IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

Nashville Division

Victor Ashe, Phil Lawson, and the League of

Women Voters of Tennessee,
COMPLAINT
Plaintiffs,
Case No. ____________
v.

Tre Hargett, in his official capacity as

Tennessee Secretary of State; Mark Goins, in
his official capacity as Tennessee Coordinator
of Elections; and Jonathan Skrmetti, in his
official capacity as Tennessee Attorney
General,

Defendants.

Plaintiffs, by and through their attorneys, bring this Complaint against the above-named

Defendants, and state the following in support thereof:

INTRODUCTION

1. Plaintiffs Victor Ashe, Phil Lawson, and the League of Women Voters of

Tennessee bring this action to prohibit Defendants Tennessee Secretary of State Tre Hargett,

Tennessee Coordinator of Elections Mark Goins, and Tennessee Attorney General Jonathan

Skrmetti from enforcing Tennessee Code Annotated Sections 2-7-115(b) and (c) (“Sections 115(b)

and 115(c)”).

2. Sections 115(b) and (c) are criminal laws through which the Tennessee legislature

purports to deter so-called crossover voting, wherein a voter who supports a particular political

party casts a ballot in the primary election of a different political party. But these laws go far

beyond deterring crossover voting and are unconstitutional because they threaten voters, including

primarily those who have no intent to crossover vote, with felony convictions based on nebulous

standards that have no definition under state law and instead are defined by private political parties.
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 3. Specifically, Section 115(b) requires that, to vote in a party’s primary election, a

person must be a “bona fide member of and affiliated with” that party or “declare allegiance” to

it, or else face criminal prosecution. Section 115(c), enacted only months ago, requires that

prominent notices be posted at all polling places to warn voters that they will be subject to

prosecution if they are not a “bona fide member of or affiliated with that political party,” or do not

“declare allegiance to that party[.]”

4. Tennessee law provides no definition of how a voter becomes a “bona fide member

of,” “affiliated with” and/or “allegian[t] to” a political party. As a result, Sections 115(b) and (c)

are unconstitutional on at least two grounds.

5. Section 115(b) is unconstitutionally vague because it fails to provide voters with

fair notice of what conduct it proscribes and provide standardless discretion, delegating to political

parties and prosecuting officials the determination of who has broken the law by voting in a

primary.

6. Sections 115(b) and (c) also—through threats of prosecution based on nebulous and

unknowable standards—violate the First Amendment’s overbreadth doctrine, as they will deter a

far greater range of protected voting conduct than would be needed to protect against a phantom

threat of malicious crossover voting.

7. These statutory provisions leave Plaintiffs and thousands of other Tennesseans

unable to determine whether voting in a primary will subject them to prosecution and jail time. As

a result, these provisions will deter a potentially enormous number of voters from exercising their

fundamental right to vote.

8. Plaintiffs seek relief from this Court to preserve the fundamental right to vote,

and by extension protect our system of representative government.

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 JURISDICTION AND VENUE

9. This action arises under the First and Fourteenth Amendments of the United States

Constitution and 42 U.S.C. § 1983.

10. This Court has subject matter jurisdiction pursuant to Article III of the United States

Constitution and 28 U.S.C. §§ 1331 and 1343.

11. This Court is authorized to issue a declaratory judgment pursuant to 28 U.S.C. §§

2201 and 2202.

12. Venue in this district is proper pursuant to 28 U.S.C. § 1391(b)(1) and (b)(2)

because the Defendants reside in this district and a substantial part of the events giving rise to the

claims occurred in this district.

13. This Court has personal jurisdiction over Defendants Secretary Tre Hargett,

Coordinator of Elections Mark Goins, and Attorney General Jonathan Skrmetti because they are

Tennessee domiciliaries, with their principal offices in Nashville, Tennessee, and their affiliations

with the State of Tennessee are so continuous and systematic as to render them at home in this

State.

