State wants absentee voting lawsuit tossed
NASHVILLE - Advocates, who filed a federal lawsuit to allow voting by mail because of the COVID-19 pandemic but then later voted in person in the August primary, may have invalidated a health concern cited as the basis for the lawsuit.
Access to voting in Tennessee during the COVID-19 pandemic is the focus of lawsuits at the local and federal level. Groups, including voting rights advocates who sought to shift requirements on first-time voters in the state, filed a federal lawsuit in May.
The state is asking the federal judge to dismiss the lawsuit. The plaintiffs say nothing has changed.
U.S. District Judge Eli Richardson in July said he would not block three Tennessee laws dealing with absentee voting ahead of the primary election, saying the groups that sought the action should have requested it earlier. He has yet to rule on the question for November.
Primary showed in-person voting viable
Representatives of Memphis A. Phillip Randolph Institute, the Equity Alliance, Free Hearts, the Tennessee State Conference of the NAACP, the Memphis and West Tennessee AFL-CIO Central Labor Council and two named voters, Sekou Franklin and Kendra Lee, filed the suit.
They argue the potential threat of COVID-19 spreading from people voting in person placed an undue burden on voters.
The lawsuit says the burden is too high on some voters, including those who need to present ID in person or those who are first time voters. Those Tennesseans would not be able to get absentee ballots, requiring them to choose not to vote or to vote in person, risking their health, the suit said.
However the Secretary of State, the Elections Coordinator and the Shelby County District Attorney General argued that although voting is a fundamental right, the method of doing so is not.
The question of COVID-19 concerns being a legitimate medical condition that would allow Tennesseans to vote by mail is the subject of a separate, ongoing lawsuit in Davidson County Chancery Court.
Last week, the state Supreme Court overturned an injunction issued by the lower court allowing fear of the virus' spread to be a reason to apply for the primary.
The argument that the threat of the deadly virus was too high a burden on voters was a thread in both suits — and some plaintiffs in both decided, still, to vote in person.
Lee, the voter protection director for the Tennessee Democratic Party, and other plaintiffs had argued that underlying health conditions during a pandemic should warrant absentee ballot voting.
"Because Ms. Lee has asthma and bronchitis," the federal complaint read, "she cannot safely vote in person because in so doing, she would potentially expose herself to the risk of serious complications from COVID-19. If forced to choose between voting in person or not at all this Fall, Ms. Lee will likely choose not voting — despite her desire to do so — in order to protect her health and safety."
But Lee voted in person during the early voting period.
In an interview last week, Lee said she did so because she didn't have faith in the state or Shelby County Election Commission to properly handle an absentee ballot request after hearing from others who reported ballots that were delayed or never arrived.
"As much as I want to be safe when I am voting, I also want to secure my vote, as well," Lee said. "I just didn't want to run the risk of happening to me what's been happening to other people in the county and in the state. That really was the deciding factor for me."
A plaintiff in the Davidson County case, Earle Fisher, also voted in person during early voting but said he didn't believe the actions of one person were the focus of the suit.
"We weren't filing the lawsuit simply thinking about our individual selves," Fisher said in an interview last week. "We filed a lawsuit on behalf a very broad group of citizens who needed as much access as possible."
Fisher, noting he suffers from hypertension, said safety precautions in place at the voting sites "didn't alleviate the risk" and he was still concerned going in-person. But he was curious about what protocols were being implemented.
He maintains the purpose of the lawsuit is to ensure that anyone, regardless of their situation, has the opportunity to vote safely.
Suit rests on plaintiffs' ability to vote
State attorneys now argue that Lee's decision to vote in person removes her legitimacy as a plaintiff to a degree that undermines the entire federal suit.
Motions to dismiss are common in lawsuits of this type, and the state's argument echoes previous motions in the suitbolstered by the events around the recent primary.
"Plaintiffs here have no injury because no one has been deprived of the right to vote,
and Plaintiffs' alleged burden is not “fairly traceable” to any “conduct of the defendant[s].” Indeed, notwithstanding her allegation that she “cannot safely vote in person,” Plaintiff Kendra Lee did precisely that in the August primary election," the state argued.
The state also argues that because fellow plaintiff Franklin was able to cast her ballot by mail, which Election Coordinator Mark Goins attested to, her rights were not invalidated by the ID laws and she, too, is not a legitimate plaintiff.
But the plaintiffs have repeatedly argued that the plaintiffs include organizations representing hundreds or thousands of voters who may be affected by the laws, which gives them standing to bring the suit.
"The plaintiffs do have standing to bring this lawsuit," said Ravi Doshi, Campaign Legal Center Senior Legal Counsel, Voting Rights, on Tuesday. "We believe the court will bring relief, and that all Tennesseans who vote by mail this fall will have confidence that their vote will be counted.
If the court finds in favor of the state's argument, the suit could be closed before Richardson rules on November absentee ballots. The question remains whether the judge believes the suit can stand on the basis of other plaintiffs for other voters who may be in the same situation.
The motion to dismiss was filed Monday. The plaintiffs had not filed a response to the motion as of Tuesday morning.
Both the Attorney General's and Secretary of State's offices declined to comment Tuesday, citing the pending litigation.
Natalie Allison contributed.
Reach reporter Mariah Timms at mtimms@tennessean.com.