

COUNSEL

ON MOTION AND REPLY: Matthew D. Cloutier, OFFICE OF THE TENNESSEE 

ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. ON RESPONSE: Ezra D. 

Rosenberg, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, 

D.C., Molly Danahy, Jonathan Diaz, Ravi Doshi, Caleb Jackson, CAMPAIGN LEGAL 

CENTER, Washington, D.C., for Appellees.

GIBBONS, J., delivered the order of the court in which READLER, J., joined, and 

MOORE, J., joined in the result. MOORE, J. (pp. 5–16), delivered a separate opinion concurring 

in the denial of a stay pending appeal.

>
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 2

_________________

ORDER

_________________

JULIA SMITH GIBBONS, Circuit Judge. We have before us defendants’ motion to 

stay the district court’s preliminary injunction barring enforcement of a statutory requirement 

that voters who registered online or by mail vote in person in the first election in which they 

vote after registration. For the following reasons, defendants’ motion is denied.

Plaintiffs are organizations involved in voter outreach in Tennessee and one individual 

Tennessee voter. Defendants are Tennessee government officials involved in election 

enforcement, each sued in their official capacity. Plaintiffs brought this suit on May 1, 2020, 

challenging the Tennessee statutory scheme that governs absentee voting. Given the expected 

increase in absentee voting in the November 2020 election due to the COVID-19 pandemic, 

there has been increased interest in the state’s absentee-voting procedures. This appeal involves 

only one of plaintiffs’ claims, which challenges a restriction on first-time voters’ ability to vote 

absentee. On June 12, 2020, plaintiffs filed a motion for a preliminary injunction seeking to

enjoin the enforcement of Tenn. Code Ann. § 2-2-115(b)(7), which prevents individuals who

registered to vote by submitting a registration form online or by mail from voting absentee 

during the first election after they had registered. On September 9, 2020, the district court

granted the preliminary injunction, finding that the restriction on first-time voters violated their 

constitutional rights. Defendants appealed and filed this motion to stay the preliminary 

injunction pending the appeal.

A stay pending appeal is a matter of judicial discretion, “not a matter of right.” Nken v. 

Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 

672 (1926)). Four factors guide our exercise of that discretion:

(1) whether the stay applicant has made a strong showing that he is likely to succeed 

on the merits; (2) whether the applicant will be irreparably injured absent a stay; 

(3) whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 3

Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “These factors are not 

prerequisites that must be met, but are interrelated considerations that must be balanced

together.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 

(6th Cir. 1991). Defendants, as the movants, bear the burden of showing that a stay is 

warranted under the circumstances. See Nken, 556 U.S. at 433–34.

Here, the strength of the final three factors of the stay analysis outweigh any probability of 

defendants’ success on the merits. Partly from defendants’ own doing, the electoral calendar 

works against their request for a stay of the district court’s preliminary injunction. The district

court issued its preliminary injunction on September 9, 2020. While that timing may have been 

out of defendants’ control, defendants did not file their appeal of the preliminary injunction 

until October 5, 2020, nearly one month after the injunction sprang into effect. And they did 

not seek a stay of the district court’s order until October 9, 2020. Plaintiffs’ response to the stay 

motion was filed October 15, 2020.

During the period between September 9, the day of issuance of the preliminary

injunction, and October 15, the day plaintiffs’ response was filed, both absentee voting and early 

in-person voting had begun in Tennessee. Plaintiffs have been working in their communities to 

inform their members and the general public about the district court’s preliminary injunction;

collectively, they have spoken to over 1,500 voters at union meetings, virtual town halls, and 

voter-registration events. On Tennessee’s official government webpage about absentee voting, 

the defendants themselves prominently state that “[p]ursuant to the September 9, 2020 Order

of the U.S. District Court, first-time voters are not required to vote in-person if they meet a 

legal reason to vote by-mail.” Absentee Voting, Tenn. Sec’y of State, 

https://sos.tn.gov/products/elections/absentee-voting (last accessed Oct. 17, 2020).

Given this situation, the injury to potential voters, who have relied on communications 

from defendants and local election officials, is great. Moreover, disrupting the new rules at this 

point poses significant risk of harm to the public interest in orderly elections. In this instance, 

there is no substantial harm to defendants in continuing to comply with rules they are currently 

following.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 4

It is well-established that “lower federal courts should ordinarily not alter the election rules 

on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct.

