Absentee voting by mail in Tennessee is a privilege and not a right under past Tennessee Supreme Court rulings, the state argued Thursday, July 30, before the Tennessee Supreme Court.

Attorneys for plaintiffs, including several Memphis voters, argued the health risks of the ongoing COVID-19 pandemic make access to the absentee ballot the only acceptable choice for many voters who fear for their health if they vote in person.

“This case raises the important question of whether the Tennessee Constitution’s right to vote, a right which this court has raised as being fundamental, also encompasses the right to vote safely,” said plaintiff’s attorney and former Shelby County Commissioner Steve Mulroy. “Or whether it’s the case that the state can force voters to choose between their franchise and their health.”

The arguments before the state’s highest court came hours before the Thursday deadline to apply for an absentee ballot in the August elections. More than 16,000 applications have been processed just in Shelby County. Through Wednesday, 8,694 absentee ballots with selections marked by voters have been included in the early voting turnout for Shelby County.

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The Supreme Court is hearing the state’s appeal of a Davidson County Chancery Court ruling in June that ordered the state to allow absentee voting for Tennessee voters who say they have concerns for their health in the current pandemic about in-person voting.

The justices heard an hour’s worth of arguments from both sides in two legal challenges of the state’s refusal to expand absentee voting in the pandemic. The two challenges have been combined into a single case. A ruling is expected later.

The arguments were punctuated with lots of questions from the justices.

Deputy Tennessee Attorney General Janet Kleinfelter told the justices that Davidson County Chancellor Ellen Hobbs Lyle issued a court order expanding absentee voting that improperly overstepped the role of the judiciary in such matters.

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Kleinfelter argued that no other state where absentee voting expansion has taken place in the pandemic was the result of a court ordering such an expansion.

“Are we to ignore the pandemic and that over 1,000 people have died?” Justice Sharon Lee asked, referring to the statewide death toll.

“No, but at the same time the court can’t ignore its previous rulings,” Kleinfelter answered. “It can’t ignore that what the plaintiffs are arguing for is judicial policy-making.”

Justice Holly Kirby also questioned the distinction between absentee voting being a privilege and not a right.

“Isn’t it just another lawful way to vote?” she asked. “The purpose of the elections statute explicitly — the language of the legislature — is to encourage maximum participation by all citizens. Isn’t that what we are talking about? Voting is a necessity to participatory democracy.”

Kleinfelter said the state constitution also says there is an obligation “to protect the freedom of elections and the security of the ballot box.”

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“That is why the legislature has said we are not going to just open up absentee ballots to everyone,” she told Kirby. “But we are going to confer that privilege, that opportunity, on certain people because of their circumstances. What the trial court has done is said, ‘I am going to make that policy decision and confer that privilege upon every Tennessean,’ taking that decision outside the legislature.”

The state contends the trial court order leaves the expanded use of absentee ballots an option with no end date.

Plaintiff’s attorney Angela Liu said the expanded use of absentees by the order would certainly continue through the November elections and “as long as there is a state of emergency.” 

“There’s no question but that there is a burden on the state to gear up for an awful lot of absentee vote applications,” Kirby told Liu. “Don’t we have to weigh that against a more modest burden?”

The more modest burden would be the court ruling that the absentee voting applications could be modified to allow those claiming underlying conditions but eliminating the current more general reason of health concerns about voting in person.

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Kleinfelter said underlying medical conditions that make a voter susceptible to the virus could qualify as a reason for an absentee ballot, even though that reason is not a reason listed on the ballot application.

“How would the average voter know that interpretation based on the form?” Lee asked. “There’s nothing on there about if you have underlying health conditions. There’s no way the voter would know that from reading your absentee voting application.”

“It’s a very decentralized process,” Kleinfelter said, noting there are 95 county election commissions across the state.

“You’re saying that in these instances, the (state) coordinator of elections would be instructing the local administrators and election boards that they should be granting an absentee ballot under these circumstances?” Chief Justice Jeffrey Bivins asked.

Kleinfelter agreed.

“The problem is that’s not what the trial court did,” she added.

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Liu argued that the issue isn’t about a specific option for voting in absentee balloting. She argued that the COVID-19 pandemic makes absentee voting an issue of voting that way or not voting at all for some citizens.

“We’re in a public health crisis. We’re meeting today virtually by Zoom,” she said. “You don’t have to look beyond this courtroom to see COVID-19 is really impacting each one of us.”

Liu also pointed to the court’s recent decision to cancel in-person Tennessee bar exams this fall.

She also noted that the state’s pandemic voting precautions don’t include a requirement that voters wear masks at polling places.

“What they are saying is the state can force you to subject yourself to medically inadvisable conditions to vote, which is pretty remarkable,” Liu told the court. “Under this logic, the state could say, ‘You have the right to vote. But if the polling place is on fire, you might be subjecting yourself to smoke inhalation. You might be OK. You might not. But don’t say we didn’t give you the right to vote.’”