Tennessee Supreme Court Limits Who Can Vote Absentee

The Tennessee Supreme Court heard oral arguments on Thursday, July 30, 2020, over whether a trial judge properly issued an injunction allowing Tennesseans to vote by mail in light of the coronavirus crisis.

BY DANIEL JACKSON

(CN) — In a setback for voting rights activists who sought to open up absentee voting to anyone concerned with contracting Covid-19, the Tennessee Supreme Court limited who could vote by mail in the upcoming presidential election.

In a ruling issued Wednesday evening, the supreme court said a Davidson County Chancery Court judge who ordered the state to allow any voter concerned about Covid-19 during the pandemic to vote absentee went too far in her June order.

“We find that the State’s interests in the efficacy and integrity of the election process are sufficient to justify the moderate burden placed on the right to vote of those plaintiffs and persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19,” wrote Justice Cornelia Clark in her 30-page opinion.

Citizens who merely worried about contracting the virus did not face a severe burden to their right to vote, Clark wrote, given that the state planned to encourage mask-wearing, frequent sanitation and social distancing at the polls.

According to the ruling, the state had said voters with underlying health conditions that made them especially vulnerable to the coronavirus and voters who care for individuals with underlying health conditions could already cast a ballot by mail.

When the supreme court heard both sides argue the case on June 30, Steve Mulroy, a law professor representing voters seeking to vote absentee, said the state presented a new interpretation of the absentee voting rules to the supreme court than it had before.

The decision comes at a time when courts in states such as Alabama and Texas have also considered whether or not the states should loosen their rules around absentee voting during the pandemic.

In Tennessee, for instance, voters can only vote absentee if they have a reason to, such as if a voter is over 60, ill or in the military.

In May, two groups of voters filed lawsuits in state court alleging Tennessee’s absentee voting rules prevented them from voting by mail during the pandemic. For instance, Ben Lay, a cancer survivor with a compromised immune system, said he shouldn’t have to choose between voting and prioritizing his heath.

With the chancellor’s temporary injunction in place ahead of the Aug. 6 primary in Tennessee — which will help decide the candidates seeking an open senate seat — more than 578,000 Tennesseans cast absentee ballots or voted in the state’s early voting period, according to the secretary of state – a 105% increase from the 2016 election.

The state, Clark wrote, had argued it needed to restrict absentee voting in order to ensure against fraud.

But Clark found the argument lackluster: “The trial court did not find the State’s evidence regarding the risk of fraud which would result from an increase in absentee voting by mail persuasive. We tend to agree,” she wrote.

However, policy decisions were delegated to the coordinator of elections — even policy decisions made during a pandemic.

“These policy choices will be judged by history and by the citizens of Tennessee. We, however, properly may not and will not judge the relative merits of them, regardless of our own views,” Clark wrote.

Clark was joined by three other justices on the five-judge bench. Justice Sharon Lee issued a dissent.

Citing the rising number of Covid-19 cases — more than 114,000 as of Wednesday — Lee said Tennessee students will start going back to school and take up contact sports and residents meet in bars despite no statewide mask mandate.

“Tennessee is out of step with nearly every other state in the country in its response to absentee voting during this pandemic. Only three other states do not allow either voting by mail or no-excuse absentee-by-mail voting in the current pandemic,” Lee wrote.

Dale Ho, director of the American Civil Liberty Union’s Voting Rights Project, described the ruling as a victory, with the supreme court ruling medically vulnerable Tennesseans can vote absentee, away from the populated polls.

“The court should have gone further, however, and ruled that all eligible voters have a right to vote safely by mail,” Ho said.

Meanwhile, attorneys with the Campaign Legal Center and the Lawyers’ Committee for Civil Rights Under Law are also challenging some of Tennessee’s absentee voting rules in a pending lawsuit. This time in federal court.

In an email to Courthouse News, Kristen Clarke, president of Lawyers’ Committee for Civil Rights Under Law, said the attorneys are trying to prevent Tennessee from requiring first-time voters that registered by mail to show up to a polling location in person to vote, for instance.

“The battle against the state continues,” Clarke wrote.

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