IN THE CHANCERY COURT OF DAVIDSON COUNTY, TENNESSEE
TWENTIETH JUDICIAL DISTRICT, NASHVILLE

HUNTER DEMSTER, EARLE J.
FISHER, JULIA HILTONSMITH,
GINGER BULLARD, JEFF BULLARD,
ALLISON DONALD, and
#UPTHEVOTE901,

)
)
)
)
EXPEDITED ACTION REQUESTED
)
)
Plaintiffs,
)
)
v.
)
Docket No. 20-0435-III
)
TRE HARGETT, MARK GOINS,
)
WILLIAM LEE, and HERBERT
)
SLATERY III, each in his official capacity
)
for the State of Tennessee
)
)
Defendants.
)
----------------------------------------------------------------------------

BENJAMIN WILLIAM LAY, CAROLE
JOY GREENWALT, and SOPHIA
LUANGRATH,
Plaintiffs,
v.
MARK GOINS, TRE HARGETT, and
WILLIAM LEE, each in his official
capacity for the State of Tennessee,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Docket No. 20-0453-III

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR
PERMISSION TO SEEK INTERLOCUTORY APPEAL AND IN SUPPORT OF
MOTION FOR STAY PENDING APPEAL.
______________________________________________________________________________
Defendants, Mark Goins, Tre Hargett, and William Lee, in their official capacities,
respectfully submit this memorandum of law in support of (1) their motion for permission to seek
1

 an interlocutory appeal under Tenn. R. App. P. 9 from this Court’s June 4, 2020 order granting
Plaintiffs a temporary injunction, and (2) their motion for a stay of that injunction pending appeal
under Tenn. R. Civ. P. 62.03 and 62.06. Defendants have requested expedited action on these
motions.
BACKGROUND
While Tennessee has a developed a plan to ensure that its upcoming August and November
2020 elections may proceed safely and securely in the midst of the COVID-19 pandemic, and
while that plan accounts for the logistical hurdles of rapidly implementing statewide absentee
voting, Plaintiffs in this case filed suit seeking the expansion of absentee voting to all voters who
wish to use a vote-by-mail system.
In its June 4, 2020 Memorandum and Order, this Court granted such relief, issuing a
temporary injunction requiring, inter alia, that the Defendants provide an absentee ballot to any
eligible Tennessee voter who applies to vote by mail in order to avoid transmission or contraction
of COVID-19.
ARGUMENT
Under Tenn. R. App. P. 9, a party may apply for an interlocutory appeal of a trial court’s
order. In reviewing such an application, a trial court will consider:
(1) The need to prevent irreparable injury, giving consideration to the severity
of the potential injury, the probability of its occurrence, and the probability that
review upon entry of final judgment will be ineffective; (2) the need to prevent
needless, expensive and protracted litigation, giving consideration to whether
the challenged order would be a basis for reversal upon entry of a final
judgment, the probability of reversal, and whether an interlocutory appeal will
result in a net reduction in the duration and expense of the litigation if the
challenged order is reversed, and (3) the need to develop a uniform body of law,
giving consideration to the existence of inconsistent orders of other courts and
whether the question presented by the challenged order will not otherwise be
reviewable upon entry of final judgment.

2

 Tenn. R. App. P. 9. Because each of these criteria is satisfied here, Defendants’ Rule 9
application to appeal the June 4, 2020 temporary injunction should be granted.
For the same reasons, the temporary injunction should be stayed pending appeal. Under
Tenn. R. Civ. P. 62.03 and 62.06, the Court has discretion to stay the relief it has ordered during
the pendency of any appeal. Because immediate review of the injunction is warranted, staying
that injunction pending appellate review is also warranted.
I.

THE INJUNCTION WILL CAUSE IRREPARABLE HARM, AND REVIEW
AFTER FINAL JUDGMENT WOULD BE INEFFECTIVE.
The preliminary injunction stands to cause irreparable harm. See Tenn. R. App. P. 9(a)(1).