1205, 1207 (2020) (per curiam) (citing Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006)); see also

Democratic Nat’l Comm. v. Bostelmann, --- F.3d ---, 2020 WL 5951359, at *1 (7th Cir. Oct. 8, 

2020) (per curiam); New Ga. Project v. Raffensperger, --- F.3d ---, 2020 WL 5877588, at *3 

(11th Cir. Oct. 2, 2020). Consistency in the weeks ahead of an election is important to avoid

voter confusion. See A. Philip Randolph Inst. of Ohio v. LaRose, --- F. App’x ---, 2020 WL 

6013117, at *3 (6th Cir. Oct. 9, 2020) (“The public interest would be best served by consistent 

rules regarding how to vote during the pendency of this lawsuit.”). Considering that both

plaintiffs and defendants have widely publicized the district court’s order in this case and that

voting is well underway in Tennessee, a stay of the district court’s preliminary injunction at this 

point would substantially injure the plaintiffs and is not in the public’s best interest.

Defendants’ motion for stay is denied. Their appeal will be considered under the agreedupon timeline submitted by the parties and previously ordered by the Court.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 5

_________________

CONCURRENCE

_________________

KAREN NELSON MOORE, Circuit Judge, concurring in the denial of a stay. Legal 

challenges to state election laws implicate unique equitable considerations where granting relief 

immediately before an election might risk confusing voters or disincentivizing voter turnout. See 

Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). Often—too often, some say—the federal courts of 

review have concluded that these considerations favor staying district court orders that have 

preliminarily enjoined state election laws ahead of an election, even if those laws are likely to be 

deemed unconstitutional after adversarial proceedings have run their course. Our ruling today, 

however, demonstrates that the equities do not always require that result. At least where 

disturbing a lower court order that has been in place for a substantial period of time in the lead 

up to an election could result in voter confusion and the state has not offered sound reasons to 

justify that risk, the equities do not support staying the order pending appeal, even with an 

election looming.

On September 9, 2020, the district court issued an order preliminarily enjoining Tennessee 

from enforcing a law requiring certain voters who submitted their voter registration online or by 

mail to “appear in person to vote in the first election the person votes in after such registration 

becomes effective” even if they otherwise qualify to vote by mail. Tenn. Code § 2-2-

115(b)(7)(A). Defendants—Tennessee’s Secretary of State and the Coordinator of Elections for 

the Division of Elections for the Tennessee Department of State (the “Coordinator of 

Elections”)—did not seek a stay of the district court’s order in this court until October 9, 2020, 

when they filed the instant “emergency” motion for a stay pending appeal.

While Defendants waited, absentee voting has been well underway in Tennessee. Firsttime Tennessee voters who would have had to vote in person have cast their ballots by mail 

instead in reliance on the district court’s order. The state, the media, and voter outreach 

organizations have informed first-time voters that they are no longer required to vote in person 

the first time that they vote in an election. Granting a stay now, with the November 3, 2020 

General Election less than a month away, risks introducing confusion into Tennessee’s electoral 
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 6

process. Defendants have not convinced us that there is any sound reason to do so. Put simply, 

Defendants’ motion for a stay pending appeal is too little, too late.

I. BACKGROUND

Tennessee grants voters that fall within enumerated categories the right to “vote absentee 

by mail.” Tenn. Code § 2-6-201. For example, Tennesseans may vote absentee by mail if they 

will be outside the county where they are registered during the voting period, id. § 2-6-201(1)–

(2), if they will be observing a religious holiday, id. § 2-6-201(8), if they will be serving as a 

juror, id. § 2-6-201(4), if they are over sixty years of age, id. § 2-6-201(5)(A), or if they are 

persons who are hospitalized or ill, persons with physical disabilities, or caretakers for such 

persons, id. § 2-6-201(5)(C)–(D). Tennessee has recently interpreted the latter criteria to 

encompass “persons who have underlying medical or health conditions which render them more 

susceptible to contracting COVID-19 or [are] at greater risk should they contract it . . . , as well 

as those who are caretakers for persons with special vulnerability to COVID-19.” See Fisher v. 

Hargett, 604 S.W.3d 381, 385 (Tenn. 2020). In short, Tennessee authorizes voters to vote 

absentee by mail where voting in person would result in hardship, if not be entirely out of the 

question.

For some first-time voters, Tennessee places a further limitation on the right to vote 

absentee by mail. Specifically, Tennesseans who register to vote by submitting a registration 

form by mail or online must “appear in person to vote in the first election the person votes in 

after such registration becomes effective” and present “satisfactory proof of identity.” Tenn. 

Code §§ 2-2-115(b)(7)(A), 2-2-112.1 With limited exceptions, this “first-time voter 

requirement” applies even if the first-time voter would otherwise qualify to vote absentee by 

mail. See id. § 2-2-115(b)(7).

Plaintiffs are a registered Tennessee voter and five organizations engaged in voter 

outreach in Tennessee with members who wish to vote absentee by mail. They initiated this suit 

on May 1, 2020, filing a complaint challenging various aspects of Tennessee’s absentee voting 

1The first-time voter requirement does not apply to voters who register to vote in person at a county 

election commission office. See id. §§ 2-2-109, 2-2-115(b)(7)(A).
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 7

laws. R. 1 (Compl.) (Page ID #1–33). On June 12, 2020, Plaintiffs amended their complaint to 

add a claim that the first-time voter requirement violates the fundamental right to vote protected 

by the First and Fourteenth Amendments. R. 39 (Am. Compl. at ¶¶ 92–96) (Page ID #155). 

That same day, Plaintiffs moved the district court for a preliminary injunction prohibiting 

Defendants from enforcing the first-time voter requirement. R. 40-1 (Proposed Order at 2) (Page 

ID #164).2

On September 9, 2020, the district court granted Plaintiffs’ motion and issued a 

preliminary injunction order providing that:

Defendants and their officers, agents, employees, servants, attorneys, and all 

persons in active concert or participation with them are hereby enjoined and 

restrained, pending further order of the Court, from enforcing the first-time voter 

restriction, meaning, primarily and among other things, that with respect to firsttime voters who registered to vote in Tennessee by mail or online, the eligibility 

to vote by mail shall be made without reference to the requirement set forth in 

Tenn. Code Ann. § 2-2-115(b)(7).

R. 80 (Order) (Page ID #2637–38) (footnote omitted). The district court further ordered 

Defendants to “publicize the relief granted by this Order by all reasonable means, including a 

notice prominently place [sic] on Defendant Hargett’s website.” Id. (Page ID #2638).

Defendants waited almost a month to appeal the district court’s September 9, 2020 order, 

filing their notice of appeal on October 5, 2020. R. 108 (Notice of Appeal) (Page ID #2791). 

Then, on October 9, 2020, Defendants filed the instant motion for an emergency stay pending 

appeal, arguing that a stay is warranted because they are likely to succeed on appeal and the 

equities favor staying the district court’s preliminary injunction until after the General Election. 

App. R. 4 (Emergency Mot. to Stay).3 In support of their emergency stay motion, Defendants 

2Plaintiffs also sought to enjoin “(1) Tennessee’s enforcement of the Eligibility Criteria for mail-in voting, 

Tenn. Code § 2-6-201, (2) Tennessee’s enforcement of a statute criminalizing the unsolicited distribution of requests 

for an application to vote by mail, see Tenn. Code § 2-6-202(c)(4), [and] (3) Tennessee’s existing signature 

verification procedures for mail-in voting . . . .” The district court denied Plaintiffs’ motion as it related to these 

other aspects of Tennessee’s absentee voting laws. See R. 66 (Mem. Op. & Order); R. 77 (Mem. Op. & Order). 

This court, in a 2-1 decision, recently upheld that denial as to Tennessee’s signature verification process for absentee 

ballots. Memphis A. Philip Randolph Inst. v. Hargett, --- F.3d ----, 2020 WL 6074331 (6th Cir. 2020).

3Defendants filed a simultaneous motion for expedited briefing, which called for (1) Defendants to file 

their opening brief on October 16, 2020; (2) Plaintiffs to file their response on October 23, 2020; and (3) Defendants 
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 8

filed a declaration by the Coordinator of Elections, which provided that (1) since the district 

court’s injunction went into effect, the state “has received absentee ballots from first-time, mailregistered voters who would previously have been unable to vote by mail” and (2) “the State will 

attempt to minimize any further confusion that a stay of the injunction might cause by counting 

valid absentee ballots that first-time voters have already returned while the injunction has been in 

effect.” App. R. 4-2 (Goins Decl. at ¶¶ 3–4).

