The state of Tennessee has failed to comply with a Tennessee Supreme Court instruction to educate voters with pre-existing conditions making them vulnerable to COVID-19 of their right to vote by mail for the November election. The charge came in filings with the ongoing legal dispute over absentee voting rights during the deadly pandemic.
The Supreme Court reversed a lower court’s ruling that allowed voters who feared COVID-19 to request absentee ballots for the November election. But when the contentious lawsuit was argued in front of Tennessee’s top court earlier this month, a state attorney representing the Secretary of State and Administrator of Elections surprisingly revealed the state had reversed course and would allow voters with pre-existing conditions to request absentee ballots for November.
Justice Cornelia Clark, in her ruling for the 4-1 majority, instructed the state to “ensure that appropriate guidance is provided to Tennessee registered voters with respect to the eligibility requirements of such persons (with pre-existing conditions).” The state was also ordered to provide guidance to county election commissions.
After the Supreme Court ruling, the state updated the frequently-asked-questions sections of its website to include language stating:
“Voters who have an illness, physical disability or other underlying health condition that makes them especially vulnerable to COVID-19, and who, because of that condition, are unable to appear in the polling place on Election Day and instead wish to vote by-mail should check” the box on the absentee request form for hospitalized, ill or disabled.
Attorneys for plaintiffs in the case say the state has not gone far enough and estimate that a majority of Tennessee voters qualify as having a pre-existing condition that makes them vulnerable to COVID-19 or are a caretaker of a person who is vulnerable.
They’ve filed a motion with the Chancery Court in Nashville seeking to require the state to comply with the Supreme Court directive.
“If you add up all those with underlying conditions making them COVID-vulnerable, and their caretakers, you get a substantial majority of Tennesseeans who can vote absentee this November. Unfortunately, the State is not making it easy for people to find this out, despite being directed to do so by the Tennessee Supreme Court,” plaintiffs’ attorney Steve Mulroy said.
The state has also provided contradictory instructions to county election officials, according to legal filings by the plaintiffs’ attorneys.
County election commissions are where the rubber meets the road for explaining to voters who is eligible to request an absentee ballot.
The Supreme Court directive said the state should direct voters to use the Center for Disease Control guidance on pre-existing conditions to determine who is vulnerable to the virus. The CDC website lists eight diseases or conditions that put people at increased risk of severe illness from COVID-19: cancer, chronic kidney disease, chronic obstructive pulmonary disease (COPD), immunocompromised state from solid organ transplant, obesity (a body mass index of 30 or higher), serious heart conditions such as heart failure, coronary heart disease or cardiomyopathies, sickle cell disease and Type 2 diabetes.
The Supreme Court directive makes no mention of whether those conditions make a person physically unable to appear at the polls. But, Tennessee Coordinator of Elections Mark Goins said in an Aug. 7 letter to county election officials that voters should use “common sense” when deciding whether their pre-existing conditions should motivate them to ask for an absentee ballot.
Goins said in his letter to the county officials that voters may wish to go by the CDC guidance about underlying medical conditions that may create a vulnerability to COVID-19.
Then he explained: “Voters should also use common sense as they consider individual underlying illnesses, disabilities and health conditions (of themselves or of those in their care) to determine whether they or their charges are especially vulnerable to COVID-19. Is the voter otherwise going to public places such as Walmart, Home Depot, shopping centers or public places? As you all are aware, you have implemented extensive measures to provide safe voting environments pursuant to the Tennessee Election COVID-19 Contingency Plan. Most of these safety measures are far in excess of what other places of businesses throughout the state are required to do.”
In a brief filed with the Chancery Court, the plaintiffs’ attorneys argue that voting in person in Wisconsin earlier this year led to an uptick in positive cases.
Is the voter otherwise going to public places such as Walmart, Home Depot, shopping centers or public places? Most of these (voting) safety measures are far in excess of what other places of businesses throughout the state are required to do. – Mark Goins, Tennessee Coordinator of Elections
The state has already expanded the absentee request form to include people infected with COVID-19 and their caretakers. And, the state has implemented a number of safety protocols to protect people while voting in person, including touchless voting, a health screening when entering the precinct and hand sanitizing stations. Masks are encouraged, but not required in order to vote.
Voters over 60, voters who won’t be home on election day, military service members and hospitalized people are also allowed to request absentee ballots.
The Supreme Court sent the lawsuit back to Chancellor Ellen Hobbs Lyle to oversee remaining disputes. The state has rejected the plaintiffs’ claims that it did not comply with the Supreme Court’s ruling.
The Tennessee Lookout sent three emails to a spokesperson for the Secretary of State and Coordinator of Elections to ask what steps the state is doing to get the word out to voters with pre-existing conditions being able to vote request absentee ballots. The spokesperson did not respond to those emails.
The issue of voting by mail has become politicized, with President Donald Trump and other Republicans expressing fear that a rise in mail-in voting could increase voter fraud. Advocates for expanding voting by mail say it doesn’t increase fraud and is a safer alternative because of the pandemic.
Supreme Court ruling: As noted, the State has agreed that those plaintiffs and persons with special vulnerability to COVID-19 or who are caretakers of persons with special vulnerability to COVID 19 are eligible to vote absentee by mail pursuant to the statutory eligibility requirements for absentee voting by mail set forth in Tennessee Code Annotated section 2-6-201(5)(C) and (D). The State also has agreed that it has a responsibility to provide – 15 – instructions to local election officials and to voters that are consistent with its expressed interpretation of Section 2-6-201(5)(C) and (D). We accept the State’s concessions. State v. Franklin, 308 S.W.3d 799, 811 (Tenn. 2010) (citing Barron v. Tenn. Dep’t of Human Serv., 184 S.W.3d 219, 223 (Tenn. 2006)). We have no reason to doubt that the State will faithfully discharge its duty to implement the absentee voting statutes and will permit such persons to vote absentee by mail pursuant to the requirements, processes, and procedures set forth in those statutes. West v. Schofield, 460 S.W.3d 113, 131 (Tenn. 2015) (stating that public officials are “presumed to discharge their duties in good faith and in accordance with the law” (citations omitted)). We instruct the State to ensure that appropriate guidance is provided to Tennessee registered voters with respect to the eligibility requirements of such persons to vote absentee by mail in advance of the November 2020 election.