In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy. The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1] Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.
Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2] As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours. If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it. If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.
The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures. In the 1991 case County of Riverside v. McLaughlin,500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional. Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place. However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:
“First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]“
This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring. There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted. Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).
[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).
[3]The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.
[4] Horwitz, supra, at 522–23 (citations omitted).
In a 3-1 decision, the Tennessee Supreme Court has ruled that petitions for writ of error coram nobis filed pursuant to Tenn. Code Ann. § 40-26-105 can no longer be used to challenge guilty pleas. The Court’s decision in Frazier v. State formally overturns its prior decision in Wlodarz v. State,[1] which the Court decided on precisely the same issue just four years ago.
Frazier marks yet another step in the Court’s increasingly activist efforts to overturn past precedent and eschew stare decisis in cases that bolstered the rights of the accused under Tennessee law. Following the recent departure of Justices Gary Wade and Janice Holder, the Tennessee Supreme Court’s new conservative majority has aggressively sought to limit and overturn earlier rulings that established protections for criminal defendants—even, in some instances, when both the government and defendants agreed that certain rights existed.[2] The Court’s recent decisions following this approach have run the gamut from issues involving jury instructions to narrowing the means by which defendants are permitted to prove that they suffer from an intellectual disability. Perhaps most controversially, however – at least for the moment – in May 2016, the Court issued its decision in State v. McCormickon the “community caretaking doctrine,” which created a new exception to the warrant requirement in Tennessee and overturned the Court’s prior decision in State v. Moats on the very same question barely three years earlier.[3]
The specific issue involved in Frazier was Tennessee’s coram nobis statute, which is codified at Tenn. Code Ann. § 40-26-105. Coram nobis is a venerable common law writ dating back to sixteenth century England that has been used throughout the United States to cure injustice when no other procedural mechanism was available. Perhaps the most famous example of the writ’s issuance in recent history is the posthumous exoneration of George Stinney Jr. in 2014– a 14-year-old black child who was executed in South Carolina in 1944 after being convicted of a capital crime that he did not commit. Broadly speaking, however, from a historical perspective, “the common law writ of error coram nobis has served as a ‘gap-filler’ which was invoked ‘to rectify a recognized wrong when all other possible remedies [we]re no longer available.’”[4]
Frazier involved a defendant who pleaded guilty to second degree murder in 2004. In 2011, he sought coram nobis relief from his conviction based on newly discovered evidence. It is not clear from the court’s opinion what the newly discovered evidence was, but suffice it to say that defendants sometimes do plead guilty to crimes that they did not commit or plead guilty for other reasons that are unrelated to their guilt. As a result, most people agree that some type of relief should be available to defendants who can make a credible showing that they are innocent of a crime for which they pleaded guilty, were unlawfully coerced or threatened into pleading guilty, or pleaded guilty as a result of some other constitutional infirmity. Based on a variety of limitations that require defendants to assert such claims quickly after their pleas are accepted or else lose them forever, however, there is often no procedural mechanism available to defendants who seek to prove the illegitimacy of a guilty plea several years after it was entered. Thus, in such situations, it is natural for a defendant to turn to the writ of error coram nobis for relief when no other remedy is available.
The only question at issue in Frazier was “whether a criminal defendant who pleads guilty may later attack that plea by seeking error coram nobis relief.”[5] The uncertainty arose out of Tenn. Code Ann. § 40-26-105’s use of the word “trial” – rather than a more general term like “hearing” or “proceeding” – which at least plausibly lends itself to the conclusion that guilty pleas were intended to be excluded from the statute’s ambit. Specifically, the relevant section of Tennessee’s coram nobis statute provides:
The relief obtainable . . . shall be confined to errors [outside] the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.[6]
In 2012, however, this uncertainty was resolved by the Tennessee Supreme Court in Wlodarz v. State, which held without equivocation that: “a writ of error coram nobis is available to challenge a guilty plea . . . .”[7] In Wlodarz, the Court explained in a lengthy section entitled “Guilty Plea Proceeding as a Trial” that “[n]umerous authorities interpret the term trial broadly.”[8] The Court’s majority also cited extensive precedent from the United States Supreme Court, the Tennessee Supreme Court, the Tennessee Court of Criminal Appeals, and the legal treatises American Jurisprudence and Corpus Juris Secundum to support that proposition.[9] Consequently, the Wlodarz court concluded that “[i]t is inappropriate, in our view, to trivialize a guilty plea proceeding by holding that it does not constitute a ‘trial.’”[10] The Court further observed that “[i]f this Court were to say that a guilty plea proceeding is not a trial and thus, not subject to the writ of error coram nobis, we would be the first to so hold, brushing aside centuries of tried and tested jurisprudence.”[11]
Importantly, no legislative changes of any kind were made to the coram nobis statute after Wlodarz was decided. At least to this author’s knowledge, the decision was not followed by any other legal or factual developments that might have caused the Tennessee Supreme Court to reconsider it, either. Instead, the only intervening fact of significance was a recent change in the composition of the Tennessee Supreme Court. Thus, without any particular reason for doing so, the current Court decided to grant review in Frazier “to reexamine the availability of the error coram nobis statute as a procedural mechanism to collaterally attack a guilty plea.”[12]
Upon review, a three-Justice majority explained that “[t]he plain and ordinary meaning of the term ‘litigated on [or at] the trial’ in the context of criminal prosecutions refers to a contested proceeding involving the submission of evidence to a fact-finder who then must assess and weigh the proof in light of the applicable law and arrive at a verdict of guilt or acquittal.”[13] The majority then recited that its “oath is to do justice, not to perpetuate error” – a familiar line invoked by courts when overturning established precedent – and further held that the value of stare decisis was limited in this instance because “Wlodarz is only a few years old.”[14] Accordingly, Frazier’s majority decision formally overruled Wlodarz and held that the term “trial,” as used in Tennessee’s coram nobis, must actually be construed narrowly.
In a short but hard-hitting dissent, Chief Justice Sharon Lee lambasted the majority for having dispensed with stare decisis so readily. She noted: “The principle of stare decisis, that the Court should follow precedential decisions, is ‘a foundation stone of the rule of law.’”[15] This foundation, she explained, “promotes consistency in the law and confidence in this Court’s decisions,” and it “gives firmness and stability to principles of law so that people may know their legal rights.”[16] Further, Chief Justice Lee observed:
We previously set out the circumstances when the Court may and should disregard stare decisis, overrule precedent, and overturn a settled rule of law: when there is obvious error or unreasonableness in the precedent; when a change in conditions makes the precedent obsolete; when adherence to precedent would likely cause greater harm to the community than would disregarding stare decisis; or, especially, when prior precedent conflicts with a constitutional provision. The Court should follow precedent unless an error has been committed, and it becomes plain and palpable. The Court may also revisit an earlier decision where experience with its application reveals that it is unworkable or badly reasoned. Here, none of those compelling reasons are posed.[17]
As noted in this article’s introduction, Frazier represents just another star in a constellation of recent judicial activism by the Court’s new conservative majority, which has all but rushed to overturn past precedent that bolstered the rights of criminal defendants. This pattern is also likely to continue. Coming down the pipeline, for example, the Tennessee Supreme Court recently granted review in State v. Tuttle by expressing its “interest[] in briefing and argument of the question whether this Court should revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989).” Ten months ago, the Court also heard argument in State v. Reynolds, which may well result in Tennessee’s imminent adoption of its first-ever “good faith” exception to law enforcement misconduct. (Note: In the interest of full disclosure, this author participated in drafting an amicus curiae brief in Reynolds on behalf of the Tennessee Association of Criminal Defense Lawyers that opposed such a result.)
Jacumin represents one of Tennessee’s most celebrated state constitutional protections, requiring law enforcement officials in this State to establish a comparatively greater degree of confidence before obtaining search warrants. Based on the Court’s recent jurisprudence, however, Jacumin’s continued survival (and the survival of myriad other precedential decisions) seems unlikely. Regardless of the specific question involved, the Tennessee Supreme Court’s new philosophy is clear: no prior precedent bolstering the rights of the accused under Tennessee law – no matter how recent or long-established – stands on firm footing any longer.
Questions about this article? Email Daniel Horwitz at [email protected].
[2]See, e.g., State v. Brown, 479 S.W.3d 200, 210 (Tenn. 2015) (“we are not required to accept the State’s concession and decline to do so in this instance. . . . We are also not persuaded by Mr. Brown’s and the State’s interpretation of Rule 36.1, although we recognize that some panels of the Court of Criminal Appeals have embraced this interpretation of the rule.”).
[4] Daniel A. Horwitz, Revealing Disturbing Gap in Tennessee Law, Tennessee Supreme Court Rules that Allegedly Retarded Death Row Inmate Is Not Entitled to Prove that He’s Retarded, scotblog.org (Apr. 19, 2016), https://scotblog.org/2016/04/revealing-disturbing-gap-in-tennessee-law-tennessee-supreme-court-rules-that-allegedly-retarded-death-row-inmate-is-not-entitled-to-prove-that-hes-retarded/ (quoting Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012)).
[5]Frazier v. State, No. M-2014-02374-SC-R-11-ECN, 2016 WL 3668035, at *1 (Tenn. July 7, 2016).
News Channel 2 viewers were treated to a fun story last night about the free speech rights of public employees. According to the segment, Nashville District Fire Chief Tim Lankford was recently disciplined for controversial, conservative-leaning statements that he made on his facebook page, which were perceived by his employer as being “racial, stereotypical, and threatening toward members of the public.” The statements included posts such as: “The first man who goes into the restroom with my daughter won’t have to worry about the surgery,” as well as a diatribe about the Supreme Court’s marriage equality ruling that concluded with Chief Lankford stating that he was “so disturbed” by the opinion that he could “barely function at his job.” Chief Lankford’s discipline also comes on the heels of independent sanctions being levied against two local police officers and a Sherriff’s deputy for statements made on facebook about the military lifting its ban on transgender service members and about the Black Lives Matter movement. All of which led News Channel 2’s reporter to wonder: Can public employees be disciplined for their speech without running afoul of the First Amendment?
Last night’s segment does not explore the applicable First Amendment doctrine in detail, but the short answer is “sometimes.” Sadly, for most of the 20th century, public employers had an unfettered right to take adverse employment actions against public employees for their speech whether it was expressed inside or outside of the workplace. Specifically, the Court’s thinking went: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[1]
Happily, though – at least for those of us who believe that more speech contributes to a better democracy – the Supreme Court eventually decided to change course. In a series of cases beginning with the Court’s 1968 decision in Pickering v. Board of Education, the Court aimed to strike a balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[2] Approximately four decades of tweaking later, following the Supreme Court’s contentious 2006 decision in Garcetti v. Ceballos,[3] the current state of the doctrine is as follows:
Determining whether a public employee’s First Amendment rights have been violated currently requires a three-part inquiry.
First, to be protected, the employee’s speech must address a matter of public concern, rather than a purely private matter.[4] “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’”[5] This requirement is broadly construed, so in addition to encompassing commentary on political issues writ large,[6] “speech falling into this category includes informing the public that a governmental entity failed to discharge its governmental responsibilities or bringing to light actual or potential wrongdoing or breach of public trust on the part of a governmental entity or any officials therein.”[7]
Second, the employee must also have been speaking as a private citizen, rather than speaking pursuant to his or her official job responsibilities. “When public employees make statements pursuant to their official duties,” the Supreme Court has explained, “employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[8] Thus, although speech by public employees on matters of their employment is sometimes protected under federal and state whistleblower laws, for First Amendment purposes, public employees who speak in their capacity as public employees enjoy no First Amendment protection whatsoever.
Third, if the employee’s speech involved a matter of public concern and was not made pursuant to the employee’s official duties, then courts must attempt to “balance the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[9] In Garcetti, the Supreme Court instructed that “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”[10] However, lower courts have interpreted this requirement to mean that an employee’s interest in commenting upon matters of public concern must “outweigh” his or her employer’s interest in promoting an efficient and effective workplace, meaning that this final factor often derails otherwise-valid First Amendment claims as well.[11] If the employee can satisfy all three of these requirements, however, then disciplining the employee for speaking out violates the employee’s rights under the First Amendment.
Satisfying each of these three requirements is undeniably difficult—especially for first responders who require the public’s complete trust that they will discharge their duties fully and impartially without regard to factors like a person’s race, gender, or sexual orientation. (As former New York Mayor Rudy Giuliani celebrated during his speech at the Republican National Convention on Monday, for example: “When the[ police] come to save your life, they don’t ask if you are black or white, they just come to save you!”) Accordingly, public employees often do not enjoy quite the level of First Amendment freedom that many expect or hope to see. Of note, however, the limited First Amendment protections afforded to public employees stand in stark contrast to those held by private employees, who enjoy no First Amendment protections with regard to their employment at all.
Of course, the First Amendment also is not the only source of protection for free speech. Additional protections can be and often are conferred upon public employees by federal law, state law, union agreements, or by contract. For example, pursuant to Tennessee’s Public Employee Political Freedom Act (PEPFA): “it is unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee’s right to communicate with an elected public official.”[12] Taking disciplinary action against a public employee who exercises his or her right to communicate with a public official under PEPFA can also result in severe consequences to a government employer, including “treble damages plus reasonable attorney fees.”[13] Thus, the First Amendment functions as only a protective floor upon which additional free speech protections can be – and should be – built higher.
Questions about this article? Email Daniel Horwitz at [email protected].
[1]Connick v. Myers, 461 U.S. 138, 143-44 (1983) (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892), citing Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930); Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882).
[3] 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).
[4]See Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008).
[5]Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (quoting Connick, 461 U.S. at 146.).
[6]See, e.g., Pickering, 391 U.S. at 571 (protecting commentary on use of tax dollars and school spending).
[7]Rodgers, 344 F.3d at 596 (internal quotation marks and alterations omitted).
Pervis Payne is a death row inmate in Tennessee who may well be mentally retarded. Significantly, both the United States and Tennessee Constitutions forbid the Government from executing mentally retarded people. In a unanimous 4-0 opinion, however, the Tennessee Supreme Court has ruled that under Tennessee law, Mr. Payne is not allowed to prove that he is mentally retarded to a court.
Pervis Payne was convicted of murder and sentenced to death in 1988. Thereafter, both the Tennessee Supreme Court and the U.S. Supreme Court ruled that under the Tennessee and U.S. Constitutions, executing mentally retarded people is cruel, unusual, and categorically forbidden. Additionally, in 1990, the Tennessee legislature enacted a law providing that: “Notwithstanding any law to the contrary, no defendant with mental retardation at the time of committing first degree murder shall be sentenced to death.”[1] Following these developments, an individual cannot lawfully be executed if the individual has:
(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;
(2) Deficits in adaptive behavior; and
(3) The [individual’s] intellectual disability . . . manifested during the developmental period, or by eighteen (18) years of age.
Because all of these legal developments came only after Mr. Payne’s conviction, however, Mr. Payne has never had a hearing on the issue of his alleged mental retardation. Nonetheless, there is strong reason to believe that he is indeed mentally retarded. Among other indications, for example, Mr. Payne’s scores from multiple IQ tests administered between 1976 and 2010 all place him within or very near the range of mental retardation. Significantly, one IQ test that was administered when he was nine years old produced a raw IQ score of 69. If accurate, such a score would definitively establish Mr. Payne’s mental retardation so long as Mr. Payne could also prove that he has deficits in adaptive behavior.
After reviewing several of Mr. Payne’s IQ tests and evaluating Mr. Payne personally, Dr. Daniel J. Reschly—a professor of education and psychology at Vanderbilt University—recently stated in a sworn affidavit that Mr. Payne “has significant deficits in adaptive behavior due to substantial limitations in the conceptual skills and practical skills domain.” Based on Mr. Payne’s consistently low IQ scores, his deficits in adaptive behavior, and the fact that Mr. Payne has been intellectually disabled since he was a child, Dr. Reschly also concluded under oath that Mr. Payne satisfies the established constitutional criteria for mental retardation, which would prohibit the Government from executing him.
Armed with this evidence, on April 4, 2012, Mr. Payne’s attorneys attempted to invoke several different procedures under Tennessee law in an effort to win Mr. Payne an evidentiary hearing on his mental retardation claim. However, the trial court summarily denied all of Mr. Payne’s claims without holding a hearing. Ultimately, the case reached the Tennessee Supreme Court.
In adjudicating Mr. Payne’s case, the Tennessee Supreme Court was called upon to decide what procedural mechanism Mr. Payne might use to go about proving that he is mentally retarded. Unfortunately for Mr. Payne, however, the Tennessee Supreme Court ruled that as far as Tennessee law is concerned, no such procedure exists.
a. Standard Post-Conviction Claim
Under Tennessee law, the traditional procedure for challenging a conviction that has become final is to file a “post-conviction petition.” Post-conviction petitions are governed by Tenn. Code Ann. § 40-30-101, which is appropriately called the “Post-Conviction Procedure Act.” Because Tennessee law recognizes what the Tennessee Supreme Court has described as the Government’s “interest[] in preserving the finality of judgments,”[2] however, only certain claims are eligible for consideration. Specifically, in order to obtain post-conviction relief, defendants must prove that either their convictions or their sentences violate a right that is “guaranteed by the Constitution of Tennessee or the Constitution of the United States.”[3]
Notably, the Post-Conviction Procedure Act also imposes a strict one-year statute of limitations for filing post-conviction petitions. Specifically, Tenn. Code Ann. § 40-30-102(a) provides that absent exceptional circumstances, a defendant’s post-conviction petition must be filed “within one (1) year of the date on which the judgment became final, or [else] consideration of the petition shall be barred.” In more cases than not, this one-year statute of limitations operates to foreclose defendants from getting their claims into court at all regardless of their merit. Why, one might wonder? The answer is that most defendants in Tennessee are not aware of the strict one-year requirement, and since convicted defendants generally do not have the right to an attorney until after they have filed a post-conviction petition, they often learn about the one-year limitations period only after it has expired.[4]
With respect to the first requirement—that a conviction or sentence violate either the U.S. or Tennessee Constitutions—Mr. Payne’s claim unquestionably qualified. In December of 2001, the Tennessee Supreme Court held that “the execution of a mentally retarded individual violates the Eighth Amendment to the United States Constitution and article I, § 16 of the Tennessee Constitution.”[5] Barely six months later, in June of 2002, the U.S. Supreme Court followed suit, holding that the Eighth Amendment to the U.S. Constitution “places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”[6] Thus, because Mr. Payne asserted that his death sentence was unconstitutional in light of his mental retardation, this claim qualified for post-conviction review.
Unfortunately for Mr. Payne, however, these constitutional developments came more than a decade after he was convicted. Accordingly, the traditional one-year requirement for filing a post-conviction petition had long expired. As a consequence, Tennessee law prohibited Mr. Payne from having his post-conviction claim heard by a court unless he could “re-open” his post-conviction proceeding by proving that the new rule at issue applies retroactively.
b. “Re-opening” a Post-Conviction Claim Under Retroactivity Exception
The question of whether a new constitutional rule of criminal procedure applies retroactively is one of the most complex inquiries in constitutional law. It has also repeatedly befuddled the Tennessee Supreme Court, which has reversed itself on the issue at least four times in the past twenty years[7] only to arrive—in 2014—at a standard that conspicuously conflicts with the text of the standard that it was attempting to adopt.[8] During the intervening chaos, the Court of Criminal Appeals occasionally applied multiple retroactivity standards to defendants’ claims because it could not parse the Tennessee Supreme Court’s jurisprudence on the matter.[9]
At present, however, the statutory retroactivity standard codified in the Post-Conviction Procedure Act governs retroactivity claims.[10] This statute provides that new rules apply retroactively if they either: (1) “place[] primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” or (2) “require[] the observance of fairness safeguards that are implicit in the concept of ordered liberty.” Confusingly, however, with respect to the second rule, the Court held in 2014 that the Tennessee legislature actually intended to adopt “the federal standard from Teague v. Lane,” rather than the “implicit in the concept of ordered liberty” standard that actually appears in the statute.[11] Thus, at present, the text of the second portion of Tenn. Code Ann. § 40-30-122 is to be ignored in favor of the second Teague v. Lane exception, which provides that retroactivity attaches to “new procedures without which the likelihood of an accurate conviction is seriously diminished.”[12]
Mercifully, the federal judiciary has held unmistakably that the Eight Amendment’s prohibition on executing mentally retarded people applies retroactively to all cases because it places the Government’s ability to execute a certain class of people beyond the Government’s power.[13] Consequently, there is no doubt that both the Tennessee Supreme Court’s December 2001 decision prohibiting the execution of mentally retarded people and the U.S. Supreme Court’s similar June 2002 decision apply retroactively to Mr. Payne. Accordingly, one might be forgiven for believing that Mr. Payne would be entitled to a hearing on his mental retardation claim.
Unfortunately for Mr. Payne, however, the aforementioned statute that allows defendants to “re-open” their post-conviction petitions when a new rule is retroactive also provides that even “if retrospective application of [a] right is required,” the petition to re-open the case “must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial[.]”[14] Whether it violates fundamental fairness to apply such a strict time limitation—or any time limitation—to mentally retarded people; and whether the Government is even permitted to leverage short, strict statutes of limitations in order to insulate itself from otherwise meritorious claims that the Government is attempting to act in excess of its constitutional authority are serious questions for another day. In this case, however, because Mr. Payne did not file his post-conviction petition until 2012, the court held that his claim was time-barred. Had he filed his claim at any time between December 2001 and June 2003, though, then there is absolutely no question that he would have been granted relief.
Undiscouraged, Mr. Payne’s attorneys also attempted to use the U.S. Supreme Court’s more recent decision in Hall v. Florida as the “hook” to allow him to get back into court. In Hall—which was decided in May 2014—the Supreme Court struck down Florida’s death penalty statute because it failed to account for standard error in a defendant’s IQ scores. According to the Supreme Court, such a rigid requirement “misuse[d] IQ score on its own terms[.]”[15] Thus, following Hall, “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”[16]
Consequently, the question for Mr. Payne became whether the rule announced in Hall was retroactive, too. Given its recency, only two courts in the United States had addressed this issue at the time that Mr. Payne’s case was heard, and each reached a bitterly contested, 2-1 decision under the time-pressure of an imminent execution.[17] In both cases, a two-judge majority concluded that Hall was not retroactive because it merely established new procedures for determining whether a defendant was mentally retarded, rather than establishing another substantive restriction on punishment.
There are, however, strong reasons to doubt this claim. Most convincingly, Hall unquestionably restricted the universe of people that the Government is permitted to execute—a result that bears all the hallmarks of a substantive ruling. Specifically, before Hall, individuals with an IQ above 70 were subject to being executed. After Hall, however, some number of individuals with an IQ above 70 are constitutionally prohibited from being executed. Like Atkins, such a result is one of substance in that it “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.”[18]
Unfortunately, the Tennessee Supreme Court did not engage any of this analysis. Instead, it merely held that because Mr. Payne was unable to identify any “federal appellate decision holding that Hall must be applied retroactively to cases on collateral review,” the court “decline[d] to hold that Hall applies retroactively.” Consequently, Mr. Payne was not permitted to re-open his post-conviction proceeding on the basis of Hall’s retroactivity, either.
c. Writ of Error Coram Nobis
As an alternative to the post-conviction statute, Mr. Payne’s attorneys also filed a petition for writ of error coram nobis. Historically, the common law writ of error coram nobis has served as a “gap-filler” which was invoked “to rectify a recognized wrong when all other possible remedies are no longer available.”[19] In Tennessee, for example, the writ has been used to correct judgments upon the subsequent discovery of a factual error “which, if known at the time of judgment, would have prevented the judgment from being pronounced.”[20]
Subsequently, however, the Tennessee legislature enacted a coram nobis statute that significantly limited the writ’s application. Among other things, the legislature imposed a one-year statute of limitations for coram nobis actions and restricted the relief that it provides to factual errors only (rather than legal errors).[21] It has never been clear whether the statutory writ of coram nobis operated to replace and supersede the common law writ,[22] and indeed, the answer to that question is still not entirely clear even following the Court’s decision in Payne.[23] Given the one-year statute of limitations contained in the writ of error coram nobis statute, however—and after indicating that Mr. Payne’s claim was more appropriately characterized as a legal claim rather than a factual one—the Court denied Mr. Payne coram nobis relief as well.
d. Free-Standing Claim Under Tenn. Code Ann. § 39-13-203
Positing yet another procedural vehicle for his claim, Mr. Payne’s attorneys also argued that he had a free-standing claim under Tenn. Code Ann. § 39-13-203 (the “Intellectually Disabled Defendants/Capital Punishment” statute), which was enacted approximately one year after Mr. Payne was convicted. In pertinent part, this statute provides that: “Notwithstanding any law to the contrary, no defendant [who was mentally retarded] at the time of committing first degree murder shall be sentenced to death.”
