Fear of COVID-19 will not be reason to vote absentee in November, Tennessee Supreme Court rules

Fear of COVID-19 will not be a reason to vote by mail in the November general election, the Tennessee Supreme Court ruled Wednesday. 

Absentee ballots filed for Thursday's primary will remain valid, according to the court.

The high court's decision reverses a Nashville judge's injunction that allowed any voter concerned about COVID-19 to vote by mail. But the full lawsuit remains unresolved.  

Concerned voters filed lawsuits in Davidson County Chancery Court earlier this year asking for an expansion of the existing policy as cases of the novel coronavirus began to sweep through Tennessee. 

Chancellor Ellen Hobbs Lyle ruled on June 4 that the state must add a COVID-19 exemption to the list of possible excuses. The state appealed, and the Supreme Court agreed to take the case directly. 

In the 4-1 decision, the high court found that Lyle's injunction was an error and vacated it.

"With respect to those plaintiffs and persons who do not have special vulnerability to COVID-19 or who are not caretakers for persons with special vulnerability to COVID-19, we hold that the trial court erred in issuing the temporary injunction," the Supreme Court ruling stated. 

The decision by the high court merely removes the order requiring the state to allow COVID-19 concern for anyone to be a valid reason to vote absentee. While the case continues through the courts, what reigns is the state's interpretation of the requirements — which recently expanded to include those who feel they are medically vulnerable to COVID-19, and those who live with or care for them. 

Primary ballots still valid as November deadline looms

The ruling came just one day before the primary election —  the same day voters could first request absentee ballots for the November presidential election.  

A question does remain over what happens to ballot applications submitted on the first day.

State officials told counties to "sit tight" and get through the primary before creating a game plan for the November election, Davidson County Administrator of Elections Jeff Roberts confirmed. Election commission staff across the state regularly communicate with applicants about their forms if information is missing or unclear, and may be able to modify the applications with voters in this context. 

"I appreciate the Tennessee Supreme Court agreeing with our analysis of Tennessee election law. I am also grateful for the excellent representation provided by the Office of the Attorney General," Tennessee Secretary of State Tre Hargett said on Twitter.

No other state has so far decided the question of absentee balloting in the courts, as opposed to at the executive or legislative level, Chief Justice Jeff Bivins said during oral arguments.

Tennessee requires voters to provide an excuse for why they don't wish to vote in person — if they'll be out of state during all of early voting and on Election Day; if they're over 60; or if they are hospitalized, for example. In the past, 14 possible excuses have been available to a voter who chooses not to cast a ballot in person. 

But the coronavirus pandemic was not explicitly one of those excuses, and as cases surged in Tennessee and across the country, some wondered if worries over catching the deadly virus counted as an excuse. 

The Tennessee Attorney General released an opinion in May stating that fear of the virus was not a valid interpretation of the law, which allows voters with an illness to vote by mail. The state has also argued that it was unfeasible financially and practically to drastically ramp up production of absentee ballots before the Aug. 6 primary. Doing so, they said, would place an unnecessary burden on local election commissions, as the process of handling the ballots is largely decentralized to counties. 

Shift in position on underlying conditions

In arguments before the high court last week, attorney for the state Janet Kleinfelter's comments seemed to contradict previous interpretations by the state, marking a shift in its position. 

"This is a partial victory. When we first started, the state's position was that no one could vote absentee if they didn't fit into one of the preexisting conditions or test positive for COVID-19 or were in quarantine," attorney for the Memphis plaintiffs Steve Mulroy said Wednesday.

"At oral arguments, they were forced to concede that those with any one of those underlying conditions or who live with somebody who has such a condition, or takes care of such a person, has the freedom to vote absentee."

The new interpretation of the illness excuse would allow for people who have tested positive for COVID-19, or who believe they have been exposed to the virus. Also, the newer definition of illness allowed those with underlying medical conditions and their caretakers to apply for an absentee ballot. 

The court affirmed this interpretation in their ruling Wednesday. 

“The Tennessee Supreme Court recognized that the state must not force medically vulnerable Tennesseans to vote in person during the highly contagious and deadly COVID-19 pandemic. This ruling means they can safely cast their ballots by mail. The court should have gone further, however, and ruled that all eligible voters have a right to vote safely by mail,” said Dale Ho, director of the ACLU’s Voting Rights Project, in an emailed release.

Tennessee does not regularly require documentation of a specific illness to confirm eligibility for an absentee application, but does require a statement of truth from the voter. 

The state also does not keep a strict list of what those conditions may entail. Voters with hypertension, diabetes, obesity and smokers are likely to be eligible for this exemption option, Mulroy said. 

Justice Sharon Lee dissented from the majority opinion on the grounds that even without a specific illness, pandemic precautions guide against large gatherings. 

