Thomas Burrell v. Tipton Cnty. Election Comm'n

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 18, 2022
• Docket: 22-5867
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0415n.06

Case No. 22-5867

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED THOMAS BURRELL, ) Oct 18, 2022 ) DEBORAH S. HUNT, Clerk Plaintiff - Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT TIPTON COUNTY ELECTION COMMISSION; JIMMY VANDERGRIFT; ) COURT FOR THE WESTERN LETITIA WILSON; CHRIS BRENT; KAY ) DISTRICT OF TENNESSEE BERGEN; THETA RONE; CINDY PINNER; ) MARK GOINS, ) OPINION ) Defendants - Appellees. )

Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Thomas Burrell appeals the district court’s

denial of a temporary restraining order (“TRO”) he sought against the Tipton County Election

Commission (“the Commission”) to secure a place on the November 8, 2022, ballot.1 Before us

at the present time is his emergency motion to stay the district court’s order.

Burrell wishes to be a candidate for mayor of Mason, Tennessee, but was barred from

candidacy because the Commission determined that he did not meet the residency requirement.

Burrell sought a TRO on his 42 U.S.C. § 1983 claims that the residency requirement violates his

Fourteenth Amendment right to travel and that the Commission’s decision to deny his candidacy

violates his First and Fourteenth Amendment right to vote. He additionally argued that the

1 The defendants are the Commission, the Commission’s individual members, the County Administrator of Elections, and the State Coordinator of Elections. No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n

Commission’s administrative procedures related to his residency determination violate provisions

of the Tennessee Open Meetings Act. The district court denied the TRO and Burrell appeals, also

filing the instant emergency motion. Because Burrell fails to make a persuasive showing of his

likelihood of success on the merits, lacks irreparable injury, and the public interest weighs against

granting a TRO, we deny Burrell’s emergency motion to stay and affirm the district court’s denial

of the TRO.

I.

Thomas Burrell was born and raised in Tipton County, Tennessee. He has family members

who are long-time residents of Mason, Tennessee, located in Tipton County. Burrell left Tipton

County at various points throughout his life, including to attend college and serve in the Vietnam

War. In 1989, he established a farming operation in Mason; however, Burrell was absent from

Tipton County from 1997 to 2015 for employment reasons. In 2015, Burrell returned to Atoka,

Tennessee, also in Tipton County. Burrell claims that he relocated from Akota to Mason and

reestablished residence in Mason in May 2022. On June 20, 2022, he registered to vote and filed

a timely petition for candidacy as mayor of Mason for the upcoming election on November 8,

2022.

Mason’s town charter provides: “No person shall be eligible for the office of Mayor or

Alderman unless they are a qualified voter and have been a bona fide resident of the Town for six

(6) months preceding the election.” DE 2-1, Charter of Mason, PageID 49. On August 22, 2022,

the Administrator of Elections for the Tipton County Election Commission sent Burrell a letter

stating that the Commission would be holding a meeting on August 31, 2022, to “review [his]

residency qualifications for office.” DE 2-2, Aug. 22 Letter, PageID 62. The letter reiterated the

six-month residency requirement and noted that “there is a question of whether [Burrell] reside[s]

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at the address that [he] provided to [the Commission].” Id. In the letter, Burrell was informed that

he was permitted to attend the meeting, address the Commission, and present information and

evidence related to his residency. Burrell attended the August 31 meeting with counsel. He was

given until September 9, 2022, to provide any additional evidence supporting his residency in

Mason.

It is unclear when exactly Burrell reestablished residency in Mason. Because the election

is set for November 8, 2022, Burrell must have established residency by May 8, 2022, to meet the

six-month requirement. At the Commission’s August 31 hearing, evidence was presented that

Burrell signed a residential lease in Mason on May 4, 2022, but did not begin living on the leased

property until sometime in June 2022. Burrell connected utilities to the property on May 6, 2022.