It would require the State and its counties to expend millions of dollars, in a short timeframe, to
implement absentee voting that is not contemplated by the statute. Furthermore, given the close
proximity of the August and November elections, it is more than probable that “review upon entry
of final judgment will be ineffective.” See Tenn. R. App. P. 9(a)(1).
The temporary injunction compels the State to act immediately to “provide any eligible
Tennessee voter, who applies to vote by mail in order to avoid transmission or contraction of
COVID-19, an absentee ballot in upcoming elections” and to “prominently post on their websites
and disseminate to County Election Officials that voters who do not wish to vote in person due to
the COVID-19 virus situation are eligible to request an absentee ballot by mail.” (See Order, 6.)
And because the State must take this action immediately, the State and its counties will
immediately begin to suffer the harms associated with it. Tennessee’s counties, for example, must
now shoulder the immense costs of processing a dramatic influx of absentee-ballot requests, and
they must acquire the space and hire the personnel necessary to count the ballots during the
elections. (See Roberts Decl., ¶¶ 3, 9; Phillips Decl., ¶¶ 4, 9; Davis Decl., ¶¶ 4, 6–7, 9; Sweat
Decl., ¶¶ 4–6, 8; Pulley Decl., ¶¶ 4, 6–7, 9.) Worse, the State and its counties must implement
3

 these costly changes while simultaneously cutting budgets across the board. (See Ex. 1 to Apple
Jones Decl., 1.)
The costs to the State and its counties—monetary and otherwise—will continue to increase
with each passing day. The funds they spend to purchase and mail thousands, if not millions, of
absentee ballots cannot be recovered. Nor can they recover the costs of hiring the numerous
workers they must now hire to handle the expected increase in absentee voting. Given the real
financial crises caused by COVID-19, these costs constitute irreparable harm to the State and its
counties and their taxpayers, harm that warrants immediate appellate review of the temporary
injunction.
And the irreparable harm here is not only financial. The injunction also imperils the
integrity of Tennessee’s upcoming elections to the detriment of Tennessee voters. This potential
for irreparable harm is evident in the recent elections where other jurisdictions have expanded
absentee voting on a rapid timetable. For example, in Wisconsin approximately 10% of absentee
ballots (totaling nearly 121,000 votes) were either not returned to the clerk or were returned but
had to be rejected. See State’s Sur-Reply at 16. An additional 2,659 were returned too late to be
counted. Id. New Jersey suffered similar issues in its primary with one city receiving 16,747
absentee ballots, but only 13,557 being eligible to be counted, meaning nearly 20% of votes cast
were not counted. Id. About 800 of those uncounted ballots were set aside after some were found
improperly bundled in mailboxes and others were found in a different town. Id.
Primaries that have taken place in multiple States this past week (i.e., since the Defendants
filed their sur-reply to the Plaintiffs’ temporary-injunction motion) provide further evidence of the
irreparable harm that can result from the temporary injunction. Some of these jurisdictions decided
to expand vote-by-mail in response to the coronavirus and are now dealing with the consequences
of their choice. The rush to expand vote-by-mail in Maryland and the District of Columbia went
4

 so poorly that local leaders are now calling for the resignation of the respective heads of elections.
See The Washington Post, Voting Problems in D.C., Maryland Lead to Calls for Top Officials to
Resign,

https://www.washingtonpost.com/local/dc-politics/voting-problems-in-dc-maryland-

lead-to-calls-for-top-officials-to-resign/2020/06/03/24b47220-a5a8-11ea-b619f9133bbb482_story.html.
Over 1 million ballots sent by Maryland officials were delayed, 1 resulting in these voters
receiving ballots late or not at all. See id. Additionally, 75,000 ballots that were collected from
drop-off sites have disappeared. See The Baltimore Sun, Maryland Lt. Gov. Rutherford Calls on
State Board of Elections Administrator to Resign After Mail-in Primary Problems,
https://www.baltimoresun.com/politics/elections/bs-md-ci-rutherford-calls-on-lamone- to-resign20200603-4gxpb2jzuba6bnxxyuxexawd44-story.html.
An unknown number of Indiana voters also did not receive their ballots in their State’s
attempt to quickly convert to an expanded mail-in ballot system. See Indy Star, Residents Report
Issues