Unfortunately for Mr. Payne, however, the Tennessee Supreme Court already ruled on the retroactivity of Tenn. Code Ann. § 39-13-203 back in 2001. In that case, the court concluded that “although the issue as to retroactive application of the statute [wa]s close,”[24] Tenn. Code Ann. § 39-13-203 only applied prospectively. Disappointingly, the court’s analysis on this point completely failed to engage the question of whether Tenn. Code Ann. § 39-13-203 was substantive or procedural, which is traditionally what governs the inquiry under Tennessee law.[25] Notably, the case also serves as a prime example of why the late Justice Scalia railed against the use of legislative history in interpreting statutes—which can frequently be manipulated to arrive at whatever decision a reviewing judge would prefer to reach.
Specifically, when it decided the issue in 2001, the court noted that during the 1990 legislative session, a specific amendment was introduced in the State Senate that would have explicitly provided that Tenn. Code Ann. § 39-13-203 applied only prospectively.[26] The amendment failed and was withdrawn, which one might think would suggest that the legislature disagreed with it and wanted the statute to apply retroactively. Not so, apparently. After hypothesizing that “the legislature’s failure to clearly provide for retroactive operation may have been a product of oversight or may have been based on the assumption that no prisoner then on death row was mentally retarded,” the court concluded that “notwithstanding the presence of some ambiguous language in the statute and in the legislative history, there is no evidence of a clear legislative intent to apply the statute retroactively as required by the general rule.”[27] Accordingly, the court held that Tenn. Code Ann. § 39-13-203 applied only to cases after July 1, 1990.
Revisiting this issue again in Mr. Payne’s case, the Tennessee Supreme Court reaffirmed its 2001 holding in Van Tran that Tenn. Code Ann. § 39-13-203 does not apply retroactively. Yet again, however, the Tennessee Supreme Court failed to ask whether the statute at issue was merely remedial in nature, which this author finds somewhat baffling. Interestingly, the Court’s position that the Intellectually Disabled Defendants/Capital Punishment statute does not apply retroactively also shifted from a “close [call]” to an “inescapable conclusion” in Mr. Payne’s case. Regardless, however, the end result was the same. According to the court: “[Mr. Payne] failed to establish that he has a private cause of action to pursue his claim of [mental retardation] pursuant to the intellectual disability statute.”
e. Additional procedures?
According to a footnote in the court’s opinion, Mr. Payne’s attorneys also claimed that he had a right to an evidentiary hearing on his mental retardation claim under three other procedures available in Tennessee law: a declaratory judgment action; a motion to vacate an illegal sentence; and/or a petition for writ of audita querela. The court declined to rule on any of these potential claims, however, as the record before it did not indicate that Mr. Payne had yet tried to pursue them. Even so, the court implied that these procedures would not allow Mr. Payne to obtain an evidentiary hearing on his claim of mental retardation, either. Accordingly, the court concluded its opinion by “encourag[ing] the General Assembly to consider whether another appropriate procedure should be enacted to enable defendants condemned to death prior to the enactment of the intellectual disability statute to seek a determination of their eligibility to be executed.”
It seems extremely unlikely that the General Assembly will accept this invitation. Accordingly, as far as mentally retarded defendants who received death sentences after 1990 (and who did not have the benefit of effective counsel between 2001 and 2003) are concerned, the constitutional prohibitions against cruel and unusual punishment exist only in theory as a matter of Tennessee law. Notably, however, this very likely does not mean that they will be executed. Instead, it just means that Tennessee’s courts won’t hear the matter, and that federal courts will have to clean up the omission.
Read the Tennessee Supreme Court’s unanimous opinion in Payne v. Tennesseehere.
Questions about this article? Email Daniel Horwitz at [email protected].
[4] Occasionally, defendants also encounter some threshold procedural obstacles to filing post-conviction petitions that prevent them from meeting this deadline (not the least of which is trying to practice law without the assistance of an attorney). For example, although notarization is not required by statute, the standard form for post-conviction petitions inexplicably requires a notary, and prisons are often slow to provide access to them. Additionally, incarcerated defendants generally require a minimum degree of cooperation from prisons in order to file a post-conviction petition by mail, and in some instances, prison staff have been rumored to obstruct inmates from doing so.
[5]Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 2001)
[6]Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252, 153 L. Ed. 2d 335 (2002) (quotation omitted).
[7]CompareMeadows v. State, 849 S.W.2d 748, 755 (Tenn. 1993) (“we decline to apply the federal standard of retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and hold that a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially enhances the integrity and reliability of the fact finding process of the trial.”); with Van Tran, 66 S.W.3d at 811 (appearing to hold that Meadows standard applies despite state statute adopting Teague standard); with Keen v. State, 398 S.W.3d 594, 601 (Tenn. 2012) (appearing to equate Meadows standard and Teague standard); with Bush v. State, 428 S.W.3d 1, 15 (Tenn. 2014) (expressly acknowledging difference between Meadows standard and Teague standard, holding that Tenn. Code Ann. § 40-30-122 codifies Teague standard, and holding that statutory standard prevails).
[8]See Daniel A. Horwitz, Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J.L. & Pol’y 215, 232 (2015) (noting that “[r]ather than applying the comparatively broad retroactivity standard that had in fact been included in the Post-Conviction Procedure Act, the Bush court instead held that an even narrower [] standard–which the court summarily concluded that the legislature must have “intended” to enact based upon a pair of confused statements made by the bill’s House sponsor nineteen years earlier–would henceforth govern retroactivity law in Tennessee.”), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2564583.
[9]See, e.g., Bush v. State, No. M2011-02133-CCA-R3PC, 2012 WL 2308280 *6-9 (Tenn. Crim. App. June 15, 2012).
[12]Teague v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060, 1077, 103 L. Ed. 2d 334 (1989).
[13]See, e.g., In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (“there is no question that the new constitutional rule abstractly described in Penry and formally articulated in Atkins is retroactively applicable to cases on collateral review.”); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002) (“In Atkins, the Supreme Court held at the end of its term that executing a mentally retarded individual violates the Eighth Amendment’s ban on cruel and unusual punishments. This holding applies retroactively; in Penry v. Lynaugh, when the question was last before it, the Court recognized that a constitutional rule barring execution of the retarded would fall outside Teague v. Lane’s ban on retroactive application of new constitutional rules because it placed the ability to execute the retarded ‘beyond the State’s power.’”) (internal citation omitted).
[17]See Goodwin v. Steele, Nos. 14-3739, 14-3743, 2014 WL 11128597, at *2 (8th Cir. Dec. 9, 2014) (per curiam); In re Henry, 757 F.3d 1151, 1159-61 (11th Cir. 2014).
[18]Montgomery v. Louisiana, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016) (internal quotations omitted); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“the Constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”) (internal quotations omitted).
[19]Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012).
[20]State v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999)
[21]See Tenn. Code Ann. § 40-26-105; Tenn. Code Ann. § 27-7-102 & 103. It is not clear that the criminal coram nobis statute – which mentions neither factual errors nor a statute of limitations period – actually compels this result, but the Tennessee Supreme Court has held as much nonetheless.
[22] To the author’s knowledge, the Tennessee Supreme Court also has never opined on whether a legislative effort to limit the application of a common law judicial writ would violate the Tennessee Constitution’s separation of powers doctrine.
[23] The Court suggests that the answer is “yes,” however, holding that an earlier case containing language that suggested considerably broader coram nobis relief than the coram nobis statute provides “d[id] not provide the Petitioner with a common law remedy in coram nobis.”
[25]See, e.g., Shell v. State, 893 S.W.2d 416, 419 (Tenn. 1995) (“statutes affecting only the method or the procedure for prosecuting or defending a cause of action may be applied retroactively. A remedial or procedural statute is one that does not affect the vested rights or liabilities of the parties.”).
In the wake of the U.S. Supreme Court’s landmark Second Amendment rulings in District of Columbia v. Heller and McDonald v. City of Chicago, lower courts have grappled with the appropriate standard of scrutiny to apply to Second Amendment claims. Respectively, Heller and McDonald held that the Second Amendment confers an individual right to keep and bear popularly-used firearms in one’s home, and that Second Amendment is applicable against both the states and the federal government alike. However, neither case articulated a specific standard of scrutiny for evaluating Second Amendment claims. As a consequence, the full scope of the right to bear arms — such as whether it applies outside the home, whether it applies to handguns alone, and whether it applies only for purposes of self-protection — remains unclear.
The “standard of scrutiny” applied to a particular claim is of critical legal importance and usually determines whether the claim will succeed. Generally speaking, and simplifying matters considerably, courts use three different standards to adjudicate constitutional claims: (1) rational basis review; (2) intermediate scrutiny; (3) and strict scrutiny.
After Heller, several competing theories were presented concerning which standard of scrutiny should apply to Second Amendment claims. For example, one prominent scholar suggested that “courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms,” and proposed that courts apply a different standard depending on the specific justification presented. Another theorized that courts would adopt the separate “undue burden” standard that is used to evaluate abortion restrictions. As this author noted back in 2012, though, in light of Heller‘sundefined standard of scrutiny and its expansive language approving certain “longstanding prohibitions on the possession of firearms,” “the post-Heller world has not turned out nearly as well as gun advocates had hoped.” Instead, “by January 2, 2009, lower courts had issued rulings on all manner of gun control regulations, and . . . the scoreboard was ‘Gun Control 60, Individual Right 0.’”
Since 2012, however, a few courts have starkly deviated from this practice. For example, in a recent February 4, 2016 opinion that could have significant nationwide consequences, the U.S. Court of Appeals for the Fourth Circuit held that certain category-based “firearms and magazine bans require strict scrutiny.” Interestingly, the Fourth Circuit’s opinion on the matter also closely mirrors the standard of review analysis that is commonly employed in the realm of the First Amendment.
Notably, one author — First Amendment scholar David Hudson, who is an occasional guest contributor to this blog — predicted that this might happen. For example, in a 2012 article entitled “Turning to the First to understand the Second,” Professor Hudson anticipated that in determining the appropriate standard of scrutiny for Second Amendment claims, “many courts will refer to First Amendment free-speech law and its use of different standards of review. In other words, judges will use the First to understand the Second.” His most recent article on the matter — “A Continuing Trend: Using the First to Interpret the Second” — further explores this trend. It is reposted below with permission:
The 4th U.S. Circuit Court of Appeals recently used an analogy to First Amendment free-speech law in upholding a Second Amendment challenge and striking down a Maryland law banning semi-automatic rifles and larger-capacity detachable magazines.
In Kolbe v. Hogan, a divided 4th Circuit panel noted that the Maryland law imposed a near complete ban on these semi-automatic rifles and larger magazines. The appeals court analogized to the First Amendment principle that bans on entire mediums of speech are constitutionally suspect.
The U.S. Supreme Court identified this principle in City of Ladue v. Gilleo (1994), a case involving a ban on yard signs. “Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression,” the Court explained in the yard-sign case.
The 4th Circuit majority adopted this rationale in interpreting the Second Amendment right to “keep and bear arms,” writing that Maryland’s law banning semi-automatic rifles was “akin” to a law that bans an entire medium of speech.
Courts have examined and developed, over nearly a 100-year period, a complex and intricate body of First Amendment law. However, Second Amendment law is in its nascent phase. The U.S. Supreme Court did not rule that the Second Amendment right to “keep and bear arms” was an individual right until 2008 and it didn’t rule that this principle applied to state and local governments until 2010.
Sometimes, though, courts have used this First-Second connection to reject gun claims. For example, courts have reasoned that just as the First Amendment doesn’t protect all forms of speech, the Second Amendment doesn’t give one an unqualified right to possess any kind of weapon.
Tennessee drivers beware: stray outside your lane – even an inch, and even for just a moment – and you’re subject to being seized and arrested by law enforcement. Also, you’ve just committed a crime that can land you in jail for up to a month.
In a pair of companion cases handed down by the Tennessee Supreme Court on Thursday afternoon, the Court observes that “[o]ur legislature has chosen to criminalize the common driving infraction” of crossing lane lines. Moreover, the Court explains, the fact that “drivers in Tennessee [] cross lane lines ‘all the time’” makes no difference. No matter how minor the offense, if you’re suspected of having committed any driving infraction of any kind anywhere in the state, then neither the Fourth Amendment nor the Tennessee Constitution will protect you.