On September 9, the Commission met again and determined that Burrell had not met the

residency requirements in the charter. The Administrator of Elections sent a letter to Burrell on

September 9, 2022, confirming these findings and noting that the decision had been “made in

[Burrell’s] presence.” DE 2-3, Sept. 9 Letter, PageID 63. Burrell claims that he then sent a letter

to the Commission requesting that they not print any ballots because he had substantive concerns

about how the residency decision was made and procedural concerns about public notice for the

Commission meetings.2

Burrell filed the present case on September 20, 2022. That same day, he filed a motion for

a temporary restraining order (“TRO”). In his various filings, Burrell argued: (1) the six-month

residency requirement violated his Fourteenth Amendment right to travel; (2) the Commission’s

decision violated his First and Fourteenth Amendment right to vote; and (3) the Commission

2 Burrell claims that he attached this letter as Exhibit A to his Emergency Motion before this court, however the referenced exhibit is a different document. -3- No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n

violated provisions of the Tennessee Open Meetings Act in its conduct surrounding the residency

determination. For relief, Burrell sought an immediate order that the defendants place his name

on the November ballot, invalidation of the six-month residency requirement as unconstitutional,

and declaration of the Commission’s proceedings in the August 31 and September 9 meetings as

void for violation of the Tennessee Open Meetings Act. While the district court considered all of

these arguments, the motion for TRO focused on the § 1983 claim concerning the right to vote.

On September 26, 2022, the district court held a hearing which included “limited testimony

on the issue of Burrell’s residency as well as legal argument regarding the court’s jurisdiction.”

DE 24, Order, PageID 218. At the hearing, the Commission explained that Burrell was never

placed on the mayoral ballot due to the residency determination. The defendants also explained

relevant Tennessee State Election Commission procedures, which demand that sample ballots be

reviewed by the State Commission, approved, and then sent back to the county before printing can

begin. Additionally, ballots must be printed and mailed for military and overseas voters at least

forty-five days before an election. This means that the latest timely date for mailing of overseas

and military ballots was September 24, 2022. Review and approval of the final ballots by the State

Commission is required before that date.

On September 27, the district court denied injunctive relief. First, the district court

determined that Burrell had not demonstrated a likelihood of success on the merits of either of his

federal claims. The court held that the six-month residency requirement was likely constitutional

under Supreme Court and Sixth Circuit precedent and would survive application of the relevant

standard of review. Further, the court determined that there is no cognizable version of the right

to vote that applies to running for office or the right to vote for a specific candidate. Finding no

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legitimate federal claims, the district court declined to exercise supplemental jurisdiction over

Burrell’s state-law claims.

Next, the district court determined that the extremely low likelihood of success on the

merits of the constitutional claims allowed it to find that there was no risk of irreparable injury.

Finally, the district court found that the government and the public would suffer irreparable

harm if the TRO were issued. Ballots for the November 8, 2022, election have already been printed

and sent for overseas and military voters. The court reasoned that issuance of a TRO would require

reprinting the entire ballot and re-sending the new ballots, which could cause confusion and

potential disenfranchisement of eligible voters. Weighing all the factors, the district court found

that Burrell had not met his burden to receive a TRO and denied his motion.

Burrell timely appealed. On September 30, Burrell filed an emergency motion seeking a

stay of the district court’s order. Because early voting is set to begin on October 19, 2022,3 Burrell

seeks expedited consideration of his appeal.

On appeal, Burrell asserts that the district court applied the wrong standard to his

constitutional claims when assessing their likelihood of success on the merits. He claims that the

district court professed to apply intermediate scrutiny to his constitutional claim concerning the

right to travel, but in practice applied only rational basis review. He claims that this is reversible

error and that the district court order should be stayed because Burrell is likely to prevail on the

merits if his claims are actually reviewed under intermediate scrutiny. Burrell asks us to enjoin

the Commission “from removing Mr. Burrell as a candidate pending appeal or he will be

3 Burrell is inconsistent in his claims about which day early voting begins—sometimes writing October 18, other times October 19. A review of the Tipton County website shows that early voting is set to begin on October 19. https://www.tiptonco.com/news_detail_T34_R974.php. -5- No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n

irreparably harmed due to the inability to campaign” in the days until early voting begins. CA6

R. 8, Emergency Mot., at 8.

II.

We review a district court’s decision regarding a preliminary injunction for abuse of

discretion. Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). Under

this standard, we review the district court’s legal conclusions de novo and its factual findings for

clear error. Id. Determination of whether the movant is likely to succeed on the merits is a question

of law and is reviewed de novo. Id. “However, the district court’s ultimate determination as to

whether the four preliminary injunction factors weigh in favor of granting or denying preliminary

injunctive relief is reviewed for abuse of discretion.” Certified Restoration Dry Cleaning Network,

L.L.C. v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007).