14. An actual and justiciable controversy exists between Plaintiffs and Defendants.

THE PARTIES

15. Plaintiff Victor Ashe is a resident of and registered voter in Knox County,

Tennessee. He has voted in federal, state, and local elections, including in primary elections, in the

past and intends to continue to do so in the future. Mr. Ashe is a lifelong Republican voter; he has

served as a Republican Tennessee State Representative and State Senator, the Mayor of Knoxville,

Tennessee, and Ambassador to Poland; and he ran as the Republican nominee for United States

Senate in 1984. Mr. Ashe currently writes a weekly op-ed column for The Knoxville News-

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Sentinel in which he regularly criticizes former President Trump and other Tennessee Republicans,

such as Representative Tim Burchett, whom he publicly chastised recently for his vote to remove

then-Speaker of the House Kevin McCarthy. Mr. Ashe also regularly and forcefully criticizes

Republicans who refused to certify the results of the 2020 election and who have not condemned

the actions of January 6, 2021. As a result, Mr. Ashe reasonably fears that the people in control of

today’s Tennessee Republican Party may not consider him a bona fide member affiliated with the

party and could seek to prosecute him if he votes in the next primary election.

16. Plaintiff Phil Lawson is a resident of and registered voter in Knox County,

Tennessee. Mr. Lawson is a successful real estate developer with a focus on affordable housing

and a civic leader. He established the nonprofit Legacy Housing Foundation as a vehicle for giving

back to affordable housing residents; has served on the boards of the Knoxville Americana Music

Foundation, Knoxville Habitat for Humanity, Wesley House Community Center, WDVX Radio,

the Beck Cultural Exchange Center, and the Historic Tennessee Theatre Foundation; He is a

significant donor to the University of Tennessee; and provides substantial economic support to

civil causes through a foundation he established, The Lawson Family Foundation. Mr. Lawson has

voted in federal, state, and local elections, including in primary elections, in the past and intends

to continue to do so in the future. He identifies as a Democrat and is one the largest donors to the

Tennessee Democratic Party, but he has voted for Republican and Democratic candidates in

general elections and has made financial contributions to both Republican and Democratic

candidates. Mr. Lawson’s support of Republicans means he may not meet the Democratic Party’s

definition of a “bona fide” member. As a result, Mr. Lawson reasonably fears that the people in

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control of today’s Tennessee Democratic Party may not consider him a bona fide member affiliated

with the party and could prosecute him if he votes in the next primary election.1

17. Plaintiff League of Women Voters of Tennessee (“LWVTN” or “the League”) is

a nonprofit, nonpartisan, membership-based, grassroots, political organization whose mission is to

empower voters and defend democracy. LWVTN seeks to promote civic engagement through

informed and active participation in government. It accomplishes this mission in part by helping

Tennessee citizens register to vote, educating voters about the issues that impact them, and

encouraging voters to be active participants in democracy through engaging with elected officials

and their policy decisions. In 2022 over 84,000 Tennesseans used LWVTN’s VOTE411.org to get

reliable voter information.

18. LWVTN is the Tennessee affiliate of the League of Women Voters of the United

States and has over 1,000 members statewide, spread out amongst various local Leagues across

Tennessee. LWVTN has a diverse membership along racial, ethnic, socioeconomic, religious, and

political lines. As a nonpartisan organization that does not support candidates or parties, LWVTN

does not inquire about members’ political affiliations or how members vote; nevertheless,

LWVTN has members who self-identify as Democrats, other members who self-identify as

Republicans, and others who identify as independent voters, all of whom may be subject to

prosecution given the vague terms of the statute. Sections 115(b) and 115(c) are likely to prevent

some League members from voting. Further, given the League’s core mission and activities to

1
While it may seem absurd that a political party would declare that a major contributor is not a
bona fide member, that is exactly what the Republican Party did when it removed Baxter Lee from
the Fifth Congressional District primary ballot in 2022. Mr. Lee had given nearly $100,000 to
Republican candidates. See Georgiana Vines, “Candidate who was kicked off GOP ballot is from
notable Knoxville family,” Knoxville News Sentinel Apr. 26, 2022, available at
https://www.knoxnews.com/story/news/columnists/georgiana-vines/2022/04/25/baxter-lee-kicke
d-off-gop-ballot-has-knoxville-ties-georgiana-vines/7413476001/.
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educate and assist voters, the statute prevents LWVTN from fulfilling its primary function of

providing voter information because it does not know how to inform its members and the general

public accurately and effectively on voting issues related to the upcoming primaries without

subjecting them to potential prosecution and/or subjecting LWVTN to an impossible reporting

standard for promulgating “erroneous” information about permissible voting conduct.2

Additionally, LWVTN will need to budget approximately $3000 to adequately respond to the voter

confusion, intimidation, and uncertainty created by these laws ahead of the 2024 primary election.

