Does the federal government or Tennessee decide how Tennessee elections are run, and how does ADA accommodation for disabled voters fit in?

Subject

Laws Governing Voting Procedures in Tennessee

Plain-English summary

Senator Joey Hensley asked two related questions. First, who actually controls how Tennessee runs elections, the State or the federal government? Second, in a county that uses paper hand-marked ballots, does the ADA require an electronic voting machine at every precinct, or can the county satisfy the ADA in less expensive ways?

On the first question, the AG describes a layered system. Tennessee is "primarily responsible" for regulating its own federal, state, and local elections, with that authority codified in title 2 of the Tennessee Code. But Congress holds the trump card on federal elections through the Elections Clause (U.S. Const. art. I, § 4, cl. 1), which lets it override state rules for federal contests, and the Supremacy Clause, which lets valid federal statutes preempt state law. Federal floor laws that bind Tennessee include 2 U.S.C. § 7 (the federal Election Day), the National Voter Registration Act (42 U.S.C. § 1973gg et seq.), and the Help America Vote Act (42 U.S.C. § 15301 et seq.). The Fourteenth and Fifteenth Amendments place additional constitutional limits on state voting laws.

On the second set of questions, about ADA accommodations, the AG declined to give categorical answers. Whether a county satisfies its ADA obligation by offering assistance with hand-marked ballots, by making one electronic machine portable and available on demand, or by stationing three electronic machines equidistant from any precinct, all turn on facts. ADA Title II requires public entities to provide auxiliary aids that are accessible, timely, and that protect privacy and independence. The case law treats this as a fact-specific inquiry, citing Hindel v. Husted, 875 F.3d 344 (6th Cir. 2017). The "fundamental alteration" defense in 28 C.F.R. § 35.164 (where an accommodation would impose undue burden) also depends on facts.

The bottom line: the State runs Tennessee elections within the room federal law leaves it, and the ADA question on disability accommodations is not one the AG could resolve in the abstract.

What this means for you

If you are a county election commissioner

The opinion describes a layered system: Tennessee is primarily responsible for its elections under title 2, but Congress can override state rules for federal elections under the Elections Clause (the federal Election Day in 2 U.S.C. § 7, the NVRA, and HAVA), and federal anti-discrimination law such as ADA Title II applies to all elections. On the disabled-voter questions, the opinion expressly declined to give a categorical answer, holding that whether any particular accommodation satisfies the ADA "would depend upon the particular facts and circumstances in any given situation." It cites Hindel v. Husted for the fact-specific nature of the inquiry.

If you are a Tennessee voter with a disability

The opinion holds that ADA Title II applies to Tennessee voting, and that the implementing regulation requires auxiliary aids that are accessible, timely, and that protect the voter's privacy and independence (28 C.F.R. § 35.160(b)). The opinion does not decide whether any particular county arrangement meets that standard; it treats the question as fact-specific.

If you are a state legislator considering elections legislation

Bills that change voting procedures need to pass three filters: the Tennessee Constitution, the federal Elections Clause and constitutional amendments, and federal statutes (NVRA, HAVA, ADA, Voting Rights Act). For federal elections, your statute must yield to congressional rules where they conflict. For accessibility, the ADA applies to state and local elections regardless of partisan or substantive content of the legislation.

If you are an attorney advising a county

The opinion gives no bright-line rules on ADA accommodations, holding the analysis is fact-specific and citing Hindel v. Husted. It notes that the fundamental-alteration defense in 28 C.F.R. § 35.164 (a service alteration or "undue financial and administrative burdens") is itself available only on a case-by-case basis.

Common questions

Q: Who decides Tennessee's voter registration deadline?
A: Both. Tennessee sets its own deadline in title 2, but the National Voter Registration Act sets a federal floor (mail-in registration must be available, with a postmark deadline no later than 30 days before a federal election, among other requirements). Tennessee's rule must satisfy the federal floor.

Q: Can a county avoid buying electronic voting machines for every precinct?
A: Possibly, but only if the alternative still satisfies the ADA's auxiliary-aid requirement that voting be accessible, timely, private, and allow the voter independence. Whether availability on demand or equidistant placement of three machines suffices depends on the layout and call volume of the polling places. The AG would not give a yes-or-no answer.

Q: Does the ADA require Tennessee to use specific voting equipment?
A: No, the ADA does not mandate a specific machine or system. It requires that the State provide effective auxiliary aids and services. The choice of how to deliver effective access is the State's, subject to the case-by-case ADA analysis.

Q: What is the "fundamental alteration" defense?
A: 28 C.F.R. § 35.164 lets a public entity decline an accommodation that would "result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." The opinion treats whether a proposed modification is a reasonable modification or a fundamental alteration as a case-by-case question requiring analysis of all the facts.

