Judge Rebukes Tennessee for Ignoring Order on Absentee Voting

Chancellor Ellen Hobbs Lyle in Nashville holds a virtual hearing Thursday over absentee voting in Tennessee during the coronavirus pandemic.

NASHVILLE, Tenn. (CN) — Election officials in Tennessee caused delay and sowed confusion among voters when they did not comply with a judge’s order opening up access to absentee voting during the Covid-19 outbreak, the judge said in a hearing Thursday.

Chancellor Ellen Hobbs Lyle said attorneys for the election officials did not ask the court to alter her order before they changed the form potential voters use to request to vote by mail. During the hearing, Lyle said she would direct the state to change the form and issue new instructions to county election officials.

“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle told attorneys from the Tennessee Attorney’s General Office. “So I’m calling the state out on that for not adhering to the standards of a legal process and not adhering to the order.”

Last week, Lyle issued a temporary injunction that allowed voters who were concerned about casting ballots in person during the Covid-19 outbreak to vote by mail. Because Tennessee requires voters to give a reason to vote absentee, Lyle said those voters should select a reason already on the absentee request form: that the voter is disabled, ill or hospitalized and cannot make it to the polls.

But the state played “fast and loose with the interpretation of this order,” said Steven Mulroy during the hearing over a motion to enforce the order. Mulroy is a law professor who is one of the attorneys representing a group of voters that sued for the ability to vote by mail during the epidemic.

Instead, the state modified the absentee ballot application to add another check-off box that specified the voter was seeking to vote by mail because of Covid-19. 

During the hearing, Lyle said she had considered adding another box to the form but ultimately determined the move was “not correct.”

In the days following the order, Mulroy said election officials asked some voters seeking to vote absentee because of Covid-19 to give their contact information and the process to get them an absentee ballot was not promptly started. This violates the state’s own election contingency plan created to deal with the Covid-19 outbreak, which says to promptly process absentee ballots and requests to vote absentee, Mulroy said.

Other voters were warned they might be prosecuted for voter fraud, he said.

Deputy Attorney General Janet Kleinfelter told Lyle the state intended to help voters, not violate the order.

“We know from experience that had we not had something on that application that referenced Covid-19, that voters would not know what to do,” Kleinfelter said Thursday. “[They] would either have submitted an incomplete application or would have had to spend time trying to find out which box to check.”

Attorneys for the voters bringing the suit asked Lyle to sanction the state by fining it $1,000 a day until it complied with her order. But the judge denied that request and another that would have required the state to pay the plaintiffs’ attorneys fees for investigating the state’s compliance with the order.

The state is in the midst of a budget crisis and a pandemic and the cost would ultimately fall on Tennessee residents, Lyle said.

“There always is the specter of criminal contempt if after today’s orders there’s still noncompliance and there’s disobedience, then that’s a route that the court can go,” she said.

The Attorney’s General Office did not reply to a request for comment. A spokesperson for the Office of Secretary of State declined to comment, saying the office was working on complying with the decision Lyle issued at the hearing.

Angela Liu, an attorney with the firm Dechert LLP, said in a statement the hearing showed the state, like any other party before the court, is not above the law. Liu is representing a second group of voters along with attorneys from the American Civil Liberties Union.

“We hope and expect that the state will comply with the order and that all Tennesseans will be able to vote by absentee ballot if they so choose, rather than risking contracting Covid-19 to exercise their fundamental right to vote,” she said.

On Wednesday, Lyle granted the state’s request to appeal her order but declined to issue a stay because she expects it to be upheld by the higher court.

The judge said from the bench the state has until 5 p.m. Friday to fix the form.

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