Heading into this year, 2020 was set to be one of the most interesting and consequential elections in recent history. However, the 2020 election cycle has been upended by the spread of the deadly COVID-19 virus. Voters standing in line close to each other, handling ballots, and using touchscreens could make for a dangerous environment for transmission of the virus. Election officials and policymakers are giving full attention to mitigation strategies, including voting by mail.
In Tennessee, Governor Bill Lee and Secretary of State Tre Hargett have announced their intention to hold the August election like any other year, rebuffing the expansion of absentee or mail-in voting. Currently, a voter can only receive an absentee ballot if they fall in one of the enumerated categories in Tennessee Code § 2-6-201. These nine categories include people who are living outside of the county, people observing a religious holiday, and people who are over the age of 65 or are unable to appear at their polling place because they are hospitalized, ill, or disabled.
On May 1, Tennessee joined the ranks of other states facing lawsuits over its decision to require in-person voting during the August elections. The lawsuit, filed in federal court in the Middle District of Tennessee, is brought by individual and organizational plaintiffs and alleges that parts of Tennessee’s current election laws related to absentee voting are unconstitutional. The Plaintiffs allege that the decision to require in-person voting in this unprecedented situation violates their fundamental right to vote under the First and Fourteenth Amendments of the U.S. Constitution.
Specifically, the complaint alleges that the current absentee ballot criteria would not cover people who are, or live with people, at increased risk of complications from COVID-19. One of the plaintiffs, Sekou Franklin, does not meet the current absentee ballot criteria, but he takes care of his 76-year-old father who has underlying health issues. Another plaintiff, Kendra Lee, has asthma and bronchitis, but would also not qualify for absentee voting under the current system. Plaintiffs argue that people who are at an increased risk thus have to choose between voting in person, thereby risking their health and safety, or not voting at all.
In addition, several organizations have joined suit, alleging violations of their right to free speech and association under the First and Fourteenth Amendments of the U.S. Constitution based on Tennessee laws that criminalize providing assistance to voters in obtaining an absentee ballot application. Under Tennessee law, it is a Class E felony for a person who is not an employee of an election commission to give any person an application for an absentee ballot, and a Class A misdemeanor for a person who is not an employee of an election commission to give any person an unsolicited request for application for an absentee ballot. The organizational Plaintiffs allege their intent to educate voters about absentee ballots and help prospective voters request absentee ballots, but risk criminal prosecution for aiding individuals obtain an absentee ballot who fear contracting COVID-19 while voting.
The third and fourth claims argue that Tennessee’s failure to provide absentee voters with an opportunity to cure violates their procedural due process rights under the Fourteenth Amendment of the U.S. Constitution. Under Tennessee Code § 2-6-202(g), when the administrator receives the absentee ballot, the administrator must compare the voter’s signature on the application with the voter’s signature on the registration record. Under Tennessee Code § 2-6-204(b), if the signature is missing or the administrator determines that it does not match, the ballot is rejected. While the voter must be given notice that the ballot was rejected, the voter does not have an opportunity to fix the issue before the ballot is rejected. This problem is furthered by the unreliability of signature matching and election officials’ unfettered discretion to reject ballots.
Currently, it is unclear how state and federal courts will address these issues. Lawsuits like the one filed in Tennessee necessarily require a balancing of two, fundamental Constitutional rights—the right to vote, and the States’ rights to control the time, place, and manner of elections. In other words, at a basic level, an individual has the right to vote, but States may dictate when, where, and how those individuals vote. In light of the COVID-19 pandemic, courts are now faced with the unenviable task of determining whether laws like those in place in Tennessee infringe on an individual’s right to vote amidst a global pandemic. Some state courts, such as Texas and New Mexico, have loosened the restrictions on the ability of voters to acquire a mail-in or absentee ballot. But earlier this year, the United States Supreme Court ruled that Wisconsin voters would not be allowed additional time to submit absentee ballots due to complications from the COVID-19 pandemic.
But in Tennessee, all eyes are on the Middle District of Tennessee to determine whether, and under what circumstances, voters will be allowed to cast their ballot from home.