Judge Expands Vote-by-Mail in Tennessee During Covid-19 Outbreak

This is what the virtual hearing on absentee voting looked like in Tennessee on Wednesday.

(CN) — Citing the fact the state of Tennessee cannot compel voters to wear masks when they visit their polling locations in the upcoming August primary and November election, a Tennessee judge issued a temporary injunction allowing Tennesseans to apply to vote absentee because of Covid-19.

“The Court concludes that the State‘s restrictive interpretation and application of Tennessee‘s voting by mail law … during the unique circumstances of the pandemic, constitutes an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution,” Chancellor Ellen Hobbs Lyle wrote in her 32-page order.

On Wednesday evening, the Davidson County Chancery Court chancellor granted the injunction of a group of voters who, despite being concerned about contracting the virus, were unable to obtain absentee ballots under Tennessee’s election laws.

The order directs the state to allow any voter who finds it is “impossible or unreasonable” to cast a ballot in person because of the coronavirus to do so by mail.

In order to obtain an absentee ballot in Tennessee, voters typically needed an excuse to receive one, such as if they were over 60 or in the military. The state’s election officials said earlier the fear of getting the virus was not a valid excuse to vote by mail.

In two lawsuits, voters challenged the state’s decision not to expand vote by mail in state court. In one filed May 15, the American Civil Liberties Union represented a two-time cancer survivor whose wife takes medication that causes her to be immunocompromised.

While a third challenge to the law is pending in federal court, Lyle heard the motions for temporary injunction made in the two cases in a hearing Wednesday.

Other neighboring states such as Alabama, Arkansas and Kentucky all made changes to their voting procedures because of the Covid-19 outbreak, Lyle wrote. But Tennessee cited impossibly high costs and a worry of fraud as some of the reasons for not increasing the access to absentee voting.

But the evidence did not support the state’s assertions, Lyle said, and instead the state used “oddly skewed” calculations that were not in accordance with methods used by other election officials.

“The State‘s position is unapologetic,” Lyle wrote. “It claims that unlike the can-do approach of two-thirds of the U.S. States who have for years allowed any voter to vote by mail and eleven more states that have relaxed voting by mail restrictions for the 2020 elections due to the pandemic, it is impossible for the State of Tennessee, in a state of emergency, to expand access to voting by mail on a temporary basis.”

Furthermore, Tennessee’s own expert, Washington Secretary of State Kim Wyman, debunked its claim that vote-by-mail increases voting fraud, according to the order. And, Lyle wrote, the state already has taken steps to ensure the integrity of vote-by-mail, such as verifying the voter’s signature matches on both the ballot and the ballot request form.

The order comes as courts have been considering the issue of vote-by-mail in Texas. On Wednesday, the Fifth Circuit overruled a federal judge’s decision to expand access to mail-in voting there.

Attorneys for the ACLU declared the Tennessee order a voting rights victory.

Thomas Castelli, legal director for ACLU of Tennessee, said in a statement, “This ruling makes it possible for voters to choose how to safely vote.”

But Tennessee Attorney General Herbert Slatery III said in a statement of his own the ruling was made despite the declarations of state and county election officials in Tennessee that warned eliminating the excuse requirement could result in election disruption.

“It is yet another court decision replacing legislation passed by the people’s elected officials with its own judgment, largely ignoring the practicalities of implementing such a decision, and doing so in the midst of a pandemic and budget crisis,” Slatery said.

A spokesperson for the Tennessee secretary of state said it expects the state will appeal the order.

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