What You Need To Know About The TN Absentee Voting Fight
By Prof. Steve Mulroy,
This November we’ll see record numbers of voting by mail--nationally, in Tennessee, and in Shelby County. The good news is that almost anyone who wants to vote by mail here can do so. The bad news is that is in spite of, not because of, your state and county election officials. The bottom line: if you’re medically vulnerable to COVID, vote absentee, but do it NOW—don’t wait.
[Mail voting has risen dramatically in recent years. In 2018, over 25% of all voters in the U.S. voted by mail. That’s expected to double this year because of the pandemic. Here in Tennessee, the absentee voting rate rose sixfold from about 2% to about 12% in the August election. ]
[Thirty-four states allow any voter to choose to vote absentee. Five of those states automatically mail all voters a ballot, without them having to ask; virtually all voters in those 5 states vote by mail. Both these “No Excuse” absentee states and these automatic “Vote By Mail” states include Red and Blue states.]
“Mail voting has risen dramatically in recent years. In 2018, over 25% of all voters in the U.S. voted by mail. That’s expected to double this year because of the pandemic. Here in Tennessee, the absentee voting rate rose sixfold from about 2% to about 12% in the August election. ”
Of the 16 states which still require an excuse to vote absentee, all but 4 relaxed that requirement this spring or early summer due to the pandemic. Our state was one of the 4 which insisted on people voting in person. Unsurprising, from the folks who gave us a strict voter photo ID law which allows gun IDs but not student IDs, and which recently passed a law (later struck down) imposing harsh criminal penalties on paid voter registration efforts.
Back in early May, we sued the State over their recalcitrance, seeking expedited relief due to the impending August election deadlines. Attorneys Jake Brown and Bruce Kramer and I represented the local organization UpTheVote 901 and various individual Memphis voters. A Davidson County Chancery Court ruled that all Tennessee voters had the choice to vote absentee during the pandemic, a rule which applied through the August election. The Tennessee Supreme Court later cut back on that ruling for November, deciding that only (1) persons with underlying medical conditions making them especially vulnerable to COVID, (2) caretakers of such persons, or (3) voters living with such persons, could vote absentee. Each voter decides for him/herself—you don’t need a doctor’s note. That’s the rule today.
Thankfully, it’s not that different from the trial court’s original order, as a practical matter. The CDC’s list of underlying conditions (available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html ) includes common conditions like asthma, hypertension, diabetes, obesity, and smoking. Add up all that, plus their caretakers, and folks living with them, and we estimate that well over 2/3 of Tennessee voters can decide to vote by mail or in person.
[The State fought us every step of the way, arguing that they needed to force people to vote in person during a once-in-a-century pandemic to prevent fraud, and to prevent undue fiscal and administrative burdens. It presented no evidence of actual fraud; even their own election administration expert said publicly that mail voting fraud was not a real concern.]
[On the “administrative burden” point, the State implausibly insisted it would have to be ready to provide mail ballots based on 100% voter turnout, and a 100% absentee ballot request rate—an event which has never occurred once in Tennessee history. Again, using their own election expert’s methodology, we estimated that the need wouldn’t exceed about 30% of all voters—a figure the state was already prepared to deal with based on its own pandemic preparations.]
[But the vote suppression efforts didn’t stop there. After the trial court ordered universal absentee voting in June, the state and its county election officials repeatedly violated the court’s order, causing the trial court to say “Shame on you—I’m calling the state out” (a direct quote) during a contempt of court hearing. After the Supreme Court ordered the state to issue voters “appropriate guidance” making clear the new rules for November (items (1) through (3) above), the State refused to put that information on the absentee application itself. It took two court battles and two trial court orders to make it right.]
Again, if you are medically vulnerable, or live with someone who is, you should consider absentee voting. It’s a reliable way to vote—IF you act soon. The slowdown in the mail is a real concern. Fortunately, a federal court recently ordered USPS to undo the changes recently made causing the slowdown, and to prioritize all election-related mail.
Even so, if you want to vote by mail, apply NOW at https://www.shelbyvote.com/sites/default/files/documents/Absentee%20Request%20General%20Revision%20as%20of%209%2028%20.pdf . Do not wait. Email your application—don’t mail it in. Shelby County is caught up with ballot requests, and should mail your ballot out within a day or two of receiving a request.
Once you get your absentee ballot, fill it out and mail it back IMMEDIATELY. (Unfortunately, while you can email your absentee application, you can only mail in your ballot. Unlike many other states, Tennessee does not allow you to drop off your ballot.) If you mail it back by Oct. 20 to Bartlett P.O. Box on the instructions, you should be ok. After that, I’d suggest Fed Exing it to the Election Commission’s physical address, 980 Nixon Rd 38134. Be sure to fill in all required info (SSN, DOB, etc.), and to sign and date both the ballot and the outer envelope.
When this is all over, we should ask our state lawmakers to move to No Excuse absentee voting, and to allow voters to drop off their ballots either at the election commission or in secure dropboxes at central locations, as so many states do. Voting should be easy, not an obstacle course---or a superspreader event.
Steve Mulroy is a former Shelby County Commission, a University of Memphis law professor who teaches voting rights, and the author of Rethinking US Election Law.