The American Civil Liberties Union, the ACLU of Tennessee, and Dechert LLP filed a lawsuit Friday, May 15, seeking to make absentee voting available to all eligible Tennessee voters during the COVID-19 pandemic.

Multiple elections are set to take place in Tennessee between May and the end of the year, including a major statewide election Aug. 6 and the general election Nov. 3. Because COVID-19 is highly contagious and deadly, many voters will not be able to physically go to a polling place without risking their health, according to a release from the ACLU. 

Lamar to keep fighting for universal absentee ballots

The lawsuit marks the third legal challenge against the state’s absentee ballot law. The other two filings had strong representation from the Memphis area.

Tennessee Elections Coordinator Mark Goins reportedly said this week fear of the COVID-19 pandemic does not qualify as a reason to vote absentee ballot, based on consultation with the Attorney General’s Office.

Most states allow any eligible voter to cast an absentee ballot, but Tennessee requires that voters provide an excuse to do so. The state has a very narrow set of criteria to qualify for absentee voting, meaning the vast majority of voters would be forced to vote in person — or avoid voting at all for fear of becoming ill, disenfranchising thousands, the release says.

Because there is no vaccine, social distancing measures and avoiding gathering in groups (as well as consistent hygiene practices and wearing a mask), are the only known measures for protecting against the spread of COVID-19. Yet Tennessee’s excuse requirement does not recognize practicing social distancing measures and/or self-quarantining as a valid reason for voting absentee by mail.

Governor: Fear of COVID-19 no reason for mail-in absentee ballots

“No one should be forced to choose between their health and their vote. Tennessee can simultaneously keep the public safe and protect democracy, but is refusing to do so. Eliminating the excuse requirement during COVID-19 is a common-sense solution that protects people’s health and their right to vote, which is why many other states have already made vote by mail and absentee voting available,” said Dale Ho, director of the ACLU’s Voting Rights Project, citing states such as West Virginia, Indiana, Delaware and Virginia, among others. 

The groups are asking the court to block the state from enforcing the excuse requirement for the 2020 election calendar and as COVID-19 transmission continues to occur; provide guidance instructing local election officials to issue absentee ballots to all eligible voters; and conduct a public information campaign informing voters about the elimination of the excuse requirement at this time.

Election Commission prepares for increase in absentee ballots

“Everyone should have the right to vote by mail during the pandemic,” said Thomas H. Castelli, ACLU of Tennessee legal director. “During this health crisis, the ability to have a say in our government is more critical than ever. We hope this lawsuit will ensure that the COVID-19 pandemic does not result in voter suppression in the 2020 elections.”

The case was brought on behalf of several Tennesseans whose health would be at risk if forced to vote in person while COVID-19 is spreading.

Absentee ballot advocates sue Secretary of State over COVID-19 fears

“I am a disabled, two-time cancer survivor and my wife takes medication for a chronic condition that leaves her immunocompromised. The only way we can vote safely right now is through a mail-in ballot, but under current state law, we don’t qualify,” plaintiff Ben Lay said. “We are suing the state because we shouldn’t have to choose between our health and our vote — no one should.”

The lawsuit, Lay v. Goins, was filed in the Chancery Court for Davidson County in Nashville.