Judge orders Tennessee to mention coronavirus on mail voting form

NASHVILLE — A judge has ordered Tennessee election officials to clearly communicate on absentee ballot applications that people can vote by mail if they believe they or someone in their care face a higher risk of COVID-19.

State officials promised the Tennessee Supreme Court this month that they would inform voters about that eligibility, asserting for the first time that underlying health conditions could qualify someone to vote absentee under their plan. Days later, the justices overturned a vote-by-mail option for all eligible voters that Davidson County Chancellor Ellen Hobbs Lyle ordered in June.

In court, the state has described the process as an “honor system” in which voters decide individually if underlying conditions qualify them to vote by mail rather than risk infection at the polls. State lawyers told Lyle that voters can’t be charged with perjury for determining their condition makes them eligible.

But Lyle said the state isn’t being clear enough with the voters, despite the high court’s order to ensure voters are aware that underlying health conditions qualify a reason for eligibility to vote by mail. The absentee application doesn’t mention COVID-19.

“A prospective voter looking at the Form has absolutely no way of knowing that the Tennessee Supreme Court has held that if the voter determines for himself/herself that he/she has a ‘special vulnerability to COVID-19’ or is a ‘caretaker’ of such a person, he/she is eligible to vote via absentee ballot during the November election,” the judge ruled Tuesday.

The order gives the state until Aug. 31 to change the form, and until Sept. 1 to give county election officials corresponding guidance.

State officials had argued Lyle lacked authority to order the rewording, and said another change to the absentee application would confuse voters. The state also noted underlying conditions are now mentioned on its website and that it has sent out news releases to publicize the change, which requires voters to check existing boxes on the form for either illness or caretaking.

The ruling by Lyle would add wording to those existing boxes, describing “underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it.”

The issue brought the case back to Lyle’s virtual courtroom, where she and state attorneys butted heads multiple times over how to follow the voteby-mail expansion that she ordered, the state opposed and the Supreme Court ultimately overturned.

One significant point of contention was the state’s decision to make its own changes to the absentee application outside of her orders, prompting a sharp rebuke from Lyle and an order to change the form so that COVID19 wasn’t separated out from existing excuse categories.