Labor Unions, NAACP File Federal Lawsuit Seeking Expanded Absentee Voting

Wednesday, May 13, 2020

Several groups, including labors unions and the NCAA, have filed a federal lawsuit seeking expanded absentee voting.

Plaintiffs include the Memphis A. Phillip Randolph Institute, The Equity Alliance, Free Hearts, The Memphis and West Tennessee AFL-CIO Central Labor Council a/k/a the Memphis Central Labor Council and The Tennessee State Conference of the NAACP.

Other plaintiffs are Sekou Franklin and Kendra Lee against Secretary of State Tre Hargett, state Elections Coordinator Mark Goins, and Amy Weirich, district attorney general for Shelby County.

It was filed in the Middle District of Tennessee.

The suit says, "On March 5, 2020, the State of Tennessee confirmed its first official case of COVID-19. Nearly two months later, the State has now reported 11,891 cases and 204 deaths from the pandemic disease. Tragically, the number of Tennesseans diagnosed with and dying from COVID-19 continues to increase daily. Social distancing guidelines have been implemented and encouraged by federal, state, and local governments in order to slow the spread of the deadly disease, and the State, echoing the Centers for Disease Control and Prevention, continues to advise citizens that “the best way to prevent illness (from COVID-19) is to avoid being exposed to this virus.”

"This is particularly true for those who are elderly or who have underlying health conditions, regardless of age, which place them at increased risk of potentially lethal complications from the disease.

"In the midst of this public health crisis, Tennesseans will twice cast ballots in exercise of their fundamental right to vote: first on August 6, 2020, in the statewide primary election, and then again on November 3, 2020, in the presidential general election."

"In prior elections, Tennesseans have typically cast their ballots in person. In the upcoming elections, however, state and local elections officials expect that, in light of the ongoing pandemic, a significantly increased number of voters will seek to vote by mail in order to avoid exposure to this potentially lethal disease. For example, in some counties, like the State’s second most populous Davidson County, officials expect a more than ten fold increase in the number of absentee voters in upcoming elections.

"This makes good sense. For most voters, absentee voting—if available as an option—is a safe, socially-distanced method of exercising their fundamental right. Indeed, the CDC’s first recommendation for election officials in the midst of this pandemic is to 'encourage mail-in methods of voting.'

"While historic, this rapid shift towards voting by mail has also revealed Tennessee’s election laws to be underprepared for the unprecedented task of holding an election during a pandemic in at least three ways: (1) the State’s strict limits on eligibility for voting absentee, which do not recognize the pandemic as a valid excuse, impose an undue burden on prospective voters who must now choose between risking their health by voting in person, or forgoing their right to vote entirely; (2) criminal prohibitions on assisting voters in obtaining absentee ballot requests will have a chilling effect on the protected speech and associational activities of individuals and groups engaged in voter turnout activities during the upcoming elections, particularly considering that many voters will be navigating the absentee voting process for the first time; and (3) the lack of opportunity to cure afforded to absentee voters whose ballots are rejected based on faulty signature match procedures stands to disenfranchise even those voters who are able to cast their ballot by mail. These restrictions severely burden Tennesseans’ exercise of their right to vote and Organizational Plaintiffs’ right to participate in voter engagement activity. 

"First, in light of the ongoing public health crisis, Tennessee’s failure to make the already-existing mail voting system available to all voters so that they do not have to choose between their right to vote and their health imposes an undue burden on Tennesseans’ exercise of their right to vote.

"Under State law, eligible mail-in voters will be able to cast their ballots without waiting in line at their polling place, or interacting with fellow voters, poll workers, and voting equipment, thereby minimizing their risk of contracting or spreading COVID-19 while voting. Furthermore, by exercising their option to vote by mail, these voters can help reduce crowding, lines, and traffic through polling places, which can help minimize exposure for voters and poll workers, and reduce the risk of voting in person for those who are unable to vote by mail. This is particularly true for voters whose options for in-person voting are further limited due to polling place closures and consolidations, which Tennessee’s most populous counties are already anticipating as a result of the ongoing pandemic. 