This is money that the League would otherwise use on voter registration and get-out-the-vote

efforts.

19. Defendant Tre Hargett is the Secretary of State of Tennessee. As such, he oversees

the State’s election process. Under Tennessee law, he is charged with the administration of

elections in Tennessee. Defendant Hargett is sued in his official capacity only.

20. Defendant Mark Goins is the Tennessee Coordinator of Elections. In this capacity,

he has the express duty to “investigate or have investigated by local authorities the administration

of the election laws and report violations to the district attorney general or grand jury for

prosecution . . .” See Tenn. Code Ann. § 2-11-202(a)(5)(A)(i). Defendant Goins is sued in his

official capacity only.

21. Defendant Jonathan Skrmetti is the Attorney General for the State of Tennessee.

Under Tennessee law, he is empowered to request that the Coordinator of Elections conduct

2
See, e.g., Tenn. Code Ann. § 2-2-142 (h) (“Any person or organization who provides or
publishes erroneous or incorrect information regarding the qualifications to vote, the
requirements to register to vote, whether an individual voter is currently registered to vote or
eligible to register to vote, voter registration deadlines, or polling dates, times, and locations
shall, upon discovery, immediately notify the appropriate county election commission and the
coordinator of elections.”).
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investigations into, and report violation of, election laws. See Tenn. Code Ann. § 2-11-

202(a)(5)(C)(i). Defendant Skrmetti is sued in his official capacity only.

FACTUAL ALLEGATIONS

Modern Primary Elections in Tennessee

22. Primary elections are an increasingly fundamental part of the political process. For

a registered voter to participate effectively in the selection of candidates for a general election in

Tennessee, the registered voter must vote in a political party’s primary election.

23. The most formidable general election candidates, and the subsequent winners of

political elections in Tennessee, are almost always candidates from the dominant political parties

in the state: the Republican Party and the Democratic Party.

24. Voting in a political party’s primary is essential for a registered voter to have a

voice in determining the ultimate candidate for general election and the elected officials who will

hold office.

25. In Tennessee, primary voting is often determinative of general election outcomes.

The current partisan balance in most of the 95 counties in Tennessee makes selection as a party’s

candidate a virtual guarantee of victory in the subsequent general election.

26. While Tennesseans must register to vote as a general matter, they do not and cannot

register as members of any party. In other words, a Tennessean voter cannot be a “registered

Republican” or a “registered Democrat.” When the state holds primary elections, a would-be voter

who otherwise is eligible to vote must select at the polling place which party’s ballot (i.e.,

Democratic or Republican) they intend to fill out. The voter may not fill out a ballot for more than

one party in a given primary. Once a voter has made their selection and deposited their ballot, the

voter’s choice of party ballot is marked and maintained as public record. Because there are no

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formal party voter rolls, voters may—and many often do—switch to vote in a different party’s

primary from one election to the next.

27. For instance, historically and today, some Tennesseans consider themselves

Republicans for national issues and Democrats on state issues. Thus, a given voter may have

chosen a Democratic ballot in Tennessee’s state judicial primary and supported the Democratic

nominee in the general election, and then chosen a Republican ballot in the gubernatorial and

congressional primary and supported the Republican nominees in the general.

Sections 115(b) and 115(c) Purportedly Intend to Criminalize Voting in Primary Elections
Only When “Cross-Over Voting” Takes Place in Primary Elections

28. Sections 115(b) and (c) are criminal laws through which the Tennessee legislature

purports to deter voting by supporters of one political party in the primary elections of other

political parties.

29. Section 115(b), enacted in 1972, states “a registered voter is entitled to vote in a

primary election for offices for which the voter is qualified to vote at the polling place where the

voter is registered 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.

30. Violation of Section 115(b) is punishable under Tennessee Code Annotated §§ 2-

19-102 and 2-19-107.

31. Tennessee Code Annotated Section 2-19-102 reads:

A person commits a Class C misdemeanor if such person knowingly does

any act prohibited by this title, or if such person knowingly fails to do any
act which such person is required to do by this title, or if such person

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 knowingly does any act with the intent that another shall do an act
prohibited by this title.

32. Tennessee Code Annotated Section 2-19-207 reads:

(a) 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;
or

(2) Votes in the primary elections of more than one (1)

political party in an election.