These holdings – surprising as they may seem – actually bring Tennessee law in line with the overwhelming majority of jurisdictions that have analyzed the issue over the past twenty years. In 1996, the United States Supreme Court handed down a controversial – though unanimous – Fourth Amendment decision in Whren v. United States, 517 U.S. 806, 819 (1996). Authored by the late Supreme Court Justice Antonin Scalia, Whren involved a police seizure for a minor traffic offense that had every appearance of being pretextual. Although there was strong reason to believe that the real reason why the driver had been stopped was because he was suspected of carrying drugs, the Supreme Court held without equivocation that an officer’s subjective reasons for pulling someone over do not matter. Simply stated, if police officers “ha[ve] probable cause to believe that [a driver has] violated the traffic code,” then that fact alone “render[s] the stop reasonable under the Fourth Amendment.”
The Tennessee Supreme Court’s decisions in State v. Smithand State v. Davis represent straightforward extensions of this holding, although their potential for abuse is frightening. Both cases involved drivers who were pulled over for momentarily crossing over lane lines. On December 6, 2012, after being followed by a trooper without incident for approximately two-and-a-half miles, Defendant Linzey Smith was pulled over for “cross[ing] the fog line ‘by less than six inches’” as she negotiated a winding, sloping portion of a roadway. Similarly, on October 23, 2009, Defendant William Davis, Jr. was pulled over after his car’s two left wheels briefly drifted over the double yellow line splitting a two-lane road. After being pulled over, both drivers exhibited signs of intoxication, and each was ultimately arrested for DUI.
The question presented in both cases was whether law enforcement had the requisite level of suspicion to pull the drivers over in the first place. Both the Fourth Amendment and Article I, Section 7 of the Tennessee Constitution protect individuals from unreasonable seizures. There is also no doubt – at least in theory – that “an individual does not lose her constitutional rights against unreasonable seizures by driving a car.”[1] Further, longstanding caselaw establishes that “[a] police officer seizes a motorist when he turns on his blue lights in order to pull the motorist over.”[2] As a result, every traffic stop implicates an individual’s rights under the Fourth Amendment and the Tennessee Constitution, and all traffic stops must be justified by a minimum level of suspicion.
Generally speaking, two separate types of seizures are permitted under the Constitution. If law enforcement has probable cause to believe that an individual has committed a crime, then an officer may make a full-scale custodial arrest. Alternatively, if law enforcement has reasonable suspicion to believe that a criminal offense has been or is about to be committed, then an officer may initiate a brief investigatory stop to investigate the matter further.[3]
Notably, “[t]he level of reasonable suspicion required to support an investigatory stop is lower than that required for probable cause.”[4] Although non-technical and imprecise, federal judges estimate probable cause and reasonable suspicion to reflect certainty levels of roughly 45% and 31%, respectively.[5] However, both types of seizures must be justified by specific, articulable facts.
Tennessee law provides that crossing over a lane line even momentarily is a Class C misdemeanor that is punishable by up to 30 days in jail and a $50.00 fine.[6] Consequently, because the troopers in both Smith and Davis had at least reasonable suspicion to believe that the drivers had strayed from their lanes, the Tennessee Supreme Court held that in each instance, the traffic stops were constitutionally permissible. The Court also reiterated, however, that “slight weaving within one’s lane ordinarily will not support a stop under any standard.”[7]
In this regard, the Court’s holdings in Smith and Davis are unremarkable. Broadly considered, they simply reflect the U.S. Supreme Court’s now routine indication that: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”[8] What is concerning, however, is their profound potential for abuse.
In affirming the legality of the stops at issue, the Tennessee Supreme Court candidly acknowledged the reality that nearly all drivers constantly deviate from their lanes. “We are confident that drivers in Tennessee [] cross lane lines ‘all the time,’” Justice Bivins’ unanimous opinion declares. Given this state of affairs, however, it is now a fact of life that virtually any driver in Tennessee can be stopped and jailed anywhere and at any time simply on an officer’s whim for no reason other than that it is impossible to drive perfectly within one’s lane at all times.[9] Additionally, although the Court went to great lengths to caution that its holdings were “not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a [lane] line,” as a matter of practical reality, they do just that.
Any number of commentators have expressed serious reservations about this development in constitutional jurisprudence. Perhaps most troublingly, giving police nearly unchecked authority to seize any driver, anywhere, at any time is eerily reminiscent of the “general warrants” that were abused by the British during the pre-revolutionary period—abuses which gave rise to the very existence of the Fourth Amendment itself.[10]Moreover, Justice Bivins’ observation that “an officer has discretion as to when to stop drivers” – and his additional efforts to emphasize that “[w]e do not mean to require or imply that a stop should be made in all such instances” – should provide Tennesseans little comfort. If past is prologue, affording all law enforcement officers virtually unfettered discretion to stop, search and arrest any Tennessee driver anywhere and at any time is all but guaranteed to lead to profound abuse of authority and disproportionate enforcement against marginalized groups. In particular, poor minorities will continue to bear the brunt of minor traffic stops—often for purely pretextual reasons—while whiter, wealthier drivers remain unmolested. For obvious reasons, to those unlucky few who do not receive the benefit of an officer’s benevolent discretion not to pull them over every time they cross over a lane line, the Tennessee Supreme Court’s efforts to mollify the vast scope of its holdings will be of vanishingly small consolation.
[1] See Delaware v. Prouse, 440 U.S. 648, 662-63 (1979).
[2] See State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).
[3] State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)).
[4] State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008).
[5]See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand. L. Rev. 1293, 1325-28 (1982).
[6]See generally Tenn. Code Ann. § 55-8-103 (2008) (“It is unlawful and, unless otherwise declared in this chapter and chapter 10, parts 1-5 of this title with respect to particular offenses, it is a Class C misdemeanor, for any person to do any act forbidden or fail to perform any act required in this chapter and chapter 10 of this title.”); Tenn. Code Ann. § 55-8-123(1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety;”); Tenn. Code Ann. § 40-35-111(e) (“The authorized terms of imprisonment and fines for misdemeanors are: . . . (3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.”).
[7] In this regard, the Court reaffirmed its prior holding in State v. Binette, 33 S.W.3d 215, 219-20 (Tenn. 2000).
[8] Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549 (2001).
[9] Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 TEMP. L. REv. 221, 252-73 (1989).
[10]See id. See also Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1413 (Spring, 2013) (“[o]ur streets and highways have become a police state where officers have virtually unchecked discretion about which cars to stop for the myriad of traffic offenses contained in state statutes and municipal ordinances”); David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop and Search Any Car at Any Time, 47 Vill. L. Rev. 815, 816 (2002) (“the police may, in their discretion, stop and search any vehicle at any time”); Elizabeth Ahern Wells, Note, Warrantless Traffic Stops: A Suspension of Constitutional Guarantees in Post September 11th America, 34 U. Tol. L. Rev. 899, 899 (Summer, 2003) (stating that traffic stops have “evolved into a veritable green light for police officers, resulting in a complete disregard for personal security”).
It’s election season! In addition to junk mail and jingles, if there’s anything that’s absolutely guaranteed to take place in Tennessee this time of year, it’s an unresolved dispute over whether or not it’s illegal to vote in another party’s primary election. So is it?
According to the Bernie Sanders campaign, whether you’re a Democrat or not, voting in the Democratic primary is legal. “Tennessee has open primaries. Tennesseans can vote for Bernie Sanders regardless of their registered party,” his website declares. In sharp contrast, however, during several past election cycles, others have taken a markedly different view. In May 2014, for example, Maury County’s Election Commission formally censured one of its Democratic members for voting in the local Republican Primary. “Contrary to many public pronouncements by various people, a party primary is not open to anyone to come and essentially make a mockery of the process,” proclaimed Commission member Jason Whatley. “People who disagree with that are disagreeing with the law and they’re demonstrating a gross misunderstanding of what the law says.”[1]
Despite protestations from many in Commissioner Whatley’s camp, however, the reality of Tennessee law is quite different. Specifically, unless your party membership has been formally challenged under an obscure procedure that is virtually never utilized, voting in the primary election of a party with which you are not typically affiliated is not illegal at all. The reasons why, however, require considerable explanation.
In the election law world, the practice of voting in the primary election of a party with which a voter is not traditionally affiliated is known as “crossover voting.” Alternately considered insidious or a laudable expansion of democracy depending on who is benefiting from it, voters frequently engage in crossover voting for any number of reasons. For example, a Republican voter might be so disgusted with her party’s candidates in a particular election that she decides to affiliate with the Democratic Party for a single election cycle instead. Other voters—particularly those who live in highly gerrymandered districts—might vote in an opposing party’s primary in order to exert meaningful influence (called “hedging”) in the ultimate selection of their representatives, given that the winner of the opposing party’s primary is likely—or, in many cases, guaranteed—to win the general election down the road.[2] Alternatively, a Democratic voter might try to bolster his party’s chances of winning a general election by crossing over and voting for a weak Republican primary candidate who is comparatively less likely to prevail against his Democratic candidate of choice—a tactic known as “raiding.”[3]
With respect to this latter tactic, it’s worth noting that supporters of both parties have a rich history of organizing “crossover raiding” drives in an attempt to sabotage their opponents’ chances of winning a general election victory. In 2012, for example, in an effort to bolster Rick Santorum’s chances of becoming the Republican nominee for President over Mitt Romney, liberal activist Markos Moulitsas generated national media attention by encouraging Democrats to crossover to the Republican Primary and vote for Santorum.[4] Similarly, in 2008, conservative talk radio host Rush Limbaugh encouraged Republicans to crossover and vote for Hillary Clinton in their respective states’ Democratic primaries when then-Senator Barack Obama began surging ahead in the polls.[5] Although neither of these efforts turned out to be effective, successful crossover raiding has been blamed for primary victories of candidates in any number of elections, including Presidential primary victories in Michigan by George Wallace, Jesse Jackson and John McCain.[6] A successful crossover voting campaign was also given credit, in part, for the controversial 2008 primary victory of former Tennessee State Senator Rosalind Kurita over challenger Tim Barnes,[7] which was ultimately vacated under internal party procedures by the Tennessee Democratic Party.[8]
Unsurprisingly, in the roughly fifteen states where voters are not required to declare their party affiliation in order to vote in a particular party’s primary, crossover voting is simple, and it is unquestionably legal. To crossover, a voter in such an “open primary” state need only show up on election day and ask to vote in her primary of choice. The voter will then be given the opportunity to cast her vote in that party’s primary with no questions asked.
In other states, however, voters are prevented (or, at least, hindered) from engaging in crossover voting because the states hold “closed primaries.” In closed primaries, only voters who are expressly affiliated with a particular party may vote in that party’s primary elections. In several jurisdictions—Kentucky, for example—this affiliation requirement effectively eliminates crossover voting because in order to vote in a party’s primary, a voter must be pre-registered with the party long before voting begins.[9] In other closed primary states, however—Iowa, for instance—the affiliation requirement is effectively meaningless, because voters are permitted to change their party affiliation up until and even on election day itself.[10]
Tennessee falls into the latter category—a technically closed primary state, but one in which the party affiliation requirement exists only in theory. To start, Tennessee law does not impose any registration requirement on voters whatsoever. In fact, there is no such thing as party registration in Tennessee. Instead, the only affiliation requirement contained in Tennessee law is found in Tenn. Code Ann. § 2-7-115(b), which provides that:
“A registered voter is entitled to vote in a primary election . . . if:
(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or
(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.”
“A bona fide member” of a political party? “Declares allegiance”? What do these things even mean? Additionally, who decides whether someone is a bona fide member of a political party or not? And how are these requirements even enforced, anyway?
The broad answer to each of these questions is that it’s entirely up to the parties themselves. Political parties are private organizations. Accordingly, they enjoy an unquestioned First Amendment right to decide their own membership criteria and to exclude or include anyone they see fit. See, e.g., Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1188 (2008) (“a party’s right to exclude is central to its freedom of association.”); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981) (“the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.”) (internal quotation omitted); California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (“our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer . . . .”) (internal quotations and alterations omitted). As such, the definition of a “bona fide” member of a particular political party is left exclusively to political parties themselves.[11]
Notably, given this framework, it is also possible to be a bona fide member of both the Democratic Party and the Republican Party (or any other political party) at the same time. In fact, although Tennessee law prohibits candidates from appearing on the ballot under two separate parties, history offers multiple examples of the same candidate being selected as the nominee of more than one party in the same election—a practice known as “electoral fusion.” For example, in 1946, future U.S. Supreme Court Justice Earl Warren—who was then the incumbent Governor of California—became the only gubernatorial candidate in California’s history to win both the Republican and Democratic nominations for the state’s governorship.[12] As such, the fact that a person is considered a “bona fide” Republican by the Tennessee Republican Party does not necessarily foreclose that person from being considered a “bona fide” Democrat by the Tennessee Democratic Party as well. For precisely the same reason, there would be nothing untoward about a traditionally Republican voter seeking to vote in the Conservative Party’s primary, or a traditionally Democratic voter seeking to vote in the Green Party’s primary.
