Judge orders state to include specific guidance on absentee ballot eligibility due to COVID-19
A judge has ordered Tennessee Secretary of State Tre Hargett’s office to include wording in absentee ballot application forms to make clear that people at greater risk from contracting COVID-19 are eligible to vote by mail.
Nashville Chancellor Ellen Hobbs Lyle’s ruling Tuesday came after the state Supreme Court agreed to vacate the injunction she had imposed earlier when the state took what the chancellor called the “extraordinary step of a last-minute concession during oral arguments” that people with a special vulnerability to COVID-19 (or those who care for people who do) had a valid reason to cast absentee ballots. Had the state taken this position earlier, Lyle said, the case would have been settled long before it reached the Supreme Court.
The high court’s ruling had instructed Hargett’s office to “ensure that appropriate guidance is provided to Tennessee registered voters” about the state’s new stance. While Hargett issued a press release that included reference to people with a special vulnerability to COVID-19 being able to vote by mail, the new application form included no such information.
As such, Lyle ruled the application forms should now include the following excuses for people seeking to vote by mail:
I am hospitalized, ill or physically disabled and unable to appear at my polling place to vote (this includes persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it).
I am a caretaker of a hospitalized, ill or physically disabled person (this includes caretakers for persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it).
Lyle also deemed that other materials issued by the state on the subject of absentee balloting — such as language highlighted at the bottom of the form offering a $1,000 reward for information leading to a conviction for voter — to be “confusing and misleading.” But the chancellor said those details fell outside of her purview.
Hargett’s office was critical of the decision.
“It is ironic to us that the same Chancellor who chastised us for changing the form is now upset because we did not change the form,” Hargett spokeswoman Julia Bruck said in an emailed statement. “The Chancellor is legislating from the bench.”
Hedy Weinberg, the exeutive director of the state chapter of the American Civil Liberties Union, lauded the decision:
The court’s ruling today will ensure that people with special vulnerability to COVID-19 and their caretakers know exactly how to request mail-in ballots. The state’s delay in making this information clear is yet another example of voter suppression in Tennessee. Our state should be working to make it as easy as possible for people to vote, not creating obstacles at every turn and requiring a court order to fix them. We applaud the court for compelling the state to make Tennesseans’ voting rights clear and to do so quickly.
Supreme Court: Reversal on vulnerable voters makes absentee balloting ruling unnecessary
The state Supreme Court has vacated a lower court’s temporary injunction allowing anyone fearful of contracting COVID-19 to cast absentee ballots after the state reversed itself to say it considers people with an underlying vulnerability to the virus — or those caring for someone who does — to be eligible to vote by mail.
State Election Coordinator Mark Goins told Associated Press reporter Jonathan Mattise in May that “in consultation with the Attorney General’s office the fear of getting ill does not fall under the definition of ill.”
But under questioning during oral arguments in the Supreme Court last week, Janet Kleinfelder of the AG’s office conceded that voters’ underlying conditions or of those living with them would be allowed to vote by mail.
“If the voter has made that decision, then yes, they may vote absentee,” Kleinfelter said.
Justice Cornelia Clark wrote in the majority opinion:
At oral argument before this Court, the State conceded that, under its interpretation […] persons who have underlying medical or health conditions which render them more susceptible to contracting COVID-19 or at greater risk should they contract it (“persons with special vulnerability to COVID-19”), as well as those who are caretakers for persons with special vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct the State to ensure that appropriate guidance, consistent with the State’s acknowledged interpretation, is provided to Tennessee registered voters with respect to the eligibility of such persons to vote absentee by mail in advance of the November 2020 election.
The high court said the lower court erred in extending the order to people who have no specific vulnerability to COVID-19.
Supreme Court turns down state’s effort to halt expanded absentee voting amid pandemic
The Tennessee Supreme Court has declined to immediately halt a judge’s order that the state must allow any voters concerned about being infected by COVID-19 to cast their ballots by mail. But the state’s highest court did agree to directly take up the full legal challenge of the ruling, bypassing the intermediate Court of Appeals.
Tennessee high court keeps mail voting expansion amid appeal (from @AP) https://t.co/ULFvvxjkWO
— Jonathan Mattise (@JonathanMattise) June 24, 2020
Nashville Chancellor Ellen Hobbs Lyle earlier this month found the state’s position that fear of coronavirus infection was not a sufficient reason to request an absentee ballot presented an “unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”
When state election officials responded by creating a new category on the application form for those worried about COVID-19 rather than have it covered by the existing medical exception, Lyle called out the state for failing to adhere to her original order.
“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said in a recent hearing.
While the expedited appeal will speed up the state’s legal challenge, it appears unlikely the high court will decide the case before the Aug. 6 primary. Absentee ballots are already being sent out, and in-person early voting begins on July 17.
Polls find support for expanded absentee voting during pandemic
Two polls released Tuesday indicate strong support for expanding voting by mail amid the coronavirus pandemic.
One survey conducted on behalf of Secure Democracy by Republican pollster Anchor Research and the Baker Group found 67% of Tennesseans support allowing all voters to cast absentee ballots while also keeping polling locations open. Another 31% were opposed.
A survey conducted on behalf of Vanderbilt University found 57% support voting by mail, while 42% opposed. The SSRS poll found opinions were heavily influenced by voters’ political leanings. While 81% of self-identified Democrats said they supported absentee balloting, 71% of Republicans were opposed. Among independents, 68% said they were in favor, while 32% were against.
Among other findings, Secure Democracy found a 61% to 33% approval rating for Gov. Bill Lee and a 57% to 43% favorability rating for President Donald Trump.
Vanderbilt had Lee’s approval rating at 64% to 27%, and Trump’s at 51% to 47%.
Vanderbilt polled 1,000 registered voters by phone between May 5 and May 22. It has a margin of error of ±3.8 percentage points. Secure Democracy’s online poll of 740 likley voters was conducted on May 26.