Plaintiffs responded on October 15, 2020. They argued that a stay was inappropriate 

because Defendants are unlikely to succeed on the merits of their appeal and that the equities do 

not favor the issuance of a stay. In particular, Plaintiffs point out that since the district court 

issued its preliminary injunction, there have been significant efforts to inform voters that the 

first-time voter requirement is no longer in effect for the General Election and that reinstating the 

requirement could lead to confusion among voters and the public more generally.4 Defendants 

filed a reply on October 19, 2020.

II. STANDARD OF REVIEW

A stay pending appeal “‘is not a matter of right.’” Nken v. Holder, 556 U.S. 418, 433 

(2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). Rather, it is “‘an 

exercise of judicial discretion.’” Id. (quoting Virginian Ry. Co., 272 U.S. at 672). Four factors 

guide our exercise of that discretion:

(1) whether the stay applicant has made a strong showing that he is likely to 

succeed on the merits; (2) whether the applicant will be irreparably injured absent 

a stay; (3) whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies.

Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “These factors are not 

prerequisites that must be met, but are interrelated considerations that must be balanced 

together.” Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 

to file their reply on October 26, 2020. App. R. 5 (Mot. Expedite at 3). We granted this motion and scheduled 

briefing in accordance with Defendants’ proposal. App. R. 8 (Order).

4Absentee Voting, Tenn. Sec’y of State, https://sos.tn.gov/products/elections/absentee-voting (last accessed 

Oct. 19, 2020); R. 112-1 (Lichtenstein Decl. at ¶¶ 2–5) (Page ID #2824–25); R. 112-2 (Sweet-Love Decl. at ¶¶ 3–7) 

(Page ID #2828).
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 9

153 (6th Cir. 1991). Defendants, as the movants, bear the burden of showing that a stay is 

warranted under the circumstances. See Nken, 556 U.S. at 433–34. They have failed to carry 

that burden here.

III. DISCUSSION

Typically, the first two stay factors are the “most critical.” Id. at 434. However, election 

cases implicate unique equitable considerations more relevant to the latter two factors. In this 

case, it is appropriate to address the considerations unique to election cases first, before 

addressing Defendants’ contentions that they will be irreparably harmed absent a stay and that 

they are likely to succeed on appeal.

A. Equitable Considerations

So far as election cases go, this is an uncommon one. Typically, where a lower court 

enjoins a state election law in the lead up to an election, the appeals court is immediately 

confronted with the state’s appeal and its customary request for a stay pending that appeal. In 

the context of these immediate applications for relief, the Supreme Court “has repeatedly 

emphasized that lower federal courts should ordinarily not alter the election rules on the eve of 

an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 

(2020) (per curiam) (citing Purcell, 549 U.S. 1). That is not to say that the Court has outright 

forbidden lower courts from issuing orders that enjoin the enforcement of state election laws 

immediately before an election. See id. But the Court has directed the lower courts to carefully 

consider whether issuing such an order risks voter confusion or disincentivizing voter turnout 

before they do so. See Purcell, 549 U.S. at 4–5. Rightly or wrongly, this “Purcell doctrine” has 

inspired a string of cases where the federal courts of review have stayed lower court orders 

enjoining state election laws with an election imminently approaching. See, e.g., Democratic 

Nat’l Comm. v. Bostelmann, --- F.3d ----, 2020 WL 5951359 (7th Cir. 2020) (per curiam); New 

Ga. Project v. Raffensperger, --- F.3d ---, 2020 WL 5877588 (11th Cir. 2020).

Here, the district court’s order altered Tennessee’s election laws just under two months 

before the November 3, 2020 General Election. Rather than seeking immediate relief in this 

court, Defendants continued to litigate the issue in the district court. It was not until thirty days 
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 10

had passed from the date the district court issued its preliminary injunction that Defendants filed 

their emergency motion for a stay pending appeal in this court. As things now stand, the Purcell

doctrine does not counsel in favor of a stay, even assuming it ever did.

Because of Defendants’ delay in seeking relief in this court, the district court’s order has 

effectively displaced Tennessee’s first-time voter requirement as the status quo for the November 

3, 2020 General Election. See Ohio State Conf. of N.A.A.C.P. v. Husted, 769 F.3d 385, 389 (6th 

Cir. 2014) (denying a stay in an election case and remarking that “informally the status quo has 

already changed”). For those who qualify to vote absentee by mail, the election is already under 

way—they have been able to request and cast their absentee ballots since ninety days before 

election day. Tenn. Code § 2-6-202(a)(1), (g). Indeed, since the district court issued its 

preliminary injunction, first-time voters who would have had to vote in person under the firsttime voter requirement have submitted their absentee ballots by mail to be counted. App. R. 4-2 

(Goins Decl. at ¶¶ 3–4).5 By committing to count those votes, Defendants tacitly acknowledge 

that reinstating the first-time voter requirement could lead to confusion for those voters, who 

would be left uncertain as to whether their already-cast absentee ballots would be counted. See 

id. This contradicts Defendants’ argument that a stay is warranted because it would prevent 

voter confusion. Indeed, Defendants point to no evidence suggesting that voters have been 

confused by the district court’s order, despite the fact that it has been more than a month since 

that order issued. More broadly, staying the district court’s order and reinstating the first-time 

voter requirement could lead to confusion for first-time voters who planned to, but have not yet 

submitted their absentee ballots. Given that there are approximately 128,000 first-time voters in 

Tennessee to whom the first-time voter requirement would apply, R. 79 (Mem. Op. & Order at 

57 n.39) (Page ID #2634), the confusion caused by a stay of the district court’s order at this 

juncture could be relatively widespread. This confusion could lead to frustration and, 

conceivably, to voters’ decisions not to partake in an ever-changing process. See Purcell, 

549 U.S. at 4. Thus, Purcell does not counsel in favor of a stay.

5Defendants’ suggestion that these votes are the result of confusion stemming from the district court’s 

order is not well taken. The district court order allowed first-time voters who otherwise qualified to vote absentee 

by mail in Tennessee to do so. By voting absentee by mail, those voters were acting in accord with the district 

court’s injunction—there is no confusion to point to.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 11

In sum, at least this long after the district court enjoined Tennessee’s first-time voter 

requirement, the equities do not favor a stay.6 Thus, Defendants have failed to carry their burden 

to show the equities favor staying the district court’s order.

B. Irreparable Injury

Defendants dedicate all of a single, seven-line paragraph to their argument that they will 

be irreparably harmed in the absence of a stay. Their argument rests solely on the grounds that 

“the State’s sovereignty is irreparably harmed anytime action taken by its democratically elected 

leaders is enjoined.” R. 4 (Emergency Mot. to Stay at 18) (citing Abbott v. Perez, 138 S. Ct. 

2305, 2324 (2018); Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers)). But 

if that alone were sufficient to warrant a stay, the rest of the stay factors would be meaningless, 

and a state would be entitled to a stay pending appeal any time a lower court enjoined its statutes. 

That plainly not being the case, it is clear here that Defendants have not made a particularly 

persuasive showing of irreparable harm. Indeed, they have not presented any actual evidence of 

other harms commonly argued in election cases, such as an increased risk of voter fraud,7 voter 

confusion, or a disruption to the orderly processing of an election. See, e.g., Ohio State Conf. of 

N.A.A.C.P., 769 F.3d at 389. Given that Defendants had thirty days to marshal such evidence 

before they filed the instant motion and failed to do so, and that Defendants waited that long to 

file their motion in the first place, any harm Defendants may suffer in the absence of a stay will 

be relatively insubstantial.

C. Likelihood of Success on Appeal

The final factor is Defendants’ likelihood of success on appeal. Given that the equities do 

not support a stay and any harm suffered by Defendants without one would be minimal, this 

factor must be weighed accordingly. But it does not follow from Defendants’ poor showing on 

6This is not to suggest that the equities would have favored a stay had Defendants immediately sought 

relief in this court.

7

It is worth mentioning that Defendants likely would be unable to show a significant risk of voter fraud 

resulting from leaving the preliminary injunction in place. In purporting to comply with the district court’s order, 

Defendants have implemented a requirement by which many first-time mail-registered voters who vote absentee by 

mail must submit a copy of their identification when they submit their ballot in order to have it counted.
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 12

the other factors that we need not consider the merits at all. Just as the merits are one among the 

factors a district court must consider in deciding whether to issue a preliminary injunction, so are 

they a factor we must consider in determining whether to issue a stay. See Griepentrog, 

945 F.2d at 153 (the stay “factors are not prerequisites that must be met, but are interrelated 

considerations that must be balanced together”); Nken, 556 U.S. at 434 (“There is substantial 

overlap between these and the factors governing preliminary injunctions . . . .”). Even a strong 

showing on the equitable considerations—including those that sometimes counsel against court 

interference with election rules on the eve of an election—is not a per se bar to relief where the 

merits weigh in favor of it. Here, however, Defendants have not carried their burden to make a 

“strong showing” that they are likely to succeed on appeal, or at least a strong enough showing to 

outweigh the equitable considerations that suggest that a stay is inappropriate. 

