State of Elections

William & Mary Law School | Election Law Society

Election 2020: Tennessee Slow to Protect Voters

By Maxwell Weiss

Tennessee is among a waning list of states attempting to increase voting restrictions during the pandemic. Many states have changed their election laws to allow any voter to vote using an absentee ballot. However, the Volunteer State is one of five states without no-excuse absentee voting this November, despite the significant health risk of voting in-person during the COVID-19 pandemic. First-time voters were also required to vote in-person, until a federal judge issued a preliminary injunction striking down the restriction. The court held that the state’s only compelling interest in enforcing that restriction is securing valid identification from the voter. Since absentee voting can accommodate identification verification and reduce the burden on voters, the court granted the plaintiffs a preliminary injunction so that first-time voters will be allowed to vote absentee this November, if they meet the narrow set of criteria to vote absentee.

While certainly a step in the right direction, this was the only win for voting rights from the Memphis A. Phillip Randolph Institute this summer. In the same suit, the group challenged Tennessee provisions including: criminal prohibitions on assisting voters to obtain absentee ballot requests; lack of opportunity to cure ballot rejections based on signature mismatches; and failure to make mail-in voting available to all voters.

On August 11, the court denied a preliminary injunction regarding the plaintiffs’ claims regarding a law qualifying unsolicited requests for absentee ballots as a misdemeanor. The court did not answer the question of the law’s constitutionality under the First and Fourteenth Amendments, but instead ruled that the claims misinterpreted the Tennessee law as prohibiting the state from sending absentee ballot forms rather than third parties sending forms.

On August 28, the court denied the plaintiffs’ due process claim against a Tennessee law that fails to notify voters if their ballots are rejected because of signature mismatches. The court held that the state’s signature matching law does not burden voters enough to warrant an infringement on their right to vote. Per the Anderson-Burdick test, the court weighed the burden against the state’s compelling interest to prevent fraud and held for Tennessee.

There is some good news for some Tennessee voters. The American Civil Liberties Union (ACLU) won a long legal battle in late August to allow COVID-19 excuse absentee voting for the general election. On August 25, the Tennessee Supreme Court held that the state must permit every eligible voter with an underlying health condition that makes them especially vulnerable to COVID-19 — and any voter who is a caretaker of such individuals — to vote by mail in all elections in 2020 due to the pandemic.

While this is an important victory, there is work left to do. Tennessee has a vary narrow set of criteria to qualify for absentee voting. With the addition of at-risk voters to the excuse list, that set of criteria expands to protect the medically vulnerable. But the Volunteer State has not gone far enough. Dale Ho, the ACLU’s Voting Rights Project director, argues Tennessee should implement no excuse absentee voting ahead of the November Election: “The Tennessee Supreme Court recognized that the state must not force medically vulnerable Tennesseans to vote in person during the highly contagious and deadly COVID-19 pandemic . . . [t]he court should have gone further, however, and ruled that all eligible voters have a right to vote safely by mail.” With less than 50 days until election day, it is important for the Tennessee state legislature to act swiftly to ensure voters can access the ballot without risking their lives.

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1 Comment

  1. Great write-up. I’d be interested to learn what the other 4 states without no-excuse absentee voting are facing, in terms of challenges/criticisms to their voting processes.

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