by Jonathan Mattise — 

NASHVILLE — The Tennessee Supreme Court on Wednesday overturned the option for all eligible voters to vote by mail in November due to COVID-19.

The ruling nixes a June expansion order by a lower court that state election officials opposed. The decision came the day voters could start requesting absentee ballots for the general election.

The high court’s decision restores Tennessee’s excuse-based system for November, with COVID-19 related additions that include exposure-based quarantining, caretaking and underlying health conditions. The ruling requires the state to provide “appropriate guidance” to voters regarding the underlying health conditions qualification, which was first discussed by the state during oral arguments last week.

“We find that the State’s interests in the efficacy and integrity of the election process are sufficient to justify the moderate burden placed on the right to vote of those plaintiffs and persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19,” Justice Cornelia Clark wrote in the opinion.

Four justices voted in favor of overturning the expansion. Justice Sharon Lee opposed the move, but supported the absentee voting option regarding underlying health conditions.

“This ruling does not go far enough,” Lee wrote. “All qualified Tennessee voters — like voters in forty-five 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.”

The American Civil Liberties Union, which helped sue over the expansion, agreed.

“The court should have gone further, however, and ruled that all eligible voters have a right to vote safely by mail,” said Dale Ho, director of the ACLU’s Voting Rights Project. “But this ruling remains an important victory for many Tennessee voters.”

Republican Secretary of State Tre Hargett’s office has recommended preparations as though all registered voters 60 and older, a group of 1.4 million voters automatically eligible to vote absentee and more than a third of Tennessee’s registered electorate, will cast mail-in ballots in the primary. Historically, Tennessee has seen less than 2.5% of votes cast by mail, according to the state.

Illness is another of more than a dozen excuses that make a voter eligible to vote by mail in Tennessee. Fear of catching or spreading the virus is not one, the state has determined.

Hargett praised the Supreme Court’s ruling.

“I appreciate the Tennessee Supreme Court agreeing with our analysis of Tennessee election law,” Hargett said in a statement. “I am also grateful for the excellent representation provided by the Office of the Attorney General.”

Justices ordered the guidance for voters on the underlying conditions exemption after last week’s hearing, when they questioned why it wasn’t mentioned in the election plan from April or on the absentee ballot application form. The state’s attorney said it’ll be up to voters to determine what constitutes a condition that makes them too vulnerable to vote in person for November.

The state has argued the expansion is unfeasible for the 2020 election and touted offerings for in-person early voting with precautions.

Given the state’s preparations and precautions, the majority opinion said that the burden on the right to vote for people who don’t have underlying health conditions or care for someone who does “is best characterized as moderate,” not “severe.”

The plaintiffs include Memphis area voting rights group #UpTheVote901 and several voters. The ACLU filed one of two state court lawsuits, which were considered together. A number of other groups filed briefs on either side, including the Republican National Committee, which opposed the expansion ruling.

The Lawyers’ Committee for Civil Rights Under Law and the Campaign Legal Center have filed a similar federal lawsuit that also challenges three other restrictions on absentee voting. One bars first-time voters from voting by mail unless they show ID at a local election office beforehand.

“Tennessee remains one of the most restrictive in the nation when it comes to access to absentee ballots this season,” said Kristen Clarke, president of the Lawyers’ Committee group. “This is an injustice and we look forward to moving our litigation forward in federal court.”

Only a handful of states are not offering by-mail voting for everyone during the pandemic, though two-thirds of states allowed the practice before it.

Historically, Tennessee has seen less than 2.5% of votes cast by mail, according to the state.


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