Defendants present three arguments for why they are likely to succeed on appeal. Each 

involves the assertion of a legal error committed by the district court in determining that 

Plaintiffs are likely to succeed on the merits of their claim that the first-time voter requirement 

unconstitutionally burdens the right to vote protected by the First and Fourteenth Amendments. 

We would analyze these arguments under a de novo standard of review on direct appeal. See

City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc).

First, Defendants argue that they are likely to succeed on appeal because the district court 

erred in concluding that Plaintiffs had demonstrated a likelihood of establishing standing. See

Waskul v. Washtenaw Cnty. Cmty. Mental Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018) 

(likelihood of success on the merits “‘necessarily includes a likelihood of the court’s reaching 

the merits, which in turn depends on a likelihood that plaintiff has standing’”) (quoting Nat’l 

Wildlife Fed’n v. Burford, 835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring in part) 

(original emphasis)). The district court concluded that at least the Tennessee NAACP—as a 

representative of its members—had standing to pursue Plaintiffs’ constitutional challenge to the 

first-time voter requirement. See Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 623 

(6th Cir. 2016) (“When one party has standing to bring a claim, the identical claims brought by 

other parties to the same lawsuit are justiciable.”). The district court based its conclusion on a 

finding that Corey Sweet, an apparent Tennessee NAACP member, would have standing to 
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 13

challenge the first-time voter requirement in his own right because the law applied to him and 

would have prevented him from voting absentee by mail in either the August 2020 primary or 

November 2020 General Election. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), 

Inc., 528 U.S. 167, 181 (2000) (“An association has standing to bring suit on behalf of its 

members when its members would otherwise have standing to sue in their own right, the interests 

at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief 

requested requires the participation of individual members in the lawsuit.”).

The trouble with Defendants’ standing argument—at least as presented to us in their 

emergency motion to stay—is that it ignores the rule that standing is determined “at the time that 

its complaint was filed.” Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 525 (6th 

Cir. 2001). Plaintiffs filed their constitutional claim challenging the first-time voter requirement 

on June 12, 2020. R. 39 (Am. Compl. at ¶¶ 92–96) (Page ID #155). Thus, standing is to be 

determined as of that date. Cleveland Branch, N.A.A.C.P., 263 F.3d at 525. Yet, in their 

emergency motion for a stay pending appeal, Defendants’ standing arguments largely focus on 

changes to Sweet’s circumstances after June 12, 2020, and call into question whether he is 

currently qualified to vote absentee by mail, such that the first-time voter requirement has any 

effect on him. Defendants’ arguments thus miss the mark when it comes to standing, because 

changes in circumstances that occur after a claim is filed are irrelevant to the standing inquiry. 

See id. Whatever the merits of a better developed and properly focused standing argument might 

be after a full round of appellate briefing, Defendants have not made a persuasive showing at this 

juncture that their standing argument is likely to succeed on appeal.

Second, Defendants argue that even if Plaintiffs once had standing, their claims are now 

moot. “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties 

lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 

(1969). “The heavy burden of demonstrating mootness rests on the party claiming mootness.” 

Cleveland Branch, N.A.A.C.P., 263 F.3d at 531. Defendants did not directly raise this question 

below.

The problem with Defendants’ mootness argument as presented to us here is that it boils 

down to an assertion that Plaintiffs lack a “legally cognizable interest” because Sweet is no 
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 14

longer qualified to vote absentee by mail such that he has an interest in the outcome of the case. 