(b) When any person is convicted of a violation of subdivision

(a)(1) or (a)(2), in addition to any other punishment that may
be imposed for the offense, the court shall impose a fine of
one thousand dollars ($1,000). The additional fine shall be
paid to the clerk of the court imposing sentence, who shall
transfer it to the state treasurer, who shall deposit the fine in
the reward pool fund, created by § 40-8-105.

33. While Section 115(b) states that a primary voter must be a “bona fide” member or

“affiliated with” the party in whose primary they vote, there is nothing in the statute that dictates

how or when such membership may be changed, nor whether such membership must be consistent

across all levels of elections, let alone anything in the statute that defines what “bona fide” means.

34. In May 2023, in connection with a growing movement of state politicians to deter

crossover primary voters, the Legislature enacted Section 115(c).

35. Section 115(c) provides that on primary election voting days the officer of elections

at each polling place must post a sign that is a minimum of 8 ½ inches by 11 inches with a yellow

background in bolded, black text contain the following language:

It’s the law! Please read…

It is a violation of Tennessee Code Annotated, Section 2-7-115(b), and

punishable as a crime under Tennessee Code Annotated, Section 2-19-102 or

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 Section 2-19-207, if a person votes in a political party’s primary without being
a bona fide member of or affiliated with that political party, or to declare
allegiance to that party without the intent to affiliate with that party.

Tenn. Code Ann. § 2-7-115(c) (emphasis in original).

36. Section 115(c) requires the officer of elections at each polling place to post the sign

in a prominent, highly visible location within the polling place.

37. Section 115(c) is silent as to what information is provided, if any, and how that

information is provided, to voters who vote absentee and therefore do not vote at a physical voting

place.

Threats of Prosecution

38. Tennessee recently has indicated that it is ready and willing to enforce Section

115(b) and its criminal penalties.

39. In April 2022, Defendant Hargett gave a speech in which he emphasized his intent

to begin enforcing Section 115 (b). As he put it at the time, “[p]eople need to understand when you

go vote in a primary, you are supposed to vote in the primary in which you are a member of the

party. . . . The DA could actually prosecute that if people are willingly going in and voting in the

other party.”3

40. Two months later, in June 2022, Republican candidates challenged the outcomes

of two close elections in Williamson County based on alleged “crossover voting” by specific

Democratic voters. While the Tennessee Republican Party Executive Committee voted to uphold

the election results, its members expressed a desire to preclude Democrats from voting in

Republican primaries, the candidates identified the specific voters who they alleged should not

3
Tennessee Secretary of State, Tre Hargett, speaks at Jackson Rotary Club luncheon, WNBJ,
Apr. 21, 2022, https://www.wnbjtv.com/single-post/tennessee-secretary-of-state-tre-hargett-
speaks-at-jackson-rotary-club-luncheon.
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have been permitted to vote in the election, and similar “discord” “over bonafides and crossover

voting” arose in connection with at least two other primaries, including in a challenge to a mayoral

Republican primary in Hamilton County and in a dispute regarding whether a particular candidate

for U.S. Congress could appear on the Republican primary ballot.4

41. When discussing the issue on the Tennessee House floor, Chairman Rudd claimed

that “there are two people currently under indictment . . . for organizing crossing over into the

other party’s primary . . . .” H.B. 0828, 113th Gen. Assemb. 27th Sess. (Tenn. 2023),

https://tnga.granicus.com/player/clip/28402?view_id=703&redirect=true&h=3d7777e0d1fe502e

02ad334c0d4ea8ee.

42. And during debate on enacting Section 115(c) as part of HB0828 and SB0978, the

bill’s sponsor confirmed that it is “up for conjecture” whether someone could be prosecuted if they

cast a vote in a Republican primary after having historically voted for Democrats in prior elections.

Id.

