State Supreme Court OKs absentee August votes, but limits absentee for November

By , Daily Memphian Updated: August 05, 2020 8:55 PM CT | Published: August 05, 2020 8:50 PM CT

The Tennessee Supreme Court says absentee ballots cast for the August ballot are valid and will be counted, but November voters who have general pandemic-related health concerns about voting in person will not be granted mail-in ballots.

The court ruled Wednesday, Aug. 5, in the state’s appeal of a Davidson County Chancery Court ruling that ordered state election officials to expand absentee ballot applications to include those with health concerns in general.


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Absentee ballots can be allowed for those with underlying medical conditions that could be aggravated by the virus and the caretakers of those individuals, however. The concession is one attorneys for the state made in oral arguments before the court a week ago.

State Deputy Attorney General Janet Kleinfelter told the court the state considers underlying medical conditions and caretaker concerns to be a valid reason for voting absentee and that allowing such a reason was blocked by the broader Chancery Court order.

“We hold that injunctive relief is not necessary with respect to such plaintiffs and persons,” Clark wrote in vacating the temporary injunction issued in June by Chancellor Ellen Hobbs Lyle and remanding the case to Chancery Court.

“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 eligibility of such persons to vote absentee by mail in advance of the November 2020 election,” reads the Supreme Court ruling.

The ruling comes in combining two challenges of the state’s refusal to expand the conditions for absentee voting because of the pandemic. One featured a group of Memphis plaintiffs, the other a Nashville plaintiff.

In one case, a plaintiff was a cancer survivor with a compromised immune system. In another, the plaintiffs contended they had concerns about voting in person during the pandemic and that voting in person amounted to choosing between their health and the right to vote.


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Clark called it a “hybrid” case with the risk of the virus to those who didn’t have a “special vulnerability” to be “significantly less” than that for the other plaintiffs. She also cited polling place preparations made by the state and local election commissions for in-person early and election day voting.

And Clark wrote that the state didn’t have to demonstrate election fraud to be able to enact rules for voting with the purpose of preventing it.

“The election statutes promulgated by the Legislature reflect a preference for in-person voting,” she wrote. “That preference represents a policy choice within the scope of the (Tennessee) Constitution’s express delegation to the Legislature.”

The Legislature, she noted, has delegated its authority to the state coordinator of elections to oversee elections, including whether or not to expand absentee voting during the pandemic.


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“These policy choices will be judged by history and by citizens of Tennessee,” the ruling reads. “We, however, properly may not and will not judge the relative merits of them, regardless of our own views. To do so would be to exceed the property scope of our rules as jurists.”

But in a separate opinion that concurred with some legal conclusions but dissented on other points, Justice Sharon Lee said the majority ruling didn’t go far enough in allowing all absentee votes to be counted for the August elections.

“All qualified Tennessee voters – like voters in 45 other states – should be allowed to apply to vote by absentee mail ballot during the unprecedented and deadly COVID-19 pandemic that is gripping our community, state, nation and world,” she wrote.

Lee noted that Tennessee has no statewide mask update and is “out of step with nearly every other state in the country in its response to absentee voting during his pandemic.”

“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,” Lee wrote.

Lee found the state’s claims that allowing broader absentee voting would cause “bedlam and financial ruin” in the expense of accommodating those votes to be “just not credible.”

She also rejected claims of an increased risk of voter fraud by the state for limiting absentee balloting even in a pandemic.

“Voter suppression is not an acceptable plan,” Lee wrote.

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Topics

Tennessee Supreme Court absentee voting Cornelia Clark Sharon Lee
Bill Dries

Bill Dries

Bill Dries covers city government and politics. He is a native Memphian and has been a reporter for more than 40 years.


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