with

Absentee

Ballots

that

Could

Exclude

Votes

in

Upcoming

Primary,

https://www.indystar.com/story/news/local/marion-county/2020/05/29/marion-county-votersreport-issues-absentee-ballots/5278382002/. These problems occurred even though Indiana’s
governor moved the primary from May 5 to June 2 to give officials an additional month to prepare.
Id. As of Monday evening, 35,000 absentee ballots—due by noon Tuesday—that had been mailed
by Indiana officials were still outstanding. See WTHR, Absentee Ballot Problems Prevent Some

1

Officials say the delay was the fault of a third-party vendor. See The Washington Post, Mail-in
Ballot
Delays
In
Maryland
Threaten
Statewide
Primary,
Activists
Say,
https://www.washingtonpost.com/local/md-politics/mail-in-ballot-delays-in-maryland-threatenstatewide-primary-activists-say/2020/05/26/ee05134e-9c59-11ea-ad098da7ec214672_story.html
5

 Hoosiers from Voting, https://www.wthr.com/article/absentee-ballot-problems-prevent-somehoosiers-voting. Officials believe this is due to delays in postal delivery. See Id.
In the forced rush to send out ballots by mail, one Pennsylvania county inadvertently sent
incorrect ballot instructions to perhaps “tens of thousands of voters.” See The Philadelphia
Inquirer, Montgomery County Sent Out Thousands of Pennsylvania Absentee Ballots with Flawed
Instructions,

https://www.inquirer.com/politics/election/montgomery-county-pa-absentee-

ballots-instructions-20200518.html.
The experiences in these States demonstrate the likely consequences of choosing to rapidly
implement a system of absentee voting that has taken other States years to adopt. Before
Tennessee is subjected to the risk of a similar experience, appellate review of this Court’s
injunction should be permitted.
II.

INTERLOCUTORY REVIEW WILL PREVENT NEEDLESS LITIGATION.
Permitting an immediate appeal is warranted to “prevent needless, expensive, and

protracted litigation.” See Tenn. R. App. P. 9(a)(2). The June 4, 2020 Order compels the State to
fundamentally alter its longstanding approach to elections and absentee voting. It does so only
temporarily, though, so a full trial is still on the horizon. See Order, 10 n.4 (explaining that this
Court’s findings were “preliminary for purposes of issuance of the temporary injunction and are
not binding as ultimate findings of fact” which will be “determined in the trial of the case”).
Preparation for that trial is virtually certain to require extensive discovery, numerous depositions,
and countless hours of work on the part of this Court and the parties.
But if the injunction, together with its predicate legal determination—that the State’s
unwillingness to extend mail-in voting to circumstances not contemplated by the absentee-voting
statute unconstitutionally burdens the right to vote—are immediately reviewed, and were to be
reversed, that would effectively eliminate the need for further litigation in this case. As a result,
6

 an interlocutory appeal now would “result in a net reduction in the duration and expense of the
litigation if [this Court’s] order is reversed.” See Tenn. R. App. P. 9(a)(2); see also State v.
Williams, 193 S.W.3d 502, 506 (Tenn. 2006) (concluding, in the criminal context, that a grant of
an interlocutory appeal under Rule 9 was appropriate where “the trial court specifically found that
‘if the Court finds the defendant’s position is well-taken, it would avoid the time and expense of a
trial for the defendant and for the State of Tennessee”).
III.

INTERLOCUTORY REVIEW WILL HELP DEVELOP A UNIFORM BODY OF
LAW.
Since Plaintiffs’ lawsuit was precipitated by the recent and unprecedented COVID-19

pandemic, the legal question whether the Tennessee Constitution demands that voters be allowed
to apply to vote by mail “in order to avoid transmission or contraction of COVID-19” is also
without precedent; it is one of first impression in Tennessee. While this Court has answered that
question in the affirmative, immediate appellate review of that order is warranted in order to
develop a uniform body of law. See State v. Scarborough, 201 S.W.3d 607, 612 n.2 (Tenn. 2006)
(noting that where issue was one of first impression, an interlocutory appeal was appropriate “to
develop a uniform body of law” under Tenn. R. App. P. 9(a)(3)).
IV.