It is for these reasons that several public officials have erred so substantially in concluding that an individual who traditionally affiliates with one party cannot lawfully attempt to affiliate with another by voting in its primary.[13] For one thing, public officials have absolutely no authority to determine party membership—only parties do. For another, affiliating with one political party does not categorically preclude a voter from affiliating with another, since political parties are not necessarily incompatible with one another. All contrary conclusions reflect a fundamental misunderstanding of the First Amendment as it applies to political parties’ freedom of association.
Enforcement of Bona Fide Party Membership
As noted, however, the Supreme Court has recognized that the First Amendment’s right to freedom of association affords political parties the right to exclude voters from voting in their primaries as well. See, e.g., La Follette, 450 U.S. at 122 (“the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party’s essential functions—and [] political parties may accordingly protect themselves from intrusion by those with adverse political principles.”) (internal quotation omitted). Accordingly, any political party is well within its rights to exclude a voter from its membership, thus rendering the voter ineligible to participate in the party’s primary.
Under Tennessee law, however, the only mechanism for enforcing political parties’ right to exclude voters from participating in their primaries is found in Tenn. Code Ann. § 2-7-126, which provides that:
“A person offering to vote in a primary may . . . be challenged on the ground that the person is not qualified under § 2-7-115(b). Such a challenge shall be disposed of under the procedure of §§ 2-7-123 — 2-7-125 by the judge or judges and the other election officials of the party in whose primary the voter applied to vote, with a total of three (3) to decide the challenge.”
In turn, the highly complicated (and practically useless[14]) procedure found in §§ 2-7-123 — 2-7-125 provides that:
“If any person’s right to vote is challenged by any other person present at the polling place, the judges shall present the challenge to the person and decide the challenge after administering the following oath to the challenged voter: “I swear (affirm) that I will give true answers to questions asked about my right to vote in the election I have applied to vote in.” A person who refuses to take the oath may not vote.
. . . .
The judges may ask any question which is material to deciding the challenge and may put under oath and ask questions of such persons as they deem necessary to their decision. The judges shall ask the administrator of elections to check the original permanent registration records if the voter claims to be registered but has no duplicate permanent registration record.
. . . .
(a) If the judges determine unanimously that the person is not entitled to vote, the person shall vote by paper ballot and the person’s ballot shall be deposited in a sealed envelope marked “Rejected” with the person’s name, the reason for rejection, and the signatures of the judges written on it.
(b) If the judges do not agree unanimously to rejection, the person shall be permitted to vote as if unchallenged.”
Thus, in order to prevent a prospective voter from voting in a party’s primary, the voter must:
Be recognized by a Party “challenger” before casting a vote;
Be challenged on the spot; and
Have that challenge adjudicated unanimously by three previously-appointed Party judges.[15]
Then—but only then—could it conceivably become illegal for a voter to attempt to vote in a particular party’s primary.[16] For obvious reasons, however—namely, that it is impossible and economically infeasible to carry out party purity challenges across the state in primary elections during which several hundred thousand (or more) votes are often cast—this process simply does not occur in nature. As such, in practice, nothing prevents a traditionally Democratic voter from voting in the Republican Party’s primary or vice versa. Under Tennessee law, such a practice—whether pursued for nefarious reasons or otherwise—is perfectly legal unless and until the voter’s right to participate has specifically been challenged by a party official and formally adjudicated against her.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] This particular incident also prompted State Election Coordinator Mark Goins to send a threatening letter – illegally, in the author’s view – to all 475 county Election Commissioners indicating that “they will be subject to removal by the State Election Commission” if they vote in another party’s primary. See Andy Sher, Tennessee’s county election commissioners can only vote in their party’s primary, Times Free Press (Jul. 28, 2014), http://www.timesfreepress.com/news/local/story/2014/jul/28/county-election-commissioners-can-only-vote-in/262916/. At the time, at least one attorney spoke out against the policy to note – correctly, in the author’s view – that such a threat violated the First Amendment. Id. (“the state’s new directive is already coming under fire from Chattanooga attorney Jerry Summers, a Democratic member on the Hamilton County Election Commission. Summers said Saturday in an interview that he doesn’t believe the state’s order passes muster under federal guarantees of free speech and assembly under the U.S. Constitution.”).
[2]See, e.g., Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (“In northeast Tennessee, Republicans are all but guaranteed a victory come November, meaning that it is very often the case that the primary election is, for all intents and purposes, “the race,” as Lt. Governor Ramsey himself noted when asked for his stance on the primary question. For that reason, liberal voters who want to actually have some say in the election may do well to cross over in late summer to nominate a Republican candidate whose views align closer to their own.”).
[3]See, e.g., Seok-ju Cho and Insun Kang, Open primaries and crossover voting, Journal of Theoretical Politics (2014).
[7] Jeff Woods, Devil Woman: Scorned by her own political party, Rosalind Kurita is defiant and determined, The Nashville Scene (Oct. 23, 2008), http://www.nashvillescene.com/nashville/devil-woman/Content?oid=1198631 (“Barnes contested the results, charging essentially that Republicans commandeered the Democratic primary by organizing a crossover campaign”); David J. Luciano, The flip side of the 9/13 Kurita/Barnes Executive Committee hearing, Clarksville Online (Sep. 17, 2008), http://www.clarksvilleonline.com/2008/09/17/the-flip-side-of-the-913-kuritabarnes-executive-committee-hearing/ (“It was proven that a significant [sic] higher number of voters who historically vote in Republican primaries switched over to vote in the Democratic primary in this election. The suggestion is that Rosalind Kurita used her ties to Ron Ramsey, who had pledged openly to “help her in any way [he] could” to turn out Republican voters to vote for her in an attempt to maintain Republican leadership of the Senate.”).
[8]See Kurita v. State Primary Bd. of Tennessee Democratic Party, 2008 WL 4601574 (M.D. Tenn. Oct. 14, 2008) aff’d, 472 F. App’x 398 (6th Cir. 2012).
[9] Ky. Rev. Stat. Ann. § 116.055 (“Before a person shall be qualified to vote in a primary election, he shall possess all the qualifications required of voters in a regular election. In addition, he shall be a registered member of the party in whose primary election he seeks to vote, and shall have been registered as a member of that party on December 31 immediately preceding the primary election, or, in the case of new registrations made after December 31 immediately preceding the primary election, he shall have registered and remained registered as a member of that party. No person shall be allowed to vote for any party candidates or slates of candidates other than that of the party of which he is a registered member. The qualifications shall be determined as of the date of the primary, without regard to the qualifications or disqualifications as they may exist at the succeeding regular election, except that minors seventeen (17) years of age who will become eighteen (18) years of age on or before the day of the regular election shall be entitled to vote in the primary if otherwise qualified. However, any registered voter, whether registered as a member of a party, political organization, political group, or as an independent, shall be qualified to vote in primary elections for candidates listed in all nonpartisan races.”)
[10] Iowa Code Ann. § 43.42 (“Any registered voter may change or declare a party affiliation at the polls on election day and shall be entitled to vote at any primary election. Each voter doing so shall indicate the voter’s change or declaration of party affiliation on the voter’s declaration of eligibility affidavit.”).
[11] The Tennessee Democratic Party’s bylaws do not define a “bona fide” member, and they do not establish any affiliations requirements for prospective voters at all. However, the TNDP’s bylaws do expressly allow party members to bring a challenge to a candidate’s status as a bona fide Democrat on the basis that the candidate has “fail[ed] to vote in at least three of the immediate prior five Democratic primaries[.]” See Bylaws of the Tennessee Democratic Executive Committee 2010, Article III, Section 2(l) (“In the event that a county party, in compliance with its Bylaws, challenges a candidate for any office be it local, county, state or federal, against appearing on the ballot as a Democrat for failing to vote in at least three of the immediate prior five Democratic primaries, the challenge shall be referred to the County Party Development Committee which shall by a simple majority vote of the members make a recommendation to the State Party Chair.”) Similarly, the Tennessee Republican Party’s bylaws do not establish specific bona fide membership requirements for voters, but do include flexible affiliation standards for establishing the bona fide status of prospective Republican candidates. See Bylaws of the Tennessee Republican Party, Article IX, Section 1-2.
[13] Of course, Tennessee law requires voters to choose a single party with which to affiliate in each election. See Tenn. Code Ann. § 2-19-107 (“A person commits a Class D felony who: . . . (2) Votes in the primary elections of more than one (1) political party on the same day.”).
[14]See Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959, 1004 (M.D. Tenn. 2012) (“[A]t the time of voting, the voter can simply declare affiliation with the party to vote in [a Party’s] primary election. Although a challenge to such a declaration is permitted under Tennessee law, given [Parties’] limited support and resources, . . . prospects for realistic challenges across the State at the time of the primary voting would be, at best, nominal.”); rev’d and remanded on mootness grounds, Green Party of Tennessee v. Hargett, 700 F.3d 816 (6th Cir. 2012). See alsoEric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (observing that “election officials rarely enforce [the affiliation requirement] at the polls as it is not something they are prepared to deal with.”).
[16] Tenn. Code Ann. § 2-19-107 provides that: “A person commits a Class D felony who: (1) Intentionally and knowing that such person is not entitled to, registers or votes in any manner or attempts to register or vote in any manner where or when such person is not entitled to under this title, including voting more than once in the same election.”
Like all capital cases, the circumstances of Starr Harris’s death were horrific. On June 1, 2010, Ms. Harris was brutally murdered in the woods outside her home. The cause of her death was “strangulation associated with blunt force injuries,” and her body exhibited signs of “extensive trauma to [her] neck and [her] upper torso.” Ms. Harris also had a “gaping” laceration on the right side of her head with a skull fracture beneath it. There was blood under two of Ms. Harris’s fingernails, providing evidence of a struggle. Additionally, the front of Ms. Harris’s shirt had been ripped open while her bra had been pulled down to her waist—possibly suggesting evidence of rape. It goes without saying that the senseless brutality of Ms. Harris’s murder defies explanation.
Based on a combination of Ms. Harris’s phone records and the testimony of a FedEx employee who had unsuccessfully attempted to deliver a package to her on the afternoon of her death, the time of Ms. Harris’s murder was pegged sometime between 1:30 p.m. and 2:16 p.m. Unfortunately, there were no witnesses to Ms. Harris’s murder, and no direct evidence indicated who might have committed it. As is common in murder cases, however, Ms. Harris’s husband—Thomas Harris—was immediately investigated as a suspect.
The investigation that followed quickly gave rise to substantial suspicious evidence. First, the special agent investigating Ms. Harris’s murder noticed visible scratches on Mr. Harris’s hand and left forearm that could have been consistent with a struggle. Further, several gray hairs that were collected from Ms. Harris’s left hand were believed to be her husband’s. Mr. Harris’s DNA was also found in samples obtained from Ms. Harris’s rape kit. Even more strangely, phone records reflected that Mr. Harris’s cellphone had been “inactive” from 1:32 p.m. to 2:19 p.m. on June 1, 2010—which was precisely the time period when Ms. Harris was believed to have been killed. Moreover, it soon became clear that Mr. Harris had been having an extramarital affair with another woman at the time of Ms. Harris’s death. In fact, it turned out that Mr. Harris had lied to Ms. Harris on the day that she was killed while simultaneously planning a tryst with his ex-wife that evening. Significantly, Mr. Harris also failed to mention any of this in multiple written statements that he gave to police.
After being accused of sexually harassing a city clerk, Mr. David Young – then the city administrator for the City of LaFollette – was fired by a majority vote of the LaFollette City Council. Thereafter, Mr. Young sued the City in Circuit Court for retaliatory discharge under the Tennessee Public Protection Act.[1] In his complaint, Mr. Young requested a jury trial, which the City opposed. Ultimately, the dispute over whether Mr. Young was entitled to a jury trial was appealed to the Tennessee Supreme Court. After considering several disparate constitutional and statutory provisions, the court concluded that Mr. Young had neither a constitutional nor a statutory right to have his case tried by a jury, and thus, his request for a trial by jury was denied.