Q: When can Congress override Tennessee's election rules?
A: For federal elections, the Elections Clause lets Congress alter the "Times, Places and Manner" of holding the election. Examples include 2 U.S.C. § 7 (federal Election Day), the NVRA, and HAVA. For all elections, federal anti-discrimination laws (Voting Rights Act, ADA) preempt conflicting state rules. State and local elections are otherwise primarily Tennessee's domain.

Background and statutory framework

The Tennessee Constitution and title 2 of the Tennessee Code together set up the State's election machinery. Tenn. Code Ann. § 2-1-102 declares title 2's purpose: to regulate the conduct of all elections. The Tennessee Supreme Court has long held that the legislature has "manifest" authority to control elections within the State, subject to federal and state constitutional limits.

The federal Elections Clause, U.S. Const. art. I, § 4, cl. 1, gives Congress authority over federal elections that overrides state law. Foster v. Love, 522 U.S. 67, 69 (1997), held that the Clause "grants Congress the power to override state regulations by establishing uniform rules for federal elections, binding on the States." Congress has used this power to set Election Day (2 U.S.C. § 7), enact the National Voter Registration Act (42 U.S.C. § 1973gg et seq.), and the Help America Vote Act (42 U.S.C. § 15301 et seq.).

The Supremacy Clause, U.S. Const. art. VI, cl. 2, lets federal statutes preempt state laws when they conflict, including state elections laws. Oneok, Inc. v. Learjet, Inc., 573 U.S. 377 (2015), is cited for the general preemption principle.

The Fifteenth Amendment forbids race discrimination in voting; the Fourteenth Amendment, through Reynolds v. Sims, 377 U.S. 533, 565-66 (1964), imposes one-person-one-vote and other equal-protection constraints.

ADA Title II, 42 U.S.C. § 12132, provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of a public entity." Voting is a public-entity service. The Fourth Circuit in Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir. 2016) ("NFB I"), held that "voting is a quintessential public activity" within the ADA.

The ADA's implementing regulations require auxiliary aids and services that are (1) provided in accessible formats, (2) timely, and (3) protect the privacy and independence of the disabled individual. 28 C.F.R. § 35.160(b)(1)-(2). The fundamental-alteration defense, 28 C.F.R. § 35.164, is available where compliance would fundamentally change the program or impose undue financial and administrative burdens. Both the substantive analysis and the defense are fact-specific, see Hindel v. Husted, 875 F.3d 344, 347 (6th Cir. 2017).

Citations

Statutes and constitutional provisions:

• U.S. Const. art. I, § 4, cl. 1 (Elections Clause)
• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• U.S. Const. amend. XIV (equal protection / due process)
• U.S. Const. amend. XV (race-based voting prohibition)
• 2 U.S.C. § 7 (federal Election Day)
• 42 U.S.C. § 1973gg et seq. (NVRA)
• 42 U.S.C. § 15301 et seq. (HAVA)
• 42 U.S.C. § 12132 (ADA Title II)
• 28 C.F.R. § 35.160(b)(1)-(2) (auxiliary aids requirement)
• 28 C.F.R. § 35.164 (fundamental alteration defense)
• Tenn. Code Ann. § 2-1-102 (purpose of title 2)

Cases:

• Storer v. Brown, 415 U.S. 724, 730 (1974) (state election authority)
• Foster v. Love, 522 U.S. 67, 69 (1997) (federal override of state federal-election rules)
• Reynolds v. Sims, 377 U.S. 533, 565-66 (1964) (one-person, one-vote)
• Oneok, Inc. v. Learjet, Inc., 573 U.S. 377 (2015) (federal preemption)
• Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir. 2016) (voting is a public activity within ADA)
• Hindel v. Husted, 875 F.3d 344, 347 (6th Cir. 2017) (case-by-case ADA accommodation analysis)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-03.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 7, 2022
Opinion No. 22-03
Laws Governing Voting Procedures in Tennessee

Question 1
Are voting procedures in Tennessee governed by state or federal law?

Opinion 1
While the State is primarily responsible for regulating federal, state, and local elections,
Congress has the authority, pursuant to the Elections Clause of the federal Constitution, to override
state regulations with respect to federal elections. Additionally, pursuant to the Supremacy Clause
of the federal Constitution, Congress may enact federal legislation that pre-empts state laws,
including state laws governing voting procedures. States must also adhere to the federal
constitutional requirements of the Fourteenth and Fifteenth Amendments with respect to voting.

