(CN) — Appearing virtually before the Tennessee Supreme Court on Thursday, an attorney for the state argued a judge essentially rewrote vote-by-mail laws when she issued an injunction allowing all Tennesseans to send in their ballots during the Covid-19 pandemic.
Janet Kleinfelter, deputy attorney general, argued the high court should overturn the Davidson County Chancery Court’s “broad-ranging injunction” that she said misinterpreted Tennessee election statute and only ends once the pandemic is over.
“Courts don’t construe statutes based upon what the current circumstances are,” Kleinfelter told the justices. “Courts construe statutes based upon the plain language and the legislative intent.”
The two-month-old injunction, which prohibits election officials from rejecting absentee ballot applications by Tennesseans concerned with getting the coronavirus, was still in place as the five-member Supreme court heard from the state and attorneys representing Tennesseans challenging the state’s position.
The Volunteer State allows voters to cast absentee ballots if they have an excuse, such as if they are over 60 or are hospitalized, but election officials said in May the fear of getting Covid-19 would not be enough for someone to obtain an absentee ballot.
In response, two groups of voters sued in state court, arguing they did not fit into any of the excuses the state already provided but should be allowed to vote by mail. They have underlying health issues that make the thought of getting Covid-19 especially fraught or they live with family members who, for example, are immunocompromised.
Since Davidson County Chancellor Ellen Hobbs Lyle issued her June 4 decision, the pandemic has only gotten worse, attorneys noted in their arguments. The number of deaths in the state stemming from Covid-19 has doubled to over 1,000, and total confirmed cases stand at 102,000.
Under early questions from Justices Holly Kirby and Sharon Lee, Kleinfelter said the state believed the statute allowing Tennesseans to vote by mail if they are ill meant they could vote absentee if they had an underlying condition, depending on the facts related to the individual voter, but not if they were simply concerned about being exposed to the respiratory disease.
Kleinfelter asked the judges to take judicial notice of the state’s early voting period. On Thursday morning, the Tennessee Secretary of State reported 426,600 voters had already voted by mail or showed up in person to cast an early ballot.
Because the injunction came out of a hearing where the chancellor heard two cases, two attorneys argued for keeping the judge’s injunction in place.
Steve Mulroy, a law professor at the University of Memphis, said the application to vote by mail does not offer any guidance to voters if they have underlying medical conditions. Kleinfelter’s argument that Tennesseans who have underlying conditions can make the determination they have an excuse to vote by mail is an “entirely novel interpretation” and voters will have little guidance on a form they have to sign under penalty of perjury, he said.
While states surrounding Tennessee have loosened their procedures around absentee voting, those states have done so either by legislative action or through the interpretation of their secretaries of state, Mulroy said in answering the justices’ questions.
“You’re asking this court to be the only court in the country to hold as a constitutional basis that there is a right to an absentee ballot under these circumstances,” Chief Justice Jeffrey Bivins asked Mulroy.
Mulroy responded that the voters bringing the suits are saying the chancellor did not abuse her discretion when she found the “once-in-a-century pandemic” placed an unreasonable burden on the Tennessee’s Constitution’s “very specific provisions expressing and generally guaranteeing a right to vote.”
Angela Liu, an attorney at Dechert LLP who represented some of the Tennessee voters, said the issue over voting absentee was “about the right to vote at all.” She said the state’s logic, allowing voters to vote in “medically inadvisable conditions,” was akin to directing voters to cast ballots in a polling location on fire and filled with smoke.
“We’re in a public health crisis and we’re meeting today virtually by Zoom,” Liu said. “I mean, you don’t have to look beyond this courtroom to really see how Covid-19 is impacting each one of us. I suspect there are reasons why the court has canceled the in-person bar exam in the fall.”
Ahead of Thursday’s arguments, the Republican National Committee and the Tennessee Republican Party submitted an amici brief with the high court arguing even after Hurricane Katrina, a federal court in Louisiana did not extend the time to count absentee ballots there.
“The Chancery Court incorrectly held that Tennessee’s ‘excuse requirement’ implicated plaintiffs’ voting rights, despite the inescapable reality that countless other courts have refused to recognize a fundamental right to vote by absentee ballot,” the RNC’s brief said.
A group of organizations that include the League of Women Voters and the Tennessee NAACP also filed an amici brief of their own. They are a part of another lawsuit challenging Tennessee’s absentee ballot policies during the pandemic that is being heard in federal court.
Tennessee, the voting advocates said, has created a situation where it has told people to stay home to stop the spread of the virus yet expects them to turn out to vote in person.
“But as the August 6, 2020 and November 3, 2020 elections approach, the state has exhibited indifference to Tennessee voters’ reasonable fears around how the pandemic will impact their ability to vote,” the brief states.
Thursday’s hearing ended without the justices saying when they would rule on the cases. But near the end, both sides agreed the justices could issue one opinion for both cases.