Sections 115(b) and 115(c) Are Void For Vagueness and

Violate The Due Process Clause of the Fourteenth Amendment

43. Statutes are void for vagueness when they (1) “fail[] to give ordinary people fair

notice” of what conduct is prohibited, or (2) are “so standardless that [they] invite[] arbitrary

enforcement” from authorities who lack direction. Johnson v. United States, 576 U.S. 591, 595

(2015); see also Kolender v. Lawson, 461 U.S. 352, 357 (1983) (noting that the second element of

the doctrine is most significant); Miller v. City of Cincinnati, 622 F.3d 524, 539 (6th Cir. 2010)

(“The void-for-vagueness doctrine not only ensures that laws provide ‘fair warning’ of proscribed

conduct, but it also protects citizens against the impermissible delegation of basic policy matters

4
J. Holly McCall, Tennessee Republican Party Upholds Williamson County Primary Results,
Tennessee Outlook, Jun. 10, 2022, https://tennesseelookout.com/briefs/tennessee-republican-
party-upholds-williamson-county-primary-results/.
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‘for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and

discriminatory application.’” (citation omitted)); Belle Maer Harbor v. Charter Twp. of Harrison,

170 F.3d 553, 556 (6th Cir. 1999).

44. Vague statutes that chill the freedom to fully participate in the political process are

unconstitutional. See, e.g., Tenn. State Conf. of N.A.A.C.P. v. Hargett, 420 F. Supp. 3d 683, 698-

99 (M.D. Tenn. 2019) (finding First Amendment violated when the “threat of penalties [wa]s likely

to have a chilling effect on” voting-related activities).

45. The Supreme Court has emphasized that our Constitution demands a “more

stringent vagueness test” when a law “threatens to inhibit the exercise of constitutionally protected

rights.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982).

Thus, the standard of heighted scrutiny applies where, as here, statutes threaten criminal penalties

that result in the impingement of the fundamental right to vote. See League of Women Voters of

Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir. 2008) (“The right to vote is a fundamental right,

‘preservative of all rights.’” (internal citations omitted)); Memphis A. Phillip Randolph Inst. v.

Hargett, 482 F. Supp. 3d 673, 687 (M.D. Tenn.), aff’d on other grounds, 978 F.3d 378 (6th Cir.

2020) (“The Court well understands that the constitutional right to vote is ‘fundamental.’”).

46. Section 115(b) is void for vagueness because it imposes criminal punishment and

fails to provide fair notice to citizens of what conduct is prohibited and also because it is so

standardless it invites arbitrary enforcement. Johnson, 576 U.S. at 595.

47. Section 115(b) imposes a criminal penalty without providing fair or adequate notice

such that registered voters might understand if they are “a bona fide member of and affiliated with”

the political party in the primary in which voters seek to vote.

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 48. Section 115(b) also fails to provide fair or adequate notice to registered voters

regarding what it means to “declare allegiance” to the political party in the primary in which voters

seek to vote or what it means to “intend[] to affiliate with” that political party.

49. Tennessee law provides no definition of any of these terms to guide registered

voters and voter-informing groups like LWVTN seeking to comply with the law.

50. The absence of such definitions means that Section 115(b) fails to provide fair or

adequate notice to citizens of what conduct is prohibited.

51. Moreover, Section 115(b) not only fails to define what is prohibited, but also it

impermissibly delegates the definition of unlawful conduct to private entities, the political parties.

52. Even if such delegation were permissible, the political parties have no functional

definition, either. The Republican Party’s bylaws do not define a bona fide member for the purpose

of voting in a primary at all. The Democratic Party’s Bylaws at least offer a definition, but it, too,

is vague and entirely subjective.

53. Therefore, the terms fall below the constitutional threshold for specificity and

render the statute too vague to provide anything close to adequate notice to Plaintiffs Ashe and

Lawson, Plaintiff LWVTN and its members, and other similarly situated voters.

54. Section 115(b) is void for vagueness for an additional reason: it fails to provide

clear guidelines to govern enforcement, allowing for impermissibly broad discretion and

discrimination by the party, the prosecutor, or both.

55. Because neither voters nor poll workers have any way of confirming voters’ “bona

fides” when the voters walk into a polling place, enforcement of Section 115(b) would need to

happen after a voter casts a vote.

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 56. This post hoc nature of enforcement gives political parties, poll workers, or

theoretically any citizen the ability to swear out criminal complaints against voters after an

election, even though the voters had no chance to conform to the law before voting.

57. It also gives free license to district attorneys to prosecute their political opponents.

58. A standard that gives officials so much leeway is unconstitutional.

59. Such a standard is even more unconstitutional in the fact of Section 115(c) that uses

the same impossible vague terms to warn voters against exercising their right to vote.

60. Section 115(b) thus fails to meet the stringent vagueness test applicable when a law

threatens criminal sanctions, especially when the law also threatens to inhibit the exercise of

constitutionally protected rights such as the right to vote.