Initially, the City argued that the Government Tort Liability Act (GTLA) expressly precluded a right to trial by jury. The GTLA specifically states that claims brought under its provisions shall be tried “without the intervention of a jury.”[2] According to the court, however, the Tennessee Public Protection Act is “an independent statute which establishes its own rights and remedies apart from the procedures that apply under the GTLA.”[3] Thus, the GTLA’s prohibition against jury trials did not apply.
Separately, the Tennessee Constitution expressly includes a right to trial by jury. Specifically, Tenn. Const. art. I, § 6 provides that “the right of trial by jury shall remain inviolate[.]” Notwithstanding this apparent clarity, however, the Tennessee Supreme Court has held repeatedly that art. I, § 6 only provides a narrow right to trial by jury for claims that “existed at common law.”[4] Incongruously, in practical terms, this means that the Tennessee Constitution only guarantees a right to trial by jury for claims that existed “under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”[5] In this particular case, because the Tennessee Public Protection Act “was enacted by the Tennessee Legislature in 1990, almost two hundred years after the adoption of the first Tennessee Constitution,” the court explained that art. I, § 6 did not apply to Mr. Young’s retaliatory discharge claim, either.[6]
[Author’s note: After being posted, this article was accepted for publication in the Southern Methodist University, Dedman School of Law Science and Technology Law Review. It is available at my SSRN author page here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2704630. The full citation is: Daniel A. Horwitz, A Picture’s Worth A Thousand Words: Why Ballot Selfies Are Protected By The First Amendment, 18 SMU Sci. & Tech. L. Rev. __ (2015).]
A Picture’s Worth A Thousand Words: Why Ballot Selfies Are Protected By The First Amendment
On September 9, 2014, Andrew Langlois walked into his polling place disgusted with the candidates who were running for U.S. Senate in the New Hampshire Republican Primary.[1] Rather than voting for one of the ten candidates who appeared on his ballot, Mr. Langlois instead decided to vote for “his recently-deceased dog, ‘Akira,’” whom he selected as a write-in candidate.[2] Thereafter, Mr. Langlois whipped out his smartphone, snapped a photo of his completed ballot, and posted the photo to his Facebook page along with the caption: “Because all of the candidates SUCK, I did a write-in of Akira.”[3]
Unfortunately for Mr. Langlois, the election did not go his way. To start, Akira failed to win the Republican Party’s nomination—instead, that honor went to former Massachusetts Senator Scott Brown, who went on to lose the general election to incumbent New Hampshire Senator Jeanne Shaheen.[4] Adding insult to injury, Mr. Langlois also received a call from the New Hampshire Attorney General’s Office, which “explained that he was being investigated for posting his ballot on social media” in violation of a recently enacted New Hampshire law that prohibited “taking a digital image or photograph of [one’s] marked ballot and distributing or sharing the image via social media or by any other means.”[5] New Hampshire, for its part, is not alone in prohibiting voters from photographing and sharing photographs of their marked ballots—which have since become known as “ballot selfies.” In fact, according to a recent CBS report on the issue, “ballot selfies are against the law” in thirty-five states, and violators are frequently subject to being “punished with fines, invalidated ballots, or even jail time.”[6]
Along with two other voters who had posted photos of their ballots on social media during New Hampshire’s September 2014 primary election, Mr. Langlois took up the torch of New Hampshire’s “live free or die” tradition and sued his state in federal court.[7] Along with State Representative Leon Rideout and first-time candidate Brandon Ross—both of whom had publicly memorialized their own candidacies by taking ballot selfies[8]—Mr. Langlois argued that New Hampshire’s ban on ballot photography abridged his rights to freedom of speech and freedom of expression in violation of the First Amendment to the United States Constitution.[9] In an August 11, 2015, opinion, U.S. District Court Judge Paul Barbadoro agreed, holding that New Hampshire’s ballot selfie ban was “invalid because it is a content-based restriction on speech that cannot survive strict scrutiny.”[10] A similar ruling from the U.S. District Court for the Southern District of Indiana quickly followed suit.[11]
Unexpectedly, Judge Barbadoro’s ruling quickly set off a firestorm in the election law world. Within a week, U.C. Irvine Professor Rick Hasen had penned an article in Reuters entitled: Why the Selfie is a Threat to Democracy, in which he argued that Judge Barbadoro “made a huge mistake because without the ballot selfie ban, we could see the reemergence of the buying and selling of votes—and even potential coercion from employers, union bosses and others.”[12] Of note, Professor Hasen was not alone in expressing these feuters entitled: istrict of Indiana quickly followed suit. of State, et al., ve because they leave open sfy strict scruinty. ars.[13] For example, according to Doug Chapin, director of the program for excellence in election administration at the University of Minnesota, “ballot selfies create a vulnerability in the election process that vastly outweighs any societal or personal benefit the selfie brings.”[14]
Despite the concerns expressed by authorities like Professor Hasen, Mr. Chapin and others, however, Judge Barbadoro was correct in holding that ballot selfies are protected by the First Amendment. To begin, “as a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”[15] Because ballot selfie prohibitions forbid individuals from sharing one type of image—a photograph of a marked election ballot—but not other images, there is little doubt that such laws represent a content-based restriction on speech.[16] As a result, such laws must satisfy an onerous legal standard known as “strict scrutiny.”[17] To uphold a law under this standard, the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.[18] Unfortunately for proponents of ballot selfie bans, however, the Supreme Court has described strict scrutiny as a “well-nigh insurmountable burden,”[19] and vanishingly few laws can overcome it. In particular, ballot selfie bans cannot satisfy strict scrutiny for three reasons.
First, assuming that preventing vote buying qualifies as a compelling governmental interest, ballot selfie bans are not narrowly tailored to achieve this objective.[20] In particular, blanket prohibitions on ballot photography fail to satisfy strict scrutiny because they unnecessarily restrict a substantial amount of protected political speech while simultaneously doing nothing to prevent far simpler methods of vote buying.[21] Second, the “compelling” nature of the government’s interest in enacting sweeping laws to guard against vote buying is subject to considerable doubt,[22] given that vote buying is so rare as to be statistically non-existent even in jurisdictions where it is theoretically easy to accomplish.[23] Third, because in most cases voters have the ability to change their votes even after photographing their ballots,[24] a ballot selfie does not actually provide a would-be vote buyer any assurance that a voter has cast his or her ballot in a particular way—rendering the entire premise behind ballot photography prohibitions completely baseless.
This Article addresses each of these issues in turn. Part I explains why prohibitions on ballot selfies are not narrowly tailored to accomplish their intended goal of prohibiting vote buying. Part II addresses the governmental interests that purportedly justify ballot selfie prohibitions, and it explains why ballot selfie bans do not in fact address an “actual problem” that is in need of solving. Part III expounds on these problems by explaining why ballot selfies do not even provide a would-be vote buyer any assurance that a voter has actually cast his or her ballot in a particular way, rendering the ballot selfie a valueless method of facilitating voter fraud. Taken together, Part IV concludes that ballot selfies are a constitutionally protected form of political speech, and that the widespread efforts to prohibit their distribution cannot withstand constitutional scrutiny.
I. Prohibitions on Ballot Selfies Are Not Narrowly Tailored To Prohibit Vote buying
Adopting the mindset of the many legislators who have supported ballot selfie prohibitions, suppose that vote buying were a huge problem—as it unquestionably was back in the nineteenth and early twentieth centuries.[25] Next, suppose that you were a legislator seeking to fix this problem. Would prohibiting voters from photographing their ballots and distributing the images on social media do the trick?
The answer to this question, as Professor Hasen correctly argues, is yes—but only in part, and not even particularly well at that.[26] Certainly, if vote buying were a problem, then a ballot selfie prohibition could theoretically derail a vote-buying arrangement in one instance: a situation in which a voter is promised money to vote for a specific candidate, and the voter offers proof that he voted for that particular candidate by transmitting a photograph of his completed ballot.
But what about other types of vote-buying arrangements? In particular, what about the simplest vote-buying arrangement of all—absentee ballot vote buying—which can be accomplished at home outside the comparatively well-surveilled setting of a polling place?[27] In the 2004 presidential election, for example, more than one in every seven votes were cast by absentee ballot.[28] Additionally, by 2012, twenty-seven states and Washington, D.C. offered voters “no-excuse” absentee voting, which allows any registered voter to vote by absentee ballot for any reason.[29] Plainly, ballot selfie bans do nothing to curb this far simpler type of vote-buying fraud, which could theoretically affect several million ballots cast each year.
Further, what about the other possible vote-buying arrangements that take place inside a polling place? Professor Hasen correctly notes that in the exceedingly rare instances in which vote buying does occur today, “it usually requires the cooperation of someone in the polling place to verify how people voted.”[30] Ballot selfie bans, however, do nothing to root out such internal corruption. Similarly, in virtually every jurisdiction in the United States, a voter who claims to be disabled is permitted to bring another person into the voting booth with him to help him cast his ballot.[31] In fact, in Professor Hasen’s home state of California, not one but “two persons selected by the voter” can join such a voter inside the voting booth.[32] Certainly, this kind of accommodation can be exploited by eager vote buyers just as easily as a vote-buying arrangement involving ballot selfies. However, a ballot selfie ban accomplishes nothing in the way of preventing this potential avenue for vote buying, either.
Given these problems, ballot selfie prohibitions are substantially under-inclusive because they selectively preclude only one theoretical method of vote buying—ballot photography—while doing nothing to prevent far simpler methods of accomplishing the same result. “Laws that are underinclusive,” however, “cannot be narrowly tailored” in keeping with strict scrutiny.[33] As the Supreme Court has explained, “a law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on [protected] speech, when it leaves appreciable damage to [a] supposedly vital interest unprohibited.”[34] Thus, ballot selfie prohibitions are insufficiently protective to satisfy strict scrutiny’s narrow tailoring requirement.
Conversely, ballot selfie bans fail the constitutional “narrow tailoring” requirement in another way: they are substantially over-inclusive in what they prohibit. Specifically, prohibitions on ballot photography and ballot photo sharing do not simply prevent fraudsters from transmitting photographed ballots for the purpose of vote buying.[35] Instead, they prohibit all people from distributing photographed ballots for any purpose at all—regardless of whether or not they have a legitimate basis for doing so.[36] Thus, ballot selfie bans similarly fail to satisfy strict scrutiny because they sweep within their net a great deal of protected political speech that is completely unrelated to the government’s interest in preventing vote buying.[37]
Without a doubt, by “ensnar[ing] a large number of voters wishing to make a political point or expressing their pride in voting or recording the moment for some innocuous personal reason,”[38] categorical prohibitions on sharing images of one’s ballot cast an unnecessarily wide net over protected and unprotected speech alike, rendering such laws fatal to any serious claim of “narrow tailoring.”[39] As Gilles Bissonnette—the legal director of the ACLU of New Hampshire—has astutely quipped: “The best way to combat vote buying and coercion is to investigate and prosecute cases of vote buying and coercion.”[40]
Furthermore, although election-related selfies have been criticized as a valueless “generational” phenomenon, the reality is that being able to distribute a photograph of one’s ballot truly does carry tremendous social value for several reasons.[41] First, ballot selfies frequently represent personal endorsements of candidates for public office, and political endorsements are indisputably protected by the First Amendment.[42] As such—personal vanity aside—the ballot selfie represents a treasured and quintessentially protected form of core political speech, thus falling within a realm in which the Supreme Court has held repeatedly that “the First Amendment has its fullest and most urgent application,”[43] and where “the importance of First Amendment protections is at its zenith.”[44]
Furthermore, as any number of individuals have observed, “a lot of people like to take pictures of their ballot because they’re excited about voting and participating in the process.”[45] For example, as ACLU of Indiana Legal Director Ken Falk has explained, “[t]aking a picture of one’s ballot and sharing it with family and friends is an expression of pride and enthusiasm about voting.”[46] Consequently, proudly sharing one’s voting experience and political preferences on social media represents “a positive sign of civic engagement”[47] that should be welcomed and perhaps even encouraged in a political climate in which many voters—especially young voters—never vote at all.[48] Similarly, as in the case of Mr. Langlois and others, a ballot selfie can also serve precisely the opposite purpose as well—offering a public and equally valuable expression of disgust with one’s voting options.[49]
Finally, freedom of expression notwithstanding, being able to photograph one’s ballot can also provide valuable information about malfunctioning ballot machines.[50] For example, in 2012, a Perry County, Pennsylvania voter used his smartphone to record a widely disseminated video that demonstrated his voting machine switching his vote from Barack Obama to Mitt Romney.[51] After election officials reviewed the voter’s video, the machine was promptly taken out of service.[52] Notably, a non-trivial number of similar “vote-flipping” claims have also been alleged in recent years,[53] although such claims can often be viewed as self-serving, and actual proof of malfunctioning ballot machines has been rare. Consequently, photographic evidence of a malfunctioning electronic ballot machine offers helpful, substantive proof that a machine is in fact malfunctioning, and it facilitates prompt replacement in the event that one is. In this fashion, giving the public the right to document and expose such problems when they occur plainly enhances voter confidence in the integrity of the election process, rather than diminishing it.