To determine whether a TRO should be stayed, the court considers the same factors

considered in determining whether to issue a TRO or preliminary injunction. NE Ohio Coal. for

Homeless & Serv. Emps. Int’l Union, Loc. 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).

These factors are: (1) whether the movant has a strong likelihood of success on the merits, (2)

whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay

would cause substantial harm to others, and (4) whether the public interest would be served by

granting the stay. Id. When the government is the defendant, the final two factors merge. Nken

v. Holder, 556 U.S. 418, 435 (2009). Importantly, the factors for a TRO are not a checklist, they

are “interrelated considerations that must be balanced together.” Mich. Coal. of Radioactive

Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

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III.

We begin by reviewing de novo whether Burrell is likely to succeed on his constitutional

claims. Burrell argues that he is likely to succeed on his § 1983 claim that Mason’s six-month

residency requirement violates his Fourteenth Amendment right to travel. He states that the proper

standard for review is intermediate scrutiny. Burrell further claims that the district court purported

to apply intermediate scrutiny but in reality applied rational basis review when it determined that

the durational residency requirement was “reasonably necessary” to “accomplish legitimate state

objectives.” DE 24, Order, PageID 220-221.

Burrell confuses the proper standard of review and its application in his case. While he

seeks application of “intermediate scrutiny,” that is not the standard applied to durational residency

requirements.4 When the Supreme Court reviews barriers to candidacy for public office, it requires

such laws to be “‘closely scrutinized’ and found reasonably necessary to the accomplishment of

legitimate state objectives in order to pass constitutional muster.” Bullock v. Carter, 405 U.S. 134,

144 (1972). While Bullock focused on a Texas filing-fee requirement for candidates, this court

has applied Bullock’s standard to durational residency requirements for state or municipal office.

Beil v. City of Akron, 660 F.2d 166 (6th Cir. 1981). Beil upheld the City of Akron’s requirement

that candidates for the position of ward councilman have resided for at least one year in the ward

they seek to represent. Id. at 167, 169. Beil adopted and applied the same standard of scrutiny

from Bullock, determining that “the one year durational residency requirement of the City of Akron

is reasonably necessary to effectuate an important municipal interest.” Id. at 169. In no case has

4 We can see where the confusion arose. The district court referred to the standard it was applying as “a type of intermediate review between ‘rational basis’ and ‘strict scrutiny.’” DE 24, Order, PageID 220. The district court appeared to be using the term “intermediate” as a descriptive term, not a reference to “intermediate scrutiny,” a term of art for constitutional review as used in cases like Craig v. Boren, 429 U.S. 190 (1976). -7- No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n

this court or the Supreme Court demanded that municipalities must affirmatively show that

durational residency requirements are “substantially related to an important government interest,”

as Burrell suggests. CA6 R. 8, Emergency Mot., at 7. Rather, the correct standard is whether the

requirement is reasonably necessary to effectuate an important government interest.

The district court correctly concluded that Mason’s six-month durational residency

requirement is reasonably necessary to effectuate an important municipal interest. Municipal

interests for durational residency requirements include exposing candidates to the scrutiny of the

electorate, protecting the community from outsiders not seriously committed to the community,

and having officeholders who are familiar with the problems of the community. Joseph v. City of

Birmingham, 510 F. Supp. 1319, 1336 (E.D. Mich. 1981). In both Joseph and Beil, one-year

durational residency requirements were upheld as serving these legitimate interests. The Supreme

Court has upheld even longer residency requirements for state office. Sununu v. Stark, 420 U.S.

958 (1975) (affirming a seven-year residency requirement for state senators); Chimento v. Stark,

414 U.S. 802 (1973) (affirming a seven-year residency requirement for governor). While these

offices may be more powerful than the position of town mayor, “[t]he smaller governmental unit

is equally entitled to protect its smaller self.” Beil, 660 F.2d at 168. Because the length of the

residency requirement for the mayor of Mason is proportional to the power of the position, it

satisfies the standard of being reasonably necessary to effectuate the town’s interests.5 Burrell has

not established any likelihood of success on the merits of his freedom-to-travel claim.

