Sixth Circuit Panel on Party Line Vote, Over Stinging Dissent by Judge Moore, Rejects Challenge to Tennessee’s Absentee Ballot Verification Procedures

The majority decides the case primarily on standing grounds.

From Judge Moore’s dissent:

Make no mistake: today’s majority opinion is yet another chapter in the concentrated effort to restrict the vote. See, e.g., Raysor v. DeSantis, 140 S. Ct. 2600 (2020) (mem.); Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020); Democratic Nat’l Comm. v. Bostelmann, — F.3d —-, 2020 WL 5951359 (7th Cir. 2020) (per curiam); New Ga. Project v. Raffensperger, — F.3d —-, 2020 WL 5877588 (11th Cir. 2020); A. Philip Randolph Institute of Ohio v. LaRose, — F. App’x —-, 2020 WL 6013117 (6th Cir. 2020); see generally Richard L. Hasen, The 2016 U.S. Voting Wars: From Bad to Worse, 26 Wm. & Mary Bill Rights J. 629 (2018). To be sure, it does not cast itself as such—invoking instead the disinterested language of justiciability—but this only makes today’s majority opinion more troubling. As a result of today’s decision, Tennessee is free to—and will—disenfranchise hundreds, if not thousands of its citizens who cast their votes absentee by mail. Masking today’s outcome in standing doctrine obscures that result, but that makes it all the more disquieting. I will not be a party to this passive sanctioning of disenfranchisement. I dissent….

“While I am saddened, I am not surprised by today’s ruling.” Warshak v. United States, 532 F.3d 521, 538 (6th Cir. 2008) (en banc) (Martin, J., dissenting). That is because many federal courts—more specifically, many federal courts of review—have sanctioned a systematic effort to suppress voter turnout and undermine the right to vote. Rarely does this have anything to do with the merits of the case. No, the effort has not been so bold as that. Most often, Purcell provides the cover—a convenient court-made doctrine that provides plausible deniability sounding in vague cries of “confidence in the electoral process.” See Purcell, 549 U.S. at 4. Today, however, standing is the shroud of choice. Whatever the disguise, the result is the same.

Hiding behind closed courthouse doors does not change the fact that ruling by ruling, many courts are chipping away at votes that ought to be counted. It is a disgrace to the federal courts’ foundational role in ensuring democracy’s function, and a betrayal to the persons that wish to participate in it fully. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are illusory if the right to vote is undermined.”).

On its own, today’s ruling may not—likely will not—change the course of this election. But it is another drop in the bucket that is the degradation of the right to vote in this country. See, e.g., Raysor, 140 S. Ct. at 2600 (“This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.”) (Sotomayor, J., dissenting); Republican Nat’l Comm., 140 S. Ct. at 1211 (“The majority of this Court declares that this case presents a ‘narrow, technical question.’ That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.”) (internal citation omitted) (Ginsburg, J., dissenting); Bostelmann, 2020 WL 5951359, at *13 (“It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day.”) (Rovner, J., dissenting). I fear the day we come out from behind the courthouse doors only to realize these drops have become a flood.

I dissent.


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