The Tennessee Supreme Court hears oral arguments via Zoom on Earle J. Fisher et al v. Tre Hargett et al and Benjamin Lay et al. v. Mark Goins et al on Thursday, July 30, 2020.
(The Center Square) – Tennessee’s Supreme Court heard oral arguments Thursday on whether fear of contracting the coronavirus at a polling location constitutes an excuse to be able to vote by mail.
State law already provides for absentee voting in 14 different scenarios, including hospitalization, illness, and physical disability. Caretakers of the ill, hospitalized, and disabled, voters aged 60 or older, and residents of nursing homes and assisted living facilities are also already allowed to vote by mail.
Last month, a Nashville judge ordered that the state must provide all eligible voters with absentee ballots for 2020 primary and general elections if they determine that it is impossible or unreasonable to vote in-person due to the COVID-19 pandemic.
The state appealed the court’s decision to the Tennessee Supreme Court.
“Voting is a necessity – it’s a participatory democracy – and the question before us is, do we need to facilitate absentee ballot voting under these unique circumstances,” Justice Holly Kirby said at the conclusion of the hearing, which lasted just over an hour.
Attorney Janet Kleinfelter of the Tennessee Attorney General’s office, who represents the state, argued that the case centers on the definition of illness.
“The only question is what does the word ‘ill’ mean?” Kleinfelter said. “The state has construed ‘ill’ to include someone who has been diagnosed with COVID-19 or has tested positive for COVID-19, or someone who has been exposed to someone with COVID-19. That is reflected in the state’s election plan.”
“What it doesn’t mean is the fear of contracting COVID-19, or the fear of being exposed to someone with a disease,” Kleinfelter said in response to a question from Justice Sharon Lee.
Both attorneys for the plaintiffs argued that allowing voters to cast ballots by mail is necessary for Tennesseans to exercise their constitutional right to vote.
“This isn’t about the right to vote absentee, we’re asking for the right to vote at all during the unprecedented pandemic,” plaintiff attorney Angela Liu argued. “Since anyone can contract COVID-19 and anyone can suffer serious illness or death from it – even without underlying conditions – everyone faces the unconscionable choice between health risks and voting, unless all voters are permitted to vote by mail.”
“This case raises the important question of whether the Tennessee Constitution’s right to vote… also encompasses the right to vote safely, or whether it’s the case that the state can force voters to choose between their franchise, and their health,” argued Steve Mullroy, an attorney for the Fischer plaintiffs.
Kleinfelter highlighted the extensive precautionary measures the state has implemented in coordination with election commissions to ensure safety of voters at the polls.
“Your honor, respectfully, I don’t know that there is a way for us to eliminate the risk entirely,” Kleinfelter said. “Those same people are going to the grocery store, they’re going to the hardware store, and they’re going to restaurants.”
There is no set timeline for a decision to be made by the Supreme Court, however, the court is expected to move quickly due to the time sensitive nature of the case.
“This is an incredibly important case for all Tennesseans,” Chief Justice Jeff Bivens said.
In-person early voting ends on Saturday, Aug. 1. Thursday, July 30, is the last day to request an absentee ballot to vote in the August 6 election in Tennessee.