"In the midst of this pandemic and while Tennessee remains under a state of emergency, qualified Tennessee voters with no underlying medical or health conditions should not be left with the impossible choice of voting in person and risking getting COVID-19 or forfeiting their constitutionally protected right to vote. Tennessee voters deserve better," she said. 

Record numbers of absentee ballots

Through the lead-up to the primary, elections officials have urged local election commissions to prepare as if all 1.4 million registered voters 60 and older will cast mail-in ballots in the primary. If they did, the election turnout would far outpace that of previous elections, officials have said. 

The state argued that preparing for that number of voters requires hiring additional poll workers for processing them and printing significantly more ballots and paperwork than normal, the heart of the burden argument. 

But, the plaintiffs said, there remains no evidence that such a tide of absentee votes would in fact overwhelm the state. 

Although record numbers of absentee ballot request forms have been received, and ballots returned across the state, those tallies are nowhere near the 1.4 million estimated submissions, one of the lawyers representing voting rights groups said. 

“My wife and I are pleased that the court affirmed that we and others with underlying health conditions and those that care for them can vote by mail during this once-in-a-century pandemic. However, we believe that no American — underlying health conditions or not — should ever be faced with that most impossible choice on Election Day: Do I stay home to protect my health and the health of my loved ones, or do I risk my life to exercise my constitutional right to vote?” said plaintiff Ben Lay in an emailed release. “COVID-19 has shone a bright light on the cracks in our institutional systems, including access to the ballot box. Tennessee can and must do better in the future.”

Hargett recently spoke before a U.S. Senate committee regarding Tennessee's preparations for upcoming elections — a hearing that became heated as multiple members grilled him on the state's resistance to expanding absentee voting due to the coronavirus.

Hargett, who appeared by video before the Senate Rules and Administration Committee, discussed Tennessee's use of federal COVID-19 relief funds to cover the costs of necessary measures to make in-person voting safer this August and November, as well as buying additional ballot-scanning equipment and absentee envelopes.

“If a court decision were to require us to do absentee, no excuse or universal vote by mail, that would be a game changer for us,” Hargett said on July 22, in response to a question from U.S. Sen. Shelley Moore Capito, R-West Virginia, about Tennessee’s preparedness going into the 2020 election.

'Tennessee is out of step'

The majority of states allow no-excuse absentee balloting or vote by mail, Ballotpedia reports, including several that dropped requirements only recently due to concerns over COVID-19. 

Tennessee, however, is among the remaining few states that continue to require an excuse to vote absentee. Many states also allow absentee ballots to be dropped off in person to proper receptacles with local election commissions, circumventing any possible delays with the post office that have worried Tennessee voters this year.

"All we know is that the number of absentee votes ticked up, and yet the republic still stands ... Tennessee is out of step with nearly every other state in the country in its response to absentee voting during this pandemic," Lee said. "Only three other states do not allow either voting by mail or no-excuse absentee-by-mail voting in the current pandemic."

The plaintiffs have argued that limiting access to absentee ballots stifles the fundamental right of people to vote under the state and federal constitutions — the state believes the method of voting is less of a right and more a privilege under the law. 

The case will return to Lyle, who has not yet set a new hearing in the case, although it's likely the timeline ahead of the November general election will require swift action. 

"The state has not gone out if its way to make it easy for voters subject to the court’s orders to understand when they can vote absentee," Mulroy said. "It's taken Judge Lyle’s orders to make that happen. I'm glad that we will have an opportunity to have Judge Lyle oversee this process of informing voters of their right to vote absentee, which the Tennessee Supreme Court specifically ordered."

Court case far from over

The high court's ruling comes just days before the Tennessee General Assembly returns for a special session to consider legislation related to giving businesses immunity from lawsuits over the pandemic, telehealth and protests. The timing of the ruling will likely spur Democrats and others to call on Republican leaders, including Gov. Bill Lee, to expand the valid excuses for requesting an absentee ballot.

So far, Lee and the Republican supermajority have rejected such calls.

Elsewhere in the courts, a federal judge ruled last week against blocking three Tennessee laws on absentee voting for the primary.

One of those laws is a requirement that first-time voters must show a photo ID to vote. Lyle's ruling didn't address the issue. 

U.S. District Judge Eli Richardson in Nashville issued an order on the laws that bar first-time voters from voting absentee unless they show an ID at the local election office, make the unsolicited distribution of requests for applications for absentee ballots a misdemeanor for people who are not election workers and spell out a signature verification process for those voters. The groups sought a requirement that voters get the chance to fix signature matching issues with their ballots. 

Richardson wrote that he will still consider whether to block the laws for the November election.

Joel Ebert contributed to this report.

Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms.