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Federal Panel Hears Case on Tennessee Felony Voter Restoration Rights

At the Hermitage Library large groups of people lined up to vote on the last day of early voting. So far over 21,000 voted in this area already Photographs by John Partipilo Photography ©2024

A federal appeals panel on Tuesday heard arguments in a case to determine the future of Tennessee voter registration policies that — by some estimates — have disenfranchised half a million state residents with past felony convictions.

A class action lawsuit, filed in 2020 by the Tennessee State Conference of the NAACP and five voters, accuses state officials of establishing byzantine, inequitable, and onerous procedures that effectively prevent qualified voters with past convictions from casting a ballot in violation of the National Voter Registration Act (NVRA).

A federal judge in Nashville temporarily blocked the state rules in April, but the state successfully appealed to keep them in place ahead of the November 2024 elections while litigation continued.

On Tuesday, an attorney representing the Tennessee attorney general defended state voting right restoration rules before a three-judge panel of the 6th U.S. Circuit Court of Appeals as a lawful exercise of state power and argued the NAACP lacked the legal right to challenge the rules on behalf of voters.

Restoring voting rights after a felony is rare in Tennessee. This year, the process got harder.

“The NVRA ensures eligible applicants can register to vote but it also exists to protect the integrity of the election process,” said Philip Hammersley, assistant solicitor general. “Tennessee’s [restoration] policy furthers both aims by providing election officials what they need to distinguish between felons who are eligible to vote and those who are not.”

Hammersley focused much of the state’s arguments in disputing the NAACP had legal standing to file suit at all.

The Tennessee civil rights organization, Hammersley argued, was too “attenuated” — or removed from direct harm by state rules that apply to individuals seeking to restore their voting rights — to have standing to sue.

“NAACP would have to show [state] policy coerced or forced individuals to go to the NAACP and enlist their help, and that is simply not what is happening here,” Hammersley said. “There are many different voluntary steps that those individuals take before the NAACP gets involved.”

Danielle Lang, representing the NAACP, disagreed.

U.S. Appeals Court stops felon voter restoration change from going through

“Tennessee NAACP is in the business of registering voters,” she said. “It has been in the business of registering voters for all of its storied history, and it will continue to be in the business of registering voters regardless of Tennessee’s actions.

“And when you make it harder to register voters, you make it harder for groups that are in the business of registering voters,” said Lang, senior director of voting rights for the Campaign Legal Center.

Under state law, individuals who have completed their sentences for felony convictions have pathways to regain their voting rights.

They can either obtain a pardon from the governor or petition a judge. The process also requires proof that all court fines and fees have been paid. Fewer than 1 percent of applicants succeed in obtaining court relief and fewer than 3 percent obtain clemency.

In addition, applicants have to legally regain their ability to carry a weapon.

Overall, nearly 10 percent of the Tennessee electorate — 470,000 people — have lost their right to vote due to past felony convictions, including one in five Black residents of voting age.

Tennessee Lookout is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com.

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Feds Pause Menthol Ban

reddit: Immo Wegman/Unsplash

The Biden adminstration paused a proposed ban on menthol cigarettes last week after it received an ”immense amount of feedback” on the move. 

The U.S. Food and Drug Administration (FDA) announced the long-awaited move toward a menthol ban in April 2022. The agency has worked on the issue since at least 2011. A 2009 law banned all flavors in cigarettes, except for tobacco and menthol. 

The FDA estimated in 2019 that more than 18.5 million people aged 12 and up smoked menthols in the U.S. It recorded high rates of use by youth, young adults, African-Americans, and other racial and ethnic groups.

The FDA said banning menthol cigarettes in the U.S. would lower smoking by 15 percent nationwide in the next 40 years, and over that time, an estimated 324,000 to 654,000 smoking deaths overall and 92,000 to 238,000 African-American deaths could be avoided.

The FDA opened the proposal up for public comment in April, a necessary step in federal rule-making. The comment period was expanded by 60 days in June at the urging of lobby groups advocating for convenience stores, truck stops, and marketers of gasoline and diesel. 

The ban was first delayed in December 2023, and plans to finalize the ban in March never materialized. However, administration officials said they were still committed to implementing a ban. White House officials said last week comments from the public led to the pause. 

“This rule has garnered historic attention and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement,” U.S. Health and Human Services Secretary Xavier Becerra said in a statement on Friday.  “It’s clear that there are still more conversations to have, and that will take significantly more time.”

Banning menthols would only push sales underground, said officials with NACS, the national lobby firm for convenience stores and gas stations. 

“Real-world data and results have shown that prohibition of menthol cigarettes does not reduce smoking or advance public health. Instead, like the experience with prohibition of other entrenched products, it simply leads to more illicit sales,” said Doug Kantor, general counsel at NACS. “We hope the weight of evidence showing the ineffectiveness of what was originally proposed leads the Department to change course entirely.”

The NAACP pushed for the national ban. That group is now calling on states to issue their own bans on menthols. Tobacco-related chronic illness is one of the lading causes of death for African Americans, it said.

”The targeted marketing of menthol cigarettes to Black individuals has contributed to about 77 percent of Black smokers using menthol cigarettes, compared to 23 percent of white smokers,” reads a statement from the NAACP. “This statistic is no accident; it is the result of decades of marketing strategies by tobacco companies. Menthol use has resulted in increased rates of lung cancer, heart disease, and stroke among Black Americans.”

Some said, though, that the ban would unfairly target African-American consumers. Writing in The Washington Post, columnist Eugene Robinson said he understood tobacco companies targeted Black consumers for years. 

“But I can’t rush to cheer a new policy that puts a terribly unhealthy — but perfectly legal — practice enjoyed so disproportionately by African Americans on the wrong side of the law,” Robinson wrote.

Enforcement of the new law would have only addressed manufacturers, distributors, wholesalers, importers and retailers that deal in cigarettes. The new rule would not have included a prohibition on individual consumer possession or use. 

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TN AG Moves to Close NAACP Suit On Voting Rights

Photo by Element5 Digital on Unsplash

A lingering legal battle that was poised to be settled this summer, leading to a clearer pathway for tens of thousands of Tennesseans to restore their voting rights, has instead reignited into a contentious court fight with no certain outcome ahead of the next presidential election.

One in five Black voting-age Tennesseans lacks the right to vote due to a past criminal conviction — likely the highest rate of African-American disenfranchisement in the nation, according to the Sentencing Project. Overall, nearly 10 percent of the Tennessee electorate — 470,000 people — have lost their right to vote due to convictions.

In a lawsuit filed in December 2020, the Tennessee Conference of the NAACP and five residents denied the right to vote alleged Tennessee officials failed to follow state laws that allow individuals to legally restore their voting rights after serving their sentences and completing parole. Instead, the state implemented inaccessible and opaque processes that impede legal pathways for restoring rights, the lawsuit claimed.

Close to settling key claims in the case over the summer — potentially ahead of high profile local elections in Nashville, Memphis, and for state office — attorneys for the state abruptly broke off talks in late July, catching lawyers for the NAACP by surprise, legal filings show. Then, on August 2nd, lawyers for the Tennessee Attorney General filed motions asking a judge to reject the claims entirely.

Tennessee Supreme Court rules in felony voting rights case

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“The Elections Division, TDOC, and Governor’s office had the opportunity this summer to create accessible, transparent, and uniform procedures to allow the over 470,000 disenfranchised Tennesseans a fair shot at getting their voting rights restored and rejoining their communities as full citizens,” Blair Bowie, an attorney representing the NAACP with the DC-based Campaign Legal Center, said Friday.

“Instead, they blew up the voting rights restoration system entirely and imposed effectively permanent disenfranchisement on July 21st,” she said. 

A spokesperson for the Tennessee Attorney General did not respond to emailed questions on Friday. 

The breakdown in the federal case came shortly after a June 29th ruling by the Tennessee Supreme Court against Ernest Falls, who was denied the right to vote in Tennessee in 2020 after receiving clemency in Virginia for a decades-old crime. 

The Supreme Court ruled that Falls, also represented by the Campaign Legal Center, was required to show he had paid all outstanding court costs, restitution and child support obligations in Virginia to establish his voting rights — in addition to proof of the Virginia clemency.

Secretary of State Mark Goins then issued a memo that incorporated expanded requirements for all state residents seeking to restore their voting rights — regardless of where their conviction took place. In addition to the process of demonstrating they, too, had paid court costs and other financial obligations related to their crime, in-state residents must now show they also “have been pardoned by a Governor, U.S. President, or other appropriate authority of a state or have had their full rights of citizenship restored as prescribed by law.”

The memo wasn’t shared with attorneys for the NAACP who had been involved with them in settlement negotiations for months, legal filings said.

“Plaintiffs learned from public reporting that Defendant Goins had that day issued guidance to county election officials changing his interpretation of the State’s requirements for individuals with felony convictions to restore their voting rights,” court records said.

In seeking a ruling dismissing major elements of the case, state lawyers have argued in motions for summary judgment that the five individuals names in the suit lack standing in court.

Tennessee does have a process in place for restoration of rights, one that provides a pathway to restoring rights while preserving election integrity, they argued.

“Tennessee does not reject all voter registration forms on which the applicant affirmed that they have a felony conviction,” the state’s filings said. “Moreover, Tennessee’s practice is rationally related to its legitimate interest in combatting voter fraud, safeguarding voter confidence, and ensuring accurate record keeping.”

The Sentencing Project’s national voting rights study found that that 3,415 Tennessee voting-age citizens have been granted Certificates of Restoration since 2016 — fewer than 1 percent of those with prior felony convictions estimated to be eligible to vote under Tennessee law.

The NAACP lawsuit argues that the current administration of voting rights restoration certificates violate the U.S. Constitution’s due process and the equal protection rights.

Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com. Follow Tennessee Lookout on Facebook and Twitter.