In sum, even if vote buying were commonplace, ballot selfie bans have two substantial problems that render them unable to satisfy the Constitution’s “narrow tailoring” requirement. Specifically, they are simultaneously both under-inclusive and over-inclusive, and thus, they are insufficiently narrowly tailored to achieve the government’s stated goal of preventing vote buying.[54] In particular, ballot selfie bans are substantially under-inclusive in their protection because they do nothing to guard against far simpler means of vote buying, such as absentee vote buying.[55] Simultaneously, ballot selfie bans are substantially over-inclusive in what they prohibit because they criminalize a vast amount of protected speech that is unnecessary to achieve the government’s purportedly compelling goal.[56] For both of these reasons, blanket prohibitions on ballot selfies cannot satisfy strict scrutiny, and they violate the First Amendment as a result.
II. Vote buying Is Statistically Non-Existent
Stepping out of the world in which vote buying was assumed to be a problem that needed fixing, let us return to the real world: one in which vote buying occurs with infinitesimal frequency, rendering the “compelling” nature of the government’s interest in enacting sweeping laws to guard against it subject to considerable doubt. In addition to proving that a law abridging protected speech is narrowly tailored, in order to satisfy strict scrutiny in the context of the First Amendment, the government must also “specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.”[57] Moreover, “[t]his burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on . . . speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”[58] With respect to vote buying, however, no “actual problem” exists, and for the reasons explained in Section III, prohibiting ballot selfies would not solve the problem even if one did.[59]
To be sure, as Professor Hasen argues and as Judge Barbadoro acknowledged, “[t]here is no doubt that vote buying and voter coercion were at one time significant problems in the United States.”[60] Voters have not always voted by secret ballot throughout American history, which once made vote buying and voter coercion commonplace.[61] Indeed, around the turn of the twentieth century, political parties printed their own ballots in “flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance,” and they paraded people to the polls en masse in an effort to provide a coercive, conspicuous and public spectacle of voters’ ballot selections.[62] Further, prior to the implementation of the secret ballot, approaching a polling place was often akin to “entering an open auction,” with rival political parties competing vigorously to bribe voters to accept their pre-printed ballots, and then paying them for their vote immediately after they had cast it.[63] Practices like this resulted in an estimated incidence of vote buying of sixteen percent in Connecticut in 1892[64] and twenty percent in New York City in 1887,[65] which represents an almost unimaginably high degree of voter fraud. Notably, as Professor Hasen explains, voter turnout also “went down as each state adopted the secret ballot,” lending additional support to the argument that vote buying and voter coercion were to blame.[66]
While there are crucial differences between the historical traditions that took place before the secret ballot was adopted and the voluntarily exposed ballot made possible today by personal ballot photography and social media photo sharing, there is also another historical development to consider: today, vote buying effectively does not exist anywhere in the United States—even in the many jurisdictions where it is easy to accomplish. As noted in Section I, for example, at present, a majority of states offer “no-excuse absentee voting,” meaning that anyone who wishes to do so is eligible to vote by mail.[67] Despite the widespread availability of absentee voting in most U.S. jurisdictions, however, Oregon and Washington stand out in this regard. In these two states, voters are not only offered the option of absentee voting; instead, all Oregon and Washington elections are conducted by mail.[68] Thus, if vote buying were a problem, then one would reasonably expect to find it in the Pacific Northwest.
Lowering expectations, Professor Hasen acknowledges that “[t]hese days in the United States, vote buying is relatively rare.”[69] But exactly how rare? For example, out of the more than 21.6 million combined absentee ballots that have been cast in Oregon primary and general elections since the state adopted universal vote-by-mail balloting in 1998,[70] what proportion have given rise to concerns about vote buying? One percent? One-tenth of one percent? One one-hundredth of one percent?
According to the Oregon Secretary of State’s office, the answer is one.[71] Not one percent, mind you. Instead, out of nearly twenty-two million absentee ballots that Oregon voters have cast in the past two decades,[72] there has been only a single demonstrated instance of attempted vote buying.[73] For the sake of comparison, nearly three-dozen UFO sightings have occurred during the same time period,[74] and Owlcapone—Salem, Oregon’s merciless, hat-stealing attack owl—has terrorized at least four innocent joggers during the past year alone.[75] Thus, as far as Oregon is concerned, “vote buying is relatively rare” indeed.[76]
Oregon is not alone, however. In response to an identical public records request about vote buying in Washington state, for example, the Washington Secretary of State’s Office indicated that it could find no record of any vote-buying prosecution “in the last 15 years or more,” during which time more than twenty-five million absentee ballots were cast.[77] And lest one be tempted to presume that Oregon and Washington are simply delinquent in investigating vote-buying schemes, it is worth noting that their experiences are in no way anomalous. According to Judge Barbadoro’s opinion, for example, New Hampshire’s experience reflects the very same reality, as “there have been no vote buying prosecutions and no complaints of vote buying in the state since at least 1976.”[78] Further, with respect to the specific concern of vote buying facilitated by ballot selfies, Indiana’s Attorney General was “unable to point to a single instance in which digital photography facilitated vote buying or selling, despite the fact that . . . approximately two-thirds of Americans own and/or use a smartphone with a camera and approximately three-quarters of Americans participate in some type of social media website.”[79] The dearth of vote-buying prosecutions anywhere else in the United States further confirms this pattern.[80] Thus, despite the occasional “isolated and anachronistic” instance of vote buying in one jurisdiction or another,[81] statistically speaking, vote buying is non-existent.
III. Ballot Selfies Generally Do not Reflect a Completed Ballot
Finally, setting aside the many concerns expressed above, suppose that vote buying were both a serious problem and that prohibiting voters from photographing their completed ballots would be an effective way to address it. What then? Would the nation’s many ballot selfie bans finally be able to survive strict scrutiny?
Unfortunately for proponents of such measures, the answer is still no, and for a simple reason: as a matter of practical reality, ballot selfies do not actually reflect a completed ballot. Thus, rather than equipping a voter with “the tools to sell [his or her] vote” or making it possible for a voter to “get forced to vote one way or another,” as Professor Hasen contends, in practice, permitting ballot selfies does no such thing.[82]
In most jurisdictions, regardless of whether a ballot is marked electronically or by hand, a voter’s “completed” ballot is still subject to alteration before it is formally cast.[83] In jurisdictions that use electronic ballots, for example, the electronic balloting software generally permits a voter to return to any portion of his or her ballot and to change any prior selection before the ballot is submitted.[84] Similarly, in paper ballot jurisdictions, a voter who snaps a selfie of a marked ballot can generally request a new ballot or intentionally “spoil” the ballot—for example, by selecting two people for the same office—in order to be entitled to a new one.[85]
Given this reality, anybody who is interested in vote buying gains nothing in the way of actual verification by reviewing a ballot selfie—which is self-evidently a prerequisite to the effectiveness of such a scheme. It is true that a ballot selfie reflects that a voter marked her ballot in a certain way at the moment the photo was taken. But was the ballot altered thereafter? Only the voter herself can answer this question, rendering any such vote-buying strategy valueless.
To illustrate this problem in practice, below are a pair of ballot selfies that I snapped while voting in the September 10, 2015, Metropolitan runoff election held in Nashville, Tennessee. Plainly, based on these photos, attempting to figure out whom I supported for Mayor is not possible. The first photo reflects a vote for mayoral candidate David Fox. The second photo reflects a vote for mayoral candidate Megan Barry. The third photo reflects the final page that appears before one’s ballot is actually counted, and it permits voters to select a “Return to ballot” button and to change a selection in any contest before the ballot is formally cast. Notably, this final page does not contain any information about my ballot selections whatsoever.
The same is true of photographed paper ballots. Like snapshots of an electronic ballot, a photograph of a paper ballot reflects that a voter marked her ballot in a certain way only at the moment the photo was taken—rather than documenting a vote that was actually cast.[86] If a voter wants to switch one of her votes or makes a mistake, however, then the voter may simply request a new ballot and begin again.[87] For example, sticking with Tennessee, the applicable section of the state election code provides that “[i]f any voter spoils a paper ballot, the voter may obtain others, one (1) at a time, not exceeding three (3) in all, upon returning each spoiled one.”[88] Thus, with respect to paper ballots, too, a ballot selfie does not provide a would-be vote buyer any assurance that a voter has actually cast his or her ballot in a particular way, rendering any such scheme ineffectual.
IV. Conclusion
In sum, laws that prohibit ballot photography and distribution represent content-based restrictions on core political speech, and states’ widespread efforts to prohibit ballot selfies cannot withstand constitutional scrutiny. The problems with such prohibitions are multifaceted. First, ballot selfie prohibitions are not narrowly tailored because they unnecessarily restrict a substantial amount of protected speech while simultaneously doing nothing to prevent far simpler forms of vote buying. Second, the government’s purportedly compelling need to prohibit personal ballot photography in order to prevent vote buying is highly questionable in light of the fact that vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish. Third, because voters generally have the ability to change their votes after photographing their ballot selections, ballot selfies represent a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless.
[4]. Full 2014 primary election results in New Hampshire, WMUR Manchester (Sept. 9, 2014, 12:00 AM), www.wmur.com/politics/full-primary-election-results-in-new-hampshire/27883790; Senate: New Hampshire (Shaheen vs Brown), CNN Politics (Nov. 5, 2014, 3:28 PM), www.cnn.com/election/2014/results/state/NH/senate.
[5]. N.H. Rev. Stat. Ann. § 659:35 (2014); Rideout, 2015 WL 4743731, at *7.
[6]. Illegal voter “ballot selfies” flood social media (CBS This Morning broadcast Nov. 5, 2014), http://www.cbsnews.com/videos/illegal-voter-ballot-selfies-flood-social-media. Notably, however, some states have taken the opposite approach. For example, ballot selfies are expressly permitted in Arizona and Utah. See Ariz. Rev. Stat. Ann. § 16-1018(4) (Supp. 2015) (West) (“A voter who makes available an image of the voter’s own ballot by posting on the internet or in some other electronic medium is deemed to have consented to retransmittal of that image and that retransmittal does not constitute a violation of this section.”); Utah Code Ann. § 20A-3-504(3) (West Supp. 2015) (“Subsection (1) does not prohibit an individual from transferring a photograph of the individual’s own ballot in a manner that allows the photograph to be viewed by the individual or another.”).
[7]. Erik Eckholm, Selfies in Voting Booths Raise Legal Questions on Speech and Secrecy, N. Y. Times (Aug. 24, 2015), www.nytimes.com/2015/08/25/us/selfies-in-voting-booths-raise-legal-questions-on-speech-and-secrecy.html?_r=0.
[8]. Kristen Carosa, Lawsuit challenges law forbidding posting pics of ballots, WMUR Manchester (Oct. 31, 2014, 10:52 PM), http://www.wmur.com/politics/lawsuit-challenges-law-forbidding-posting-pics-of-ballots/29466942
[11]. Order Granting Preliminary Injunction, Ind. Civil Liberties Union Found. v. Ind. Sec’y of State, et al., No. 1:15-cv-01356-SEB-DML (S.D. Ind. Oct. 19, 2015), http://www.aclu-in.org/images/newsReleases/DECISION_1_15-cv-1356-SEB-DML_ICLU_v_IN_SOS_10-19-2015.pdf.
[12]. Richard L. Hasen, Why the Selfie is a Threat to Democracy, Reuters (Aug. 18, 2015, 8:47 PM), blogs.reuters.com/great-debate/2015/08/17/why-the-selfie-is-a-threat-to-democracy/.
[13]. Eckholm, supra note 7; see also Donna Ballman, Why Ballot Selfies Are A Terrible Idea For Workers, Lexis Nexis Legal Newsroom (Aug. 31. 2015, 11:33 AM), http://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-blogs/archive/2015/08/31/why-ballot-selfies-are-a-terrible-idea-for-workers.aspx.
[15]. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983) (quoting Police Department v. Mosley, 408 U.S. 92, 95 (1972)).