Question 2
If a county uses hand-marked ballots, may it meet its obligation to accommodate disabled
voters by offering assistance with the hand-marked ballots?

Question 3
If an electronic machine is required to accommodate disabled voters and assuming such
machines are portable, could the requirement be met by making the machine be available upon
demand or by having at least three machines equidistant to any precinct so that they would be
available if needed?

Question 4
Is a county permitted to ensure accommodation for disabled voters without purchasing for
every precinct an electronic machine that may not be needed?

Opinions 2-4
The answers to Questions 2-4 would depend upon the particular facts and circumstances in
any given situation.

ANALYSIS

1. Laws Governing Voting Procedures in Tennessee

The State has long been primarily responsible for regulating federal, state, and local
elections. See Storer v. Brown, 415 U.S. 724, 730 (1974) ("[T]he States have evolved
comprehensive, and in many respects, complex, election codes regulating in most substantial ways,
with respect to both federal and state elections, the time, place, and manner of holding primary and
general elections, the registration and qualification of voters, and the selection and qualification of
candidates."). Tennessee's Election Code is set forth in title 2, and Tenn. Code Ann. § 2-1-102
states that the purpose of title 2 is to regulate the conduct of all elections.

The authority of the State to regulate elections, however, is not without limit. "It is well
settled that the Elections Clause [of the federal Constitution] grants Congress the power to
override state regulations by establishing uniform rules for federal elections, binding on the
States." Foster v. Love, 522 U.S. 67, 69 (1997) (emphasis added). Thus, while the state legislatures
may prescribe the time, place, and manner of holding federal elections, the United States Congress
is authorized to alter those state laws through federal legislation.

Pursuant to this constitutional authority, Congress has enacted 2 U.S.C. § 7 which requires
that federal congressional elections occur on the "Tuesday next after the 1st Monday in November,
in every even numbered year . . .." Congress has also enacted the National Voter Registration Act,
42 U.S.C. § 1973gg et seq. ("NVRA") and the Help America Vote Act, Pub. L. 107-252. Title III,
§ 302, 116 Stat. 1706 (codified at 42 U.S.C. § 15301 et seq.) ("HAVA"), both of which impose
upon the States certain statutory requirements for the administration of federal elections.

States must also adhere to certain other federal constitutional and statutory requirements.
States may not in any election, state or federal, deny or abridge the right to vote on the basis of
race. See U.S. Const. amend. XV, § 1. States also must adhere to the principle of one person, one
vote. See Reynolds v. Sims, 377 U.S. 533, 565-66 (1964). Furthermore, the federal Constitution's
Supremacy Clause establishes that valid federal legislation can pre-empt state laws. Oneok, Inc.
v. Learjet, Inc., 573 U.S. 377 (2015) (citing U.S. Const. Art. VI, cl. 2). For example, Title II of the
Americans with Disabilities Act ("ADA"), provides that "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, program, or activities of a public entity." 42 U.S.C. § 12132 (2018). And that
provision of the ADA applies to state voting procedures as "[v]oting is a quintessential public
activity." Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir. 2016) ("NFB I").

2.-4. Accommodations for Disabled Voters

Whether a county could satisfy its ADA obligation to accommodate disabled voters by the
means or in the ways proposed in Questions 2-4 would depend upon the particular facts and
circumstances in any given situation.

The regulations implementing the ADA require public entities to "furnish appropriate
auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal
opportunity to participate in, and enjoy the benefits of, a service, program, or activity" it offers. 28
C.F.R. § 35.160(b)(1). For such auxiliary aids to be effective, they must be (1) "provided in
accessible formats," (2) "in a timely manner," and (3) "in such a way as to protect the privacy and
independence of the individual with a disability." Id. § 35.160(b)(2). Determining whether
"appropriate auxiliary aids and services" would be necessary, and if so, whether any particular aid
or services would be effective for purposes of the ADA are highly fact-specific inquiries, as is the
availability to a county of the "fundamental alteration" affirmative defense to a claim of violation
of the ADA. The "fundamental alteration" defense rests on the premise that governmental entities
need not accommodate disabled individuals if doing so "would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial and administrative burdens."
28 C.F.R. § 35.164. Determining whether a proposed modification is a "reasonable modification"
which should be implemented under the ADA, or a "fundamental alteration," which need not be
implemented under the ADA, can only be done on a case-by-case basis and requires an analysis
of all the particular facts and circumstances in any given situation. See Hindel v. Husted, 875 F.3d
344, 347 (6th Cir. 2017) (citations omitted).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Joey Hensley
State Senator District 28
425 Rep. John Lewis Way N.
Suite 742 Cordell Hull Bldg.
Nashville, TN 37243