5 As noted by the district court, the municipality’s important interests do not have to be affirmatively displayed in a town or city charter alongside the durational residency requirements. In both Beil and Joseph, these municipal interests were not explicitly advanced in the charter and in both the one-year durational residency requirements were upheld. See Beil, 660 F.2d at 167-68; Joseph, 510 F. Supp. at 1337-38. -8- No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n

Next, we review the district court’s determination that Burrell did not show a likelihood of

success on the merits of his claim that the Commission violated his right to vote by not allowing

him on ballot. At the district court, Burrell argued that he would “suffer irreparable injury to [the]

fundamental right to vote absent an injunction.” DE 2, Mot. for TRO, PageID 42. Burrell does

not specify whether he is referring to his right to run for office, his right to vote for himself, or the

rights of others to vote for him.

Burrell presents no cognizable constitutional violation of his right to vote. There is no

fundamental right to run for office, but “the rights of voters and the rights of candidates do not

lend themselves to neat separation; laws that affect candidates always have at least some

theoretical, correlative effect on voters.” Bullock, 405 U.S. at 143. Although laws creating

qualifications for candidates will always create some distant impact on available voting choices,

would-be candidates cannot reframe every ballot limitation as a voting rights infringement. The

types of candidacy laws that trigger Equal Protection include property ownership requirements,

Quinn v. Millsap, 491 U.S. 95 (1989), and excessive filing-fee requirements, Bullock, 405 U.S. at

144, because these laws threaten to discourage less wealthy candidates and give less wealthy

citizens fewer opportunities to elect candidates who represent them. However, we have held that

requirements that candidates be current on their property taxes are not cognizable violations of the

right to vote. Corrigan v. City of Newaygo, 55 F.3d 1211 (6th Cir. 1995). There is no bright line

distinction, but the relationship between the candidacy restriction and the threat to voters must be

close. Candidacy qualifications like reasonable term limits, age requirements, or durational

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residency requirements generally do not rise to the level of a constitutional claim. Burrell has

shown no likelihood of success on his right-to-vote claim.6

IV.

We turn to the second preliminary injunction factor, where we agree with the district court

that Burrell has not shown irreparable injury. Burrell asserts that he will be irreparably injured if

he is denied the opportunity to campaign. However, Burrell’s injuries all stem from his claimed

constitutional violations. Denial of an injunction can be the basis for irreparable harm if

constitutional rights are at stake, but when the plaintiff has not presented a cognizable

constitutional claim, the plaintiff is not entitled to a presumption of irreparable harm. Overstreet

v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). Beyond the alleged

constitutional violations, Burrell has presented no independent physical, financial, reputational, or

other injuries that would result from the denial of his candidacy.

V.

Finally, the public interest and the interests of the defendants would be harmed by a stay

of the district court’s order. In his emergency motion, Burrell mentions public interest only in

passing, and his arguments before the district court were a continuation of his claims concerning

irreparable injury to his right to vote. However, the Commission has explained the logistical

hurdles that an injunction for Burrell would present. We must respect the vital role that state and

6 Burrell raises several state-law claims under the Tennessee Open Meetings Act in his complaint and emergency motion. However, it would be inappropriate for us to review these claims. First, the district court properly declined to exercise supplemental jurisdiction over Burrell’s state-law claims in light of his failed federal claims. Second, although Burrell’s emergency motion dedicates much argument to the Commission’s alleged violations of the Tennessee Open Meetings Act, there is no indication that the proper recourse for lack of public notice would be an injunction ordering the Commission to change the contents of their already-printed ballots. This is an issue that has not been fully briefed or even raised. We therefore decline to review Burrell’s state-law claims. - 10 - No. 22-5867, Burrell v. Tipton Cnty. Elections Comm’n

local governments play in administering elections and developing their own laws to make that

possible. “A State indisputably has a compelling interest in preserving the integrity of its election

process.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Ballots for the forthcoming election, which

includes the Mason mayoral race, have already been printed and shipped overseas. Issuing new

ballots could disrupt the integrity of the voting process and potentially lead to confusion and

disenfranchisement of these overseas and military voters who might be confused by receiving a

second ballot, might have already submitted the first ballot before receiving the second, and likely

would not receive their new ballots in time to cast a timely vote. Additionally, as the district court

notes, there could be threats to the integrity of the election process if Burrell were to be placed on

the ballot and then later determined to be ineligible. The public interest weighs heavily against

injunctive relief for Burrell.

VI.

As Burrell satisfies none of the factors we consider when issuing temporary injunctive

relief, we decline to stay the district court’s order and affirm.

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