61. Section 115(b) and 115(c) violate the Fourteenth Amendment of the United States

Constitution and is unenforceable.

Section 115b and 115(c) Violate the First Amendment’s Overbreadth Doctrine

62. The First Amendment to the United States Constitution provides that “Congress

shall make no law abridging the freedom of speech, . . . ; or the right of the people peaceably to

assemble, and to petition the Government . . . .”

63. The speech and petition clauses of the First Amendment have long been held to

“safeguard[] an individual’s right to participate in the public debate through political expression

and political association.” McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 203 (2014).

64. The First Amendment’s “overbreadth doctrine” permits “an individual whose own

speech or conduct may be prohibited” to “challenge a statute on its face ‘because it threatens [the

free speech rights of] others.’” Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 574 (1987).

65. The doctrine is especially apt where a statute threatens criminal sanctions, because

“[m]any persons, rather than undertake the considerable burden (and sometimes risk) of
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vindicating their rights through case-by-case litigation, will choose simply to abstain from

protected speech, harming not only themselves but society as a whole, which is deprived of an

uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

66. Facial challenges to overly broad statutes are allowed for the benefit of society to

prevent the statute from chilling the First Amendment rights of parties not before the court. Sec’y

of State of Md. v. Munson Co., Inc., 467 U.S. 947, 958 (1984).

67. Sections 115(b) and 115(c) threaten voters with criminal sanctions.

68. Section 115(c) combines a prominently threatening sign with the impossibly vague

law in Section 115(b) to penalize or deter a wide range of constitutionally protected voting conduct.

69. The statute deters direct voting behavior of voters who have never voted before and

do not know if they have the required bona fides or allegiances to the political party for which they

wish to vote.

70. The statute deters direct voting behavior of voters who may wish to switch parties.

71. The statute also deters expressive conduct that accompanies voting.

72. The statute deters Plaintiff LWVTN from fulfilling its mission of communicating

election-related information to voters because it does not know how to inform its members and the

general public accurately and effectively on voting issues related to the upcoming primaries.

73. Tennessee does not have a sensible basis for distinguishing between conduct that

is prohibited under Section 115(b) from that which is permissible.

74. There is no conceivable government interest that justifies the criminalization of

voting conduct based on the unwritten whims of poll workers, state party leadership, or local

prosecutors.

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 75. Even if crossover voting were actually becoming problematic in a way that harmed

the State, the statutes’ vagueness makes it impossible for a court to competently apply and enforce

its prohibitions in a way that would address that problem.

COUNT ONE

Tennessee Code Annotated Sections 2-7-115(b) and 2-7-115(c) Violate the Fourteenth
Amendment Guarantee of the Right to Due Process of Law
42 U.S.C. § 1983

76. Plaintiffs repeat and reallege each and every allegation contained in the preceding

paragraphs as if fully set forth herein.

77. The Defendants are governmental actors or employees acting under the color of

State law for purposes of 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States

Constitution.

78. The Due Process of the Fourteenth Amendment, enforceable pursuant to 42 U.S.C.

§ 1983, provides no person shall be deprived of life, liberty or property without the due process of

law, nor shall any State deprive any person of life, liberty or property, without due process of law.

79. A statute is void under the Due Process Clause when it fails to give a person of

ordinary intelligence fair notice that his or her contemplated conduct is forbidden by the statute or

is so indefinite that it encourages arbitrary and erratic arrests and convictions.

80. The Due Process Clause provides even further protection when the uncertainty

induced by the statute threatens to inhibit the exercise of constitutionally protected rights. The Due

Process Clause also provides heightened protection when criminal penalties may be imposed based

upon the statute.

81. The statutes at issue here advise that an individual violates the law and is subject to

criminal prosecution if he or she votes in a primary without being a “bona fide member” of the

applicable party or without maintaining sufficient allegiance to the party. But Tennessee law
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provides no definitions for those operative terms and leaves Plaintiffs and Tennessee voters to

guess as to whether they maintain sufficient affiliation with either political party to vote without

risking prosecution.

82. Plaintiffs, including LWVTN’s members and those it advises, cannot merely

declare allegiance to either political party at the ballot box, as the statutes further criminally

proscribe declarations of allegiance unless the same are made with “intent to affiliate.” There is no

definition of what constitutes a sufficient “intent to affiliate” and the time frame in which such

intention is operable: today, tomorrow, next year, or indefinitely.