A STAY PENDING APPEAL IS NECESSARY AND APPROPRIATE.
This Court should also stay the preliminary injunction pending appeal in order to prevent

irreparable harm—both the harm discussed above and irreparable harm that results when state
officials are prevented from enforcing state statutes.
Indeed, the Fifth Circuit Court of Appeals just yesterday issued a stay pending appeal of a
similar district-court injunction requiring that all Texas voters be allowed to vote by absentee mailin ballot due to fear of COVID-19. See Texas Democratic Party v. Abbott, ___F.3d.___, No. 2050407, 2020 WL 2982937, at *1-3 (5th Cir., June 4, 2020).
7

As here, this requirement was in

 contradiction of the terms of the state’s absentee-voting statute, and the Fifth Circuit observed that
an injunction order preventing state officials from effectuating legislatively determined state
policies creates irreparable harm. Id. at 16. “When the State is seeking to stay a preliminary
injunction, it’s generally enough to say [that] any time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers a form of irreparable
injury.” Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020) (per curiam) (quotation marks and
brackets omitted).
A stay pending appeal will also serve to avoid voter confusion, by ensuring that consistent
information can be provided to Tennessee voters about the upcoming electoral process. Indeed,
in the immediate wake of the June 4 injunction, voters are already reaching out to county election
offices seeking guidance about absentee voting. But what happens if a voter applies for an
absentee ballot based upon fear of COVID-19 and the temporary injunction that permits such an
application is later reversed?
Under Tenn. R. Civ. P. 62.03, this Court has “discretion to suspend or grant whatever relief
it deemed appropriate during the pendency of an appeal.” See Young v. Young, 971 S.W.2d 386,
393 (Tenn. Ct. App. 1997). See also Tenn. R. Civ. P. 62.06 (“When an appeal is taken by the state,
. . . the judgment may be stayed in the court’s discretion.”). This Court should exercise its
discretion and stay its injunction pending appellate review.

8

 CONCLUSION
For the foregoing reasons, Defendant’s motion for permission to seek interlocutory review
under Rule 9 should be granted on whether the temporary injunction was properly issued.
Defendants’ motion for a stay pending appeal should also be granted. And for the reasons stated,
Defendants also request that their motions be considered on an expedited basis.

Respectfully submitted,
HERBERT H. SLATERY III
Attorney General and Reporter

/s/ Alexander S. Rieger
ALEXANDER S. RIEGER (BPR 029362)
Assistant Attorney General
JANET M. KLEINFELTER (BPR 013889)
Deputy Attorney General
STEVEN A. HART (BPR 007050)
Special Counsel
MATTHEW D. CLOUTIER (BPR 036710)
KELLEY L. GROOVER (BPR 034738)
Assistant Attorneys General
Office of the Attorney General
Public Interest Division
P.O. Box 20207
Nashville, TN 37202
(615) 741-7908

9

 CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing has been forwarded by email
transmission on this the 5th day of June 2020, to:
Jacob Webster Brown
Melody Dernocoeur
Bruce S. Kramer
6000 Poplar Avenue, Suite 150
Memphis, Tennessee 38119
1 North Front Street

Steven J. Mulroy
1 North Front Street
Memphis, TN 38103

Memphis, Tennessee 38103
Thomas H. Castelli
ACLU Foundation of Tennessee
P.O. Box 120160
Nashville, TN 37212
Neil A. Steiner
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036
Tharuni A. Jayaraman
Dechert LLP
1900 K Street NW
Washington, DC 20006
Dale E. Ho
Sophia Lin Lakin
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Angela M. Liu
Dechert LLP
35 West Wacker Drive
Suite 3400
Chicago, IL 60601

/s/ Janet M. Kleinfelter________
JANET M. KLEINFELTER
Deputy Attorney General
10