BREAKING: Judge strikes down TN limits on absentee voting due to pandemic

(Photo by Stephen Maturen/Getty Images)
(Photo by Stephen Maturen/Getty Images)

A Nashville judge ruled Thursday that voters under 60 may request an absentee ballot due to the COVID-19 pandemic, making Tennessee one of the last states to expand mail-in voting in the nation.

The ruling by Chancellor Ellen Hobbs Lyle sets up a showdown in the state’s more conservative appeals court system.

Plaintiffs, including Tennessee voters with health conditions that make them susceptible to the virus but not sick enough to vote by mail under the state’s current rules, sued to expand absentee voting because of the pandemic. They argued that voters shouldn’t have to choose between their constitutional right to vote and their health.

Tennessee argued that it is not logistically possible to implement excuse-free absentee voting, which will be costly. State lawyers contend that absentee voting is prone to voter error, especially by new voters, and increases the chance of fraud.

Chancellor Ellen Hobbs Lyle (Photo: Tennessee Administrative Office of the Courts)

Democratic lawmakers sought to expand absentee voting, but were blocked by Republicans, demonstrating how the issue is politicized in the Volunteer State. Many states, both conservative- and liberal-leaning, have even looser vote-by-mail laws. Some automatically send ballots to voters to return by mail. 

From the ruling: After studying the evidence and the law, and considering argument of Counsel, the Court finds that the evidence does not support the State‘s claims that it is impossible for it to provide expanded access to voting by mail. Respectfully, the evidence is that the assumptions the State has employed in its fiscal and resource calculations are oddly skewed and not in accordance with the methodology of its own expert and industry standards. When, however, normal industry-recognized assumptions are used, the 5 evidence establishes that the resources are there to provide temporary expanded access to voting by mail in Tennessee during the pandemic if the State provides the leadership and motivation as other states have done.

Lyle ruled that voters may request an absentee ballot, but her order does not mean all voters will be mailed one by their local election commissions. 

Lyle ruled the state must “prominently post on their websites and disseminate to County Election Officials that voters who do not wish to vote in-person due to the COVID-19 virus situation are eligible to request an absentee ballot by mail or that such voters still have the option to vote in-person during Early voting or on Election Day.”

“We are gratified that the court saw fit to open up absentee voting to all Tennesseans,” said plaintiff’s attorney Steven John Mulroy. “The court’s decision was thorough, measured, and balanced.  Tennesseans should call upon the State to see the wisdom of this decision and stop their efforts to force people to risk their lives in order to vote.”

Even if Tennessee experiences a 20 percent increase in turnout from 2018, which saw record statewide turnout for the last few decades, the state can handle a rise in absentee requests. Already voters over 60 can request ballots without citing a reason, and the state said anyone who is quarantined due to COVID-19 or caring for someone with the virus may cite the health exception and receive a mail-in ballot.

The state is also taking an array of safety measures, including social distancing between voters in line, masks for poll workers, sanitizers and disposable sticks so voters don’t have to touch the electronic voting screen with their hands.

Sick voters have to essentially be bedridden to be allowed to vote by mail under the rules before the lawsuit. A similar suit was filed last month by nonprofit groups including the Nashville-based Equity Alliance in federal court.

Attorney General Herbert Slatery indicated late Thursday the state will appeal the decision.