83. By leaving the operative terms undefined and fundamentally unclear, the statute

encourages arbitrary prosecution. Anyone who is deemed to be an undesirable voter in either

primary may be threatened, prosecuted, or arrested for attempting to vote without maintaining

sufficient allegiance to the party, as state officials may ascribe definitions to the terms “bona fide”

and “affiliated with” that vary from voter to voter.

84. As a result of the uncertainty induced by the statutes, Plaintiffs Ashe and Lawson

fear prosecution if they exercise their fundamental constitutional right to vote in either political

party primary. Plaintiff LWVTN likewise fears advising its members and those who seek its

guidance in a way that could lead them to face prosecution or which would otherwise involve

promulgating erroneous information in contravention of state law.

85. Because the free exercise of constitutional rights is threatened by the vagueness of

the statutes, and because criminal punishment is permitted under the statutory scheme, heightened

protection is afforded to Plaintiffs by the Due Process Clause.

86. The statutes fail to provide the specificity demanded by the Due Process Clause,

and they are unenforceable. Plaintiffs Ashe and Lawson, as persons of ordinary intelligence, are

17

Case 3:23-cv-01256 Document 1 Filed 11/29/23 Page 17 of 21 PageID #: 17

unable to determine whether their degree of affiliation with either political party makes it safe for

them to vote without risking criminal prosecution. Plaintiff LWVTN is unable to determine how

to advise voters and is thus limited in its ability to perform its mission.

87. Therefore, the Court should declare Tennessee Code Annotated Sections 2-7-

115(b) and 2-7-115(c) unconstitutional and enjoin the enforcement of the same.

COUNT TWO

Tennessee Code Annotated Sections 2-7-115(b) and (c) Violate the

First Amendment Right to Freedom of Speech
42 U.S.C. 1983

88. Plaintiffs repeat and reallege each and every allegation contained in the preceding

paragraphs as if fully set forth herein.

89. The Defendants are governmental actors or employees acting under the color of

State law for purposes of 42 U.S.C. § 1983 and the First and Fourteenth Amendments of the United

States Constitution.

90. The First Amendment of the United States Constitution, enforceable pursuant to 42

U.S.C. § 1983, protects the Plaintiffs’ fundamental right to participate in the political process,

including the fundamental right to vote.

91. The First Amendment, coupled with the Due Process Clause of the Fourteenth

Amendment, enforceable pursuant to 42 U.S.C. § 1983, protects the Plaintiffs’ fundamental right

to vote without a state law depriving them of life, liberty, or property without due process of law.

92. By combining a prominently threatening sign with an impossibly vague law,

Section 115 penalizes or deters an extraordinary range of protected voting conduct.

93. In addition to the direct voting behavior that Section 115 deters, it will also deter

or penalize a host of expressive conduct that accompanies voting.

18

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 94. Plaintiffs’ inability to determine whether or not they, their members, or those they

advise are legally qualified to vote in a Tennessee political party primary prevents Plaintiffs, and

similarly situated voters, from participating in the political process and chills their freedom of

political speech.

95. Tennessee Code Annotated Sections 2-7-115(b) and (c) violate Plaintiffs’

constitutional rights granted by the First and Fourteenth Amendments to engage in the political

process and to exercise their fundamental right to vote.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray that this Court:

(i) Declare that Tennessee Code Annotated Sections 2-7-115(b) and (c) are (1)

void for vagueness under the Fourteenth Amendment, and (2) overbroad

and in violation of the First Amendment’s free speech clause.

(ii) Preliminarily and permanently enjoin Defendants and their employees,

agents, and successors in office from enforcing Tennessee Code Annotated

Sections 2-7-115(b) and (c);

(iii) Award Plaintiffs their reasonable attorneys’ fees and costs, including

pursuant to 42 U.S.C. § 1988;

(iv) Grant such other relief as the Court deems just and proper.

19

Case 3:23-cv-01256 Document 1 Filed 11/29/23 Page 19 of 21 PageID #: 19

Dated: November 29, 2023.

Respectfully submitted,

/s/ R. Culver Schmid_______________________

R. Culver Schmid, BPR No. 011128
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
265 Brookview Centre Way, Suite 600
Knoxville, TN 37919
Tel.: (865) 971-5103
[email protected]

Gary Shockley, BPR No. 010104

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
1600 West End Avenue, Suite 2000
Nashville, TN 37203
Tel.: (615) 726-5600
[email protected]

Eric G. Osborne, BPR No. 029719

Christopher C. Sabis, BPR No. 030032
William L. Harbison, BPR No. 007012
Frances W. Perkins, BPR No. 040534
Sherrard Roe Voigt & Harbison, PLC
150 3rd Avenue South, Suite 1100
Nashville, TN 37201
Tel.: (615) 742-4200
[email protected]
[email protected]
[email protected]
[email protected]

Counsel for Plaintiffs Victor Ashe and Phil Lawson

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Case 3:23-cv-01256 Document 1 Filed 11/29/23 Page 20 of 21 PageID #: 20

John E. Haubenreich, BPR No. 029202
The Protect Democracy Project
2020 Pennsylvania Avenue NW, #163
Washington, DC 20006
Tel.: (202) 579-4582
[email protected]

Orion Danjuma (pro hac vice forthcoming)

The Protect Democracy Project
82 Nassau St. #601
New York, NY 10038
Tel.: (202) 579-4582
[email protected]

Collin P. Wedel (pro hac vice forthcoming)

Sidley Austin LLP
555 W. Fifth St., Suite 4000
Los Angeles, CA 90013
Tel.: (213) 896-6000
[email protected]

Jillian Sheridan Stonecipher (pro hac vice forthcoming)

Rebecca B. Shafer (pro hac vice forthcoming)
Sidley Austin LLP
One South Dearborn
Chicago, IL 60603
Tel.: (312) 853-7000
[email protected]
[email protected]

Counsel for Plaintiff League of Women Voters of

Tennessee

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Case 3:23-cv-01256 Document 1 Filed 11/29/23 Page 21 of 21 PageID #: 21

JS 44 (Rev. 04/21) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
Victor Ashe, Phil Lawson, and the League of Women Voters of Tennessee Tre Hargett, in his official capacity as Tennessee Secretary of State; Mark Goins,
in his official capacity as Tennessee Coordinator of Elections; and Jonathan
Skrmetti, in his official capacity as Tennessee Attorney General
(b) County of Residence of First Listed Plaintiff Knox County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

See attachment

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government X3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ INTELLECTUAL 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure X 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
X 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from
6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. § 1983
VI. CAUSE OF ACTION Brief description of cause:
Action challenging Tennessee Code Annotated Sections 2-7-115(b) and (c), portions of the Tennessee Election Code, as void for vagueness and overbroad under the First and Fourteenth Amendments to the U.S. Constitution.

VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
November 29, 2023 /s/ Eric G. Osborne
FOR OFFICE USE ONLY

RECEIPT #
CaseAMOUNT
3:23-cv-01256 APPLYING IFP
Document 1-1 JUDGE
Filed 11/29/23 MAG. JUDGE
Page 1 of 3 PageID #: 22
 Attachment to Civil Cover Sheet

Attorneys for Plaintiffs:

R. Culver Schmid
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
265 Brookview Centre Way, Suite 600
Knoxville, TN 37919
(865) 549-7000

Gary Shockley
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
1600 West End Avenue, Suite 2000
Nashville, TN 37203
(615) 726-5600

Eric G. Osborne
Christopher C. Sabis
William L. Harbison
Frances W. Perkins
Sherrard Roe Voigt & Harbison, PLC
150 3rd Avenue South, Suite 1100
Nashville, TN 37201
(615) 742-4200

Counsel for Victor Ashe and Phil Lawson

John E. Haubenreich
The Protect Democracy Project
2020 Pennsylvania Avenue NW, #163
Washington, DC 20006
(202) 579-4582

Orion Danjuma
The Protect Democracy Project
82 Nassau St. #601
New York, NY 10038
(202) 579-4582

Collin P. Wedel
Sidley Austin LLP
555 W. Fifth St., Suite 4000
Los Angeles, CA 90013
(213) 896-6000

Case 3:23-cv-01256 Document 1-1 Filed 11/29/23 Page 2 of 3 PageID #: 23

Jillian Sheridan Stonecipher
Rebecca B. Shafer
Sidley Austin LLP
One South Dearborn
Chicago, IL 60603
(312) 853-7000

Counsel for League of Women Voters

Case 3:23-cv-01256 Document 1-1 Filed 11/29/23 Page 3 of 3 PageID #: 24