[16]. See, e.g., Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”); see also Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *9 (D.N.H. Aug. 11, 2015) (“the law under review is content based on its face because it restricts speech on the basis of its subject matter. The only digital or photographic images that are barred . . . are images of marked ballots that are intended to disclose how a voter has voted. Images of unmarked ballots and facsimile ballots may be shared with others without restriction. In fact, the law does not restrict any person from sharing any other kinds of images with anyone.”); Order Granting Preliminary Injunction, supra note 11, at 6 (holding that, because Indiana’s ballot selfie prohibition “clearly defines the regulated expression according to its subject matter and its purpose, it is properly construed as being content based ‘on its face.’”).
[17]. See Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011).
[18]. See, e.g., Sable Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (“The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.”); Brown, 131 S. Ct. at 2738 (“Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.”).
[23]. See generally, Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *4–6 (D.N.H. Aug. 11, 2015) (providing an overview on vote buying throughout American history and how it has become close to obsolete in modern voting).
[24]. See e.g., Me. Rev. Stat. tit. 21-A, § 693 (1964); Ark. Code Ann. § 7-5-604 (2011); W. Va. Code § 3-4A-9 (2015).
[27]. Sarah Jane Capper & Michael Ciaglo, The Real Vote-Fraud Opportunity Has Arrived: Casting Your Ballot by Mail, NBC News (Sept. 25, 2012, 7:13 AM) http://investigations.nbcnews.com/_news/2012/09/25/14092264-the-real-vote-fraud-opportunity-has-arrived-casting-your-ballot-by-mail (“[V]ote buying and bribery could occur more easily with mail voting and absentee voting. . . . A person who bribes mail voters could watch as they mark ballots or even mark ballots for them.”).
[28]. John C. Fortier, Absentee and Early Voting: Trends, Promises, and Perils, Am. Enter. Inst. 22–23 (2006), http://www.aei.org/wp-content/uploads/2014/06/-absentee-and-early-voting_155531845547.pdf (“Over 123 million votes were cast in the 2004 general election. Of those, nearly 18 million, or 14.5 percent, were cast absentee.”).
[31]. See e.g., Tex. Elec. Ann. § 64.031 (West 2015); Tenn. Code Ann. § 2-7-116 (2014); Mont. Code Ann. § 13-13-119 (2015).
[32]. Cal. Elec. Code § 14282 (West 2015) (“When a voter declares under oath, administered by any member of the precinct board at the time the voter appears at the polling place to vote, that the voter is then unable to mark a ballot, the voter shall receive the assistance of not more than two persons selected by the voter, other than the voter’s employer, an agent of the voter’s employer, or an officer or agent of the union of which the voter is a member.”).
[33]. Rosemond v. Markham, No. CV 13-42-GFVT, 2015 WL 5769091, at *9 (E.D. Ky. Sept. 30, 2015).
[34]. Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2232 (2015) (quoting Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002)) (internal quotation marks omitted).
[35]. See Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *14 (D.N.H. Aug. 11, 2015).
[36]. See e.g., N.H. Rev. Stat. Ann. § 659:35 (2014).
[38]. Order Granting Preliminary Injunction, supra note 11, at 14.
[39]. Id.; see also Rideout, 2015 WL 4743731 at *14 (“In the present case, the state has an obviously less restrictive way to address any concern that images of completed ballots will be used to facilitate vote buying and voter coercion: it can simply make it unlawful to use an image of a completed ballot in connection with vote buying and voter coercion schemes.”).
[45]. Zach Pluhacek, No Ballot ‘Selfies’ in Nebraska, Secretary of State Says, Journal Star (Sept. 4, 2015), http://journalstar.com/news/state-and-regional/nebraska/no-ballot-selfies-in-nebraska-secretary-of-state-says/article_a6a74c18-5f98-5794-b852-e1d21de53b4b.html?mobile_touch=true (“A lot of people like to take pictures of their ballot because they’re excited about voting and participating in the process.”).
[46]. ACLU of Indiana Challenges State Law Prohibiting Ballot “Selfies”, Am. Civil Liberties Union (Aug. 27, 2015), https://www.aclu.org/news/aclu-indiana-challenges-state-law-prohibiting-ballot-selfies; see also Pluhacek, supra note 36. See also http://www.indystar.com/story/opinion/2015/10/26/downs-ballot-selfies-unlikely-corrupt-democracy/74631244/ (“Voters who want to take and share photos of their ballots are showing support for candidates and trying to influence people in their social media networks.”).
[47]. Jack Morse, That ‘Ballot Selfie’ You Just Posted? Yeah, That’s Illegal., SFIST (Nov. 3, 2015, 1:05 PM), http://sfist.com/2015/11/03/that_ballot_selfie_you_just_posted.php (“Assemblyman Marc Levine of San Rafael believes that ‘ballot selfies,’ as they’re (I guess?) called, are a positive sign of civic engagement and should be encouraged.”).
[48]. See Youth Voting, Circle, http://www.civicyouth.org/quick-facts/youth-voting/ (last visited Oct. 18, 2015); see also Jack McElroy, Stand up for freedom; take a ballot selfie, Knoxville News Sentinel (Sept. 13, 2015, 3:00 AM), http://www.knoxnews.com/opinion/columnists/jack-mcelroy-stand-up-for-freedom-take-a-ballot-selfie_77697777 (“It is hard to see what the actual or imminent problem is in Tennessee, either, when a first-time teenage voter, or a newly sworn American, or a get-out-the-vote campaigner or any other citizen proudly and publicly documents the fulfillment of their civic duty. What we need these days are more ballot selfies, a lot more—not a ban to stomp out a problem that doesn’t exist.”).
[49]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *7 (D.N.H. Aug. 11, 2015).
[50]. See, e.g., Richard Locker, Bill Nearing Approval Would Ban Cellphone Pictures, Video at Polling Places, The Commercial Appeal (Apr. 7, 2015, 7:55PM), http://www.commercialappeal.com/news/state/bill-nearing-approval-would-ban-cellphone-pictures-video-at-polling-places_04827022 (quoting a state Representative as saying, “In Davidson County two years ago after the election, the state election coordinator put out a 20-page report on all the improprieties that happened in that election and a lot of that we were able to document using phones and video.”).
[52]. Jaikumar Vijayan, E-voting machine swaps Obama vote for Romney; taken offline, Computerworld (Nov. 6, 2012, 3:30PM), http://www.computerworld.com/article/2493314/government-it/e-voting-machine-swaps-obama-vote-for-romney–taken-offline.html.
[53]. Voting Machine Switching GOP Votes to Democrat in Illinois, YouTube (Oct. 23, 2014) https://www.youtube.com/watch?v=8Pi0whC2nK4; see also Alanna Autler, Voters Report Issues at Maury County Polls, WSMV-TV Nashville (Nov. 6, 2014, 9:35 PM), http://www.wsmv.com/story/26880035/voters-report-issues-at-maury-county-polls; see also Nick Bechtel, Voting Machine Swaps Romney for Obama, Marion Star (Oct. 31, 2012, 6:51 AM), http://www.marionstar.com/article/20121031/NEWS03/310310009.
[54]. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 578 (1993) (“A State may no more create an underinclusive statute, one that fails truly to promote its purported compelling interest, than it may create an overinclusive statute, one that encompasses more protected conduct than necessary to achieve its goal.”).
[55]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *14 (D.N.H. Aug. 11, 2015).
[56]. Proponents of ballot selfie bans are likely to take issue with this assertion by contending that such bans are necessary to further the government’s interest in preventing even the possibility of vote buying or voter coercion. As noted in Section III, however, the bans do not do that.
[57]. Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011) (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 822–23 (2000); see also United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (“The First Amendment requires that the Government’s chosen restriction on the speech at issue be ‘actually necessary’ to achieve its interest.”); Consol. Edison Co. of N. Y. v. Pub. Serv. Comm’n of N. Y., 447 U.S. 530, 543 (1980) (“Mere speculation of harm does not constitute a compelling state interest.”).
[59]. Hasen, supra note 10 (“These days in the United States, vote buying is relatively rare.”).
[60]. Rideout, 2015 WL 4743731, at *4 (citing Doe v. Reed, 561 U.S. 186, 226 (2010) (Scalia, J., concurring) (citing Burson v. Freeman, 504 U.S. 191, 202 (1992) (plurality opinion))); see also Susan C. Stokes et al., Brokers, Voters, and Clientelism: The Puzzle of Distributive Politics 200 (2013); Richard Hasen, Vote Buying, 88 Cal. L.Rev. 1323, 1327 (2000); Jill Lepore, Rock, Paper, Scissors: How We Used To Vote, New Yorker (Oct. 13, 2008), http:// www.newyorker.com/magazine/ 2008/10/13/rock-paper-scissors.
[61]. See generallyBurson, 504 U.S. at 200–01 (“Wishing to gain influence, political parties began to produce their own ballots for voters. These ballots were often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance. State attempts to standardize the ballots were easily thwarted—the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box. Thus, the evils associated with the earlier viva voce system reinfected the election process; the failure of the law to secure secrecy opened the door to bribery and intimidation.”).
[64]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *4 (D.N.H. Aug. 11, 2015) (citing L.E. Fredman, The Australian Ballot: The Story of an American Reform 22 (1968)).
[65]. Id. (citing Stokes et al., supra note 53, at 227).
[70]. Voter Turnout History for General Elections, Or. Sec’y of State, http://sos.oregon.gov/elections/Documents/Voter_Turnout_History_General_Election.pdf; Voter Turnout History for Primary Elections, Or. Sec’y of State, http://sos.oregon.gov/elections/Documents/Voter-Turnout-History-Primary.pdf.
[71]. E-mail from Tony Green, Commc’ns Dir., Or. Sec’y of State, to author (Aug. 31, 2015, 6:27 PM) (on file with author).
[72]. Election Statistics, Or. Sec’y of State, http://sos.oregon.gov/elections/Pages/electionsstatistics.aspx.Of note, this number does not even include local elections that are held in May and November of odd-numbered years or Special elections. Id.
[74]. List of Reported UFO Citings, Wikipedia, https://en.wikipedia.org/wiki/List_of_reported_UFO_sightings (last visited Sept. 1, 2015, at 4:14 PM).
[75]. Hat-Stealing Attack Owl In Oregon Officially Named ‘Owlcapone’, The Huffington Post (Feb. 13, 2015, 9:59AM), http://www.huffingtonpost.com/2015/02/13/owl-attacks-owlcapone-oregon-name_n_6677410.html.
[77]. E-mail from Brenda Galarza, Pub. Records Officer, Wash. Sec’y of State, to author (Sept. 2, 2015, 11:32 AM) (on file with author); e-mail and attached Excel spreadsheet from Brenda Galarza, Pub. Records Officer, Wash. Sec’y of State, to author (Sept. 3, 2015, 3:29 PM) (on file with author).
[78]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *12 (D.N.H. Aug. 11, 2015).
[79]. Order Granting Preliminary Injunction, supra note 11, at 13–14..
[81]. Id. (citing Stokes et al., supra note 53, at 231); see also United States v. Thomas, 510 F.3d 714, 717 (7th Cir. 2007); United States v. Shatley, 448 F.3d 264, 265 (4th Cir. 2006); United States v. Johnson, No. 5:11–cr–143, 2012 WL 3610254, at *1 (E. D. Ky. Aug. 21, 2012).
[83]. See, e.g., Ark. Code Ann. § 7-5-604(4) (2011); 10 Ill. Comp. Stat. 5 / 17-16 (2010); Me. Rev. Stat. tit. 21-A, § 693 (1964); W. Va. Code § 3-4A-9(5) (2015).
[84]. See, e.g., Ark. Code Ann. § 7-5-604(4); W. Va. Code § 3-4A-9(5).
[85]. See, e.g., 10 Ill. Comp. Stat. 5 / 17-16; Me. Rev. Stat. tit. 21-A, § 693.
[86] Andrew Downs, Ballot selfies unlikely to corrupt democracy, IndyStar (Oct. 26, 2015, 1:13 PM), http://www.indystar.com/story/opinion/2015/10/26/downs-ballot-selfies-unlikely-corrupt-democracy/74631244/ (“For vote buying purposes, a photo of a ballot may seem better than a distinguishing mark on a paper ballot, but it is not. A voter could mark the ballot, take the picture and then change the vote. I suspect that there is limited honor among vote buyers.”).
[87]. See, e.g., 10 Ill. Comp. Stat. 5 / 17-16; Me. Rev. Stat. tit. 21-A, § 693.