Sweet, however, is not a party, and mootness turns on whether the parties have a legally 

cognizable interest in the outcome of the case. Powell, 395 U.S. at 496. Fair enough, it was 

Sweet’s interest that the district court found sufficient to demonstrate a likelihood of establishing 

standing, but our cases suggest that even if Sweet in fact no longer has an interest in the case—

which we need not comment on here—that would not render Plaintiffs’ claims moot. See 

Cleveland Branch, N.A.A.C.P., 263 F.3d at 257; Waskul, 900 F.3d at 257 (reading Cleveland 

Branch, N.A.A.C.P. as “appearing to hold that even if a named member’s claims had become 

moot, the association retained standing because the named member had standing at the outset of 

the litigation”). Defendants do not meaningfully engage with this authority. Even if they had, 

mootness does not prevent a case from proceeding where the relevant “injury is capable of 

repetition, while evading review.” A.C.L.U. of Ohio, Inc. v. Taft, 385 F.3d 641, 646 (6th Cir. 

2004). And Defendants have not explained why that principle would not apply here, which is 

particularly problematic given that injuries to voting rights are particularly “capable of repetition, 

yet evading review.” See id. at 646–47. At this stage, it was Defendants’ burden to make a 

“strong showing” that they are likely to succeed on appeal. Nken, 556 U.S. at 433–34. By 

failing to address key questions on their mootness argument, Defendants have failed to carry that 

burden.

Third, Defendants argue that they are likely to succeed on appeal because they contend 

that the district court misapplied the standard for determining whether a state voting regulation 

impermissibly burdens the fundamental right to vote. To determine Plaintiffs’ likelihood of 

success on their constitutional challenge to the first-time voter requirement, the district court 

applied the balancing test set forth by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 

780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Under the Anderson-Burdick

standard, “the rigorousness of our inquiry into the propriety of a state election law depends upon 

the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” 

Burdick, 504 U.S. at 434. The district court first concluded that the first-time voter requirement 

placed a “moderate” burden on the right to vote, such that an intermediate level of constitutional 

scrutiny applied. It then concluded that the first-time voter requirement did not survive the level 
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 15

of scrutiny called for under Anderson-Burdick. Defendants now argue that the district court 

erred at both steps.

Defendants first argue that the first-time voter restriction places only a minimal burden on 

the right to vote, such that the district court should have applied the forgiving rational basis 

standard to Plaintiffs’ constitutional challenge. Again, however, Defendants’ argument is not 

well-developed enough to demonstrate a likelihood of success on appeal. On this point, 

Defendants rely solely on the assertion that there is no constitutional right to vote absentee as 

their basis for asserting (without further analysis) that the first-time voter requirement places a 

minimal burden on the constitutional right to vote. In the face of a lengthy rejection of this very 

argument by the district court, Defendants have not made a “strong showing” that they are likely 

to succeed on their appeal.

Next, Defendants argue that even if the first-time voter restriction does moderately burden 

the right to vote, the district court ignored their argument that the state’s interest in protecting 

against voter fraud justifies that burden. Again, Defendants fail to grapple with the issues raised 

by the district court. It is true that the district court found that Defendants had not attempted to 

justify the first-time voter restriction as a means of preventing voter fraud. R. 79 (Mem. Op. & 

Order at 51–52) (Page ID #2628–29). However, the district court did note that even if 

Defendants had raised the issue, “they would have encountered difficulties at [the next step] of 

the Anderson-Burdick analysis, because they have not explained how requiring first-time, mailregistered voters to submit the required identification in person when voting helps prevent 

fraudulent voting to any greater extent than requiring the submission of such identification with 

mailed-in ballots.” Id. at 52 n.37 (Page ID #2629). At the very least, this point should have been 

addressed by Defendants in their motion for a stay given that, in implementing the district court’s 

injunction, Defendants have implemented a requirement that at least some first-time absentee 

voters mail in proof of identification along with their ballots.8 In failing to do so, Defendants 

once again failed to meet their burden for a stay.

8

Information for First-Time Voters Who Registered by Mail, Tenn. Sec’y of State, 

https://sos.tn.gov/products/elections/information-first-time-voters-who-registered-mail (last accessed Oct. 19, 2020).
No. 20-6141 Memphis A. Philip Randolph Inst. v. Hargett Page 16

IV. CONCLUSION

In sum, Defendants have failed to satisfy their burden to show that a stay of the district 

court’s order preliminarily enjoining the first-time voter requirement is warranted. The equities 

do not support the issuance of a stay, any harm that Defendants may suffer is minimal, and 

Defendants have not made a “strong showing” that they are likely to succeed on appeal.

ENTERED BY ORDER OF THE COURT

___________________________________

Deborah S. Hunt, Clerk