Tennessee judge: Virus by-mail voting guidelines ambiguous

NASHVILLE, Tenn. (AP) — A Tennessee judge on Wednesday said the state's guidance about who can vote by mail due to the coronavirus is “very ambiguous,” and she cited “weighty proof” that other states have expanded to let all voters cast absentee ballots this year — something Tennessee officials say is not feasible.

In a hearing via video conference due to the pandemic, Davidson County Chancellor Ellen Hobbs Lyle cast doubts on some of the state's key arguments against two lawsuits that seek a by-mail voting option for all voters this year to curb the virus' spread at the polls. Lyle also cautioned that whatever she orders needs to be “a practical, workable solution, or it will throw the election into chaos." She raised particular concerns about costs for local governments.

The judge plans to rule Thursday on whether to issue a temporary injunction to allow all voters to request absentee ballots in the Aug. 6 primary. A similar federal lawsuit is also pending.

At one point, she cited a section of the state Constitution that says the right to vote “shall never be denied” to any person entitled to do so.

“When I read that, it really resonated with me that what you’re saying is, ‘It’s better to deny the injunction even if the result is that people don’t vote,’” Lyle said. “That’s what you’re saying, that they don’t get to access that fundamental right that we all treasure under the Tennessee Constitution.”

Alex Rieger of the attorney general’s office called that a “false correlation,” since election officials are taking numerous precautions for in-person voting.

“Even though COVID is a pandemic, the cure can't be worse than the disease," Rieger said. "And in this case, asking county officials to do something they cannot will damage and potentially disenfranchise voters.”

Tennessee has more than a dozen categories that qualify someone for an absentee ballot, from being sick to being 60 or older. State election officials have recommended preparations as though all 1.4 million registered voters 60 and older will cast mail-in ballots in the August primary. Tennessee has historically seen less than 2.5% of votes cast by mail, the state has said.

About a third of states, including Tennessee, require a reason to vote absentee, according to the National Conference of State Legislatures. Plaintiffs' attorneys said Wednesday that about a dozen states have made the change to allow by-mail ballots this year for all registered voters. Several states have been sued to seek the expansion.

Currently, the state's guidance on the 2020 election says someone who “is quarantined because of a potential exposure or who has tested positive to COVID-19 should vote absentee by-mail as a person who is ill.” Fear of getting sick or unwittingly passing on the virus at the polls aren't considered valid reasons to vote by mail.

“This all seems very ambiguous,” Lyle said of the guidance on absentee voting due to COVID-19. “I don’t see clarity here, and when people are signing things under oath, it’s problematic.”

The judge also questioned why the state claims that if it's forced to allow by-mail voting for all, it's planning to prepare as though all 4.1 million registered voters will cast absentee ballots.

Tennessee's voter turnout was 14% in the August 2016 primary, then almost 62% for the November 2016 general election, featuring the presidential election.

The state has contended it doesn't know how many people would vote during an absentee-for-all option amid the pandemic, or which method they would choose.

Plaintiffs' attorney Steven Mulroy argued the state already has what it needs for the by-mail expansion in the August election, “as long as you didn’t assume absurd, completely ahistoric levels of overall voter turnout.”

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The story has been corrected to reflect the voter turnout for the November 2016 election.