Judge: Tennessee must allow vote by mail for all amid virus

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Davidson County Chancellor Ellen Hobbs Lyle ruled that the state’s limits on absentee voting during the pandemic constitute “an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”

The decision upends a determination by Republican Secretary of State Tre Hargett’s office that fear of catching or unwittingly spreading the virus at the polls wouldn’t qualify someone to vote by mail. The state argued such an expansion wouldn’t be feasible for the 2020 elections, claiming lack of money, personnel and equipment for increased voting by mail, among other concerns.

The ruling is likely to be appealed.

The decision requires the state to “prominently post on their websites and disseminate to County Election Officials that voters who do not wish to vote in-person due to the COVID-19 virus situation are eligible to request an absentee ballot by mail or that such voters still have the option to vote in-person during Early voting or on Election Day.”

The judge wrote that the state has taken an “unapologetic” position and has relied on “oddly skewed” assumptions — including assuming preparations for 100% of registered voters to vote absentee if all were allowed — that go against its own expert and industry standards. Eleven other states, meanwhile, have taken a “can-do approach” by relaxing voting by mail restrictions for the 2020 election, Lyle wrote.

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“When, however, normal industry-recognized assumptions are used, the evidence establishes that the resources are there to provide temporary expanded access to voting by mail in Tennessee during the pandemic if the State provides the leadership and motivation as other states have done,” the judge wrote.

Tennessee has more than a dozen categories that qualify someone for an absentee ballot, from being sick to being 60 or older.

The Republican-led Legislature and GOP Gov. Bill Lee have dismissed the idea of offering absentee ballots to all voters, with lawmakers voting against Democratic expansion proposals more than once this week as they meet during pandemic times.

Instead, state election officials have recommended preparations as though all 1.4 million registered voters 60 and older — about 1 of every 3 registered voters — will cast mail-in ballots in the August primary. Historically, Tennessee has historically seen less than 2.5% of votes cast by mail, the state has said.

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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.

Several states who have refused have been sued, including Texas, where a federal judge last month ordered absentee voting be made available to any voter in the pandemic.

Tennessee’s voter turnout was 14% in the August 2016 primary, then almost 62% for the November 2016 general election, featuring the presidential election. In the 2018 non-presidential year, about 30% of registered voters turned out for the August primary, and 54% in the November election.

Tennessee’s August election will be another test case as U.S. states try to safely prepare for the fall general election highlighted by the re-election bid of President Donald Trump, who has been staunchly against opening up absentee voting to everyone during the pandemic.

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The state court lawsuits were led by #UpTheVote901 and by the American Civil Liberties Union of Tennessee.

“This is a major victory for voting rights, said Dale Ho, director of the ACLU’s Voting Rights Project. “This ruling eliminates the excuse requirement for the 2020 elections, meaning Tennesseans will not have to risk their health in order to vote.”

The Lawyers’ Committee for Civil Rights Under Law and the Campaign Legal Center have filed a similar federal lawsuit.

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