Tennessee Judge Weighs Crucial Question of Absentee Voting

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

NASHVILLE (CN) — A Tennessee judge on Wednesday was asked to make the difficult decision of whether the state should loosen restrictions on absentee voting during the Covid-19 pandemic.

Davidson County Chancellor Ellen Lyle said the stakes are high.

“Whatever I order, it’s got to be a practical, workable solution or it will throw the election into chaos,” Lyle said Wednesday during a hearing on two consolidated lawsuits.

Davidson County Chancery Court is the venue to file lawsuits against several major state agencies in Tennessee.

Tennessee voters filed two lawsuits in May challenging the state’s limits on who can vote absentee during the Covid-19 pandemic. After elections officials said that fear of contracting the virus was not a valid excuse to vote absentee, the plaintiffs asked Lyle to issue a temporary injunction that would open up absentee voting.

The voters said they would be disenfranchised if they were forced to choose between showing up at a polling place in close contact with others, or protecting their lives by staying home.

Lyle said the Tennessee Constitution described the right to vote in stronger language than federal law.

The big question on Lyle’s mind: Could Tennessee pull off no-excuse absentee voting?

Two groups sued Tennessee in state court, one of them represented by the American Civil Liberties Union. Lyle heard both cases at the Wednesday hearing. A third lawsuit was filed in federal court. Each one challenged the state law that prevents people from voting absentee unless they fall into an exemption, such as being older than 60, or ill.

The proceedings were conducted remotely, with attorneys from the Tennessee Attorney General’s Office and plaintiffs’ attorneys participating via Zoom.

The courthouse where the Davidson Chancery Court conducts business was set on fire during weekend protests of the police killing of George Floyd. Wesley Somers, 25, of Hendersonville, was arrested and federally charged Wednesday.

The graffiti, water and fire damage did not affect the operations of the Chancery Court, according to Court Clerk Maria Salas. One of the plaintiffs voluntarily nonsuited his claims Friday because he posted a 19-second video from a protest in Memphis that showed him near other people, according to a brief submitted by the state.

Alex Rieger, assistant attorney general, argued that the state could not open up absentee voting to any voter concerned about contracting Covid-19.

Historically, only about 2.5% of Tennessee voters cast ballots by mail. He said the state was preparing as if every registered voter over 60 — 33% of the voting population — would apply for an absentee ballot.

Rieger said that if Lyle issued a temporary injunction county voting officials would be overwhelmed. They would have to prepare as if every registered voter, all 4.1 million of them, decided to vote by mail and at the same time keep polling sites open. Because no recent elections have been conducted during a pandemic, the state had no data to indicate what to expect, Rieger said.

“We must have the ability to make sure that every voter in Tennessee, if they are permitted to vote no-excuse absentee, can do so or if they want to vote in person to make sure they can do so as well, because we can’t run that risk of disenfranchising a voter,” Rieger said.

While the state printed the ballots, counties across the state would be tasked with storing them in secure locations and hiring additional staff to open the ballots on election day and start counting.

Rieger said affidavits from county election officials warn that such a ramp-up of absentee ballots would burden the state and could lead to disenfranchisement of even more voters. The lawsuits come as Tennessee is facing a virus-related budget crunch and state agencies have been asked to cut their budgets by 12%. 

“It is not feasible to (do) statewide, no-excuse absentee voting,” Rieger said. “It’s too expensive. It carries risk to the voter. It risks sowing confusion and chaos into an election process that’s already ongoing.”

But according to Steven Mulroy, a law professor at University of Memphis who represented some of the voters, the state made an assumption that every election office would have to prepare as if 100% of registered voters would vote in person and 100% would cast an absentee ballot.

That calculation does not comport with industry standards, nor the state’s own expert, Washington Secretary of State Kim Wyman, Mulroy said.

According to Mulroy, only a fraction of people turn out to vote in a given year and the state probably has enough ballots to cover voters during the August primaries. Doing some calculations during the hearing, Mulroy said about 840,000 people may cast absentee ballots in an August election, if absentee voting restrictions were loosened.

Other neighboring states have loosened restrictions on absentee voting during the pandemic, including Kentucky, Arkansas and Alabama, a fact Lyle called “weighty proof.”

Angela Liu, an attorney with Dechert LLP, said there never has been 100% turnout. During the state primary in August 2016, only 14% of Tennessee voters cast ballots. If the state is preparing for 33% of its voters to vote absentee, then it is ready for its August primaries this year, Liu said.

She said Tennessee did not explain why it could not change its voting procedures as about a dozen other states have done.

“Your honor, bureaucratic incompetence cannot be a defense to a constitutional violation,” Liu said.

Lyle said she would issue her opinion on Thursday.

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