UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JEFFREY LICHTENSTEIN; MEMPHIS AND WEST │ TENNESSEE AFL-CIO CENTRAL LABOR COUNCIL; │ TENNESSEE STATE CONFERENCE OF THE NAACP; │ MEMPHIS A. PHILIP RANDOLPH INSTITUTE; FREE │ HEARTS, > No. 22-5028 Plaintiffs-Appellants, │ v. │ │ │ TRE HARGETT, in his official capacity as Tennessee │ Secretary of State; MARK GOINS, in his official │ capacity as Coordinator of Elections for the State of │ Tennessee; STEVEN JOHN MULROY, in his official │ capacity as District Attorney General for Shelby │ County, Tennessee, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:20-cv-00736—Eli J. Richardson, District Judge.

Argued: October 27, 2022

Decided and Filed: October 5, 2023

Before: McKEAGUE, WHITE, and MURPHY, Circuit Judges. _________________

COUNSEL ARGUED: Danielle Lang, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellants. Clark Lassiter Hildabrand, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. ON BRIEF: Danielle Lang, Molly E. Danahy, Jonathan, Diaz, CAMPAIGN LEGAL CENTER, Washington, D.C., Jon M. Greenbaum, Ezra Rosenberg, Pooja Chaudhuri, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., William L. Harbison, Lisa Katherine Helton, Christopher C. Sabis, SHERRARD ROE VOIGT & HARBISON PLC, Nashville, Tennessee, for Appellants. Janet M. Kleinfelter, Alexander S. Rieger, Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. Kristin C. Cope, O’MELVENY No. 22-5028 Lichtenstein v. Hargett Page 2

& MYERS, LLP, Dallas, Texas, Charlotte Davis, PUBLIC INTEREST LEGAL FOUNDATION, Indianapolis, Indiana, for Amici Curiae.

MURPHY, J., delivered the opinion of the court in which McKEAGUE, J., joined. WHITE, J. (pp. 37–52), delivered a separate dissenting opinion.

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OPINION _________________

MURPHY, Circuit Judge. Since 1979, Tennessee has made it a crime for anyone other than election officials to distribute the State’s official form for applying to vote absentee. During much of this time, Tennessee kept close guard of this form to deter fraud. But election officials now make the form widely available online so that eligible voters may more easily apply. According to the Plaintiffs, this change has rendered the ban on distributing the application form “outdated.” The Plaintiffs want to hand out this form while they encourage absentee voting at their get-out-the-vote drives. They allege that the First Amendment gives them the right to do so. Because they seek to distribute the form while expressing a political message, they argue, we must subject the ban to strict scrutiny. At the least, they say, we