"But the option to vote by mail safely is not available to most Tennessee voters, because the State limits absentee voting to only those who are eligible to do so under one of the State’s few narrowly drawn excuses, none of which account for voting during a public health crisis. See Tenn. Code § 2-6-201 (the “Eligibility Criteria”). Thus, for voters like Plaintiff Kendra Lee, who is at an increased risk from COVID-19 due to an underlying health condition but is not eligible to vote by mail, the only available choice will be either to vote in person at a potentially crowded in-person polling location or to not vote at all. The same will be true for Plaintiff Sekou Franklin, who is not eligible to vote by mail, but also fears voting in person in the August and November elections because he does not want to catch and then bring COVID-19 back to his elderly father, who is at an increased risk from the disease. 

"Requiring voters like individual Plaintiffs, Organizational Plaintiffs’ members, and their families, to choose between risking their health and safety to vote in person or to not vote at all is not just unfair, it is also unconstitutional. Simply put, the Constitution does not permit the State to require voters to jeopardize their health and safety, and the health and safety of their loved ones, in order to exercise their fundamental right to vote. Tennessee voters must be permitted to cast their ballots without subjecting themselves to unnecessary exposure to a pandemic disease. Defendants must either be enjoined from enforcing, or otherwise required to expand, the Eligibility Criteria for absentee voting while pandemic conditions continue to threaten voters’ health. 

"Second, the Constitution precludes the State from imposing criminal penalties on individuals and entities, like Organizational Plaintiffs and their members, who seek to engage in protected speech and associational activity by helping their members, their members’ families, and voters in their community, apply for an absentee ballot. But that is exactly what Tennessee law currently does.

"Even under the narrow eligibility criteria for absentee voting, county officials expect that thousands of voters—particularly older voters—will seek to vote by mail for the first time in this year’s elections. These voters will need assistance navigating an absentee ballot application system that they have never used before, including understanding that they have a right to vote absentee and actually obtaining and completing their absentee ballot request (in advance of the impending July 30 and October 27, 2020, deadlines for the August 6 and November 3, 2020, elections). As such, the Organizational Plaintiffs intend to focus more heavily on outreach to and engagement of potential absentee voters as part of their political and voter engagement work this cycle. 

"Under Tennessee Code § 2-6-202(c)(4), however, “[a] person who is not an employee of an election commission commits a Class A misdemeanor if such person gives an unsolicited request for application for absentee ballot to any person.” If convicted, they could face a sentence of up to 11 months and 29 days in prison, a fine of up to $2,500, or both. 

"As a result of this law, the Organizational Plaintiffs will be severely hampered in their ability to assist their members and engaged voters with obtaining the absentee ballot request they need to exercise their right to vote by mail in the upcoming elections. The restriction on the unsolicited distribution of absentee ballot requests—which will be a particularly necessary voter engagement tactic in light of the COVID-19 pandemic—chills protected speech and associational activity, harms Tennessee voters, and unconstitutionally burdens the Organizational Plaintiffs’ right to engage in core political speech and activity, in violation of the First and Fourteenth Amendments."

The plaintiffs are requesting a federal judge to:

Declare that Defendants’ application of § 2-6-201 of the Tennessee Code in the context of the pandemic to exclude voters from casting absentee ballots in the August and November 2020 elections unless they meet the Eligibility Criteria is unconstitutional;

B. Declare that Defendants’ enforcement of § 2-6-202(c)(4) of the Tennessee Code is unconstitutional;

C. Declare that Defendants’ failure to provide an opportunity for voters to cure signature-related deficiencies in absentee ballots before they are rejected is unconstitutional;

D. Declare that the combination of burdens Tennessee imposes on absentee voters before their absentee ballots can be counted is unconstitutional in the context of the pandemic;

E. Preliminarily and permanently enjoin Defendants from excluding any eligible voter from casting an absentee ballot in the August and November 2020 elections, whether or not the voter meets the Eligibility Criteria of § 2-6-201 of the Tennessee Code for the duration of the pandemic;

F. Preliminarily and permanently enjoin Defendants from enforcing § 2-6-202(c)(4) for the unsolicited dissemination of requests for application for absentee ballots by any person;

G. Preliminarily and permanently enjoin Defendants from rejecting absentee ballots on the basis of alleged signature-related deficiencies without first providing an opportunity to cure;

H. Preliminarily and permanently order Defendants to establish a procedure by which voters may attempt to cure deficiencies in their absentee ballots, to include providing timely notice of such deficiencies and a meaningful opportunity to cure."

 

 


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