Judge: Tennessee not in contempt for new voter by-mail limit

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(AP Photo/Rick Bowmer, File)

NASHVILLE, Tenn. (AP) — A judge ruled Tuesday that state officials are not in contempt of court because they keep enforcing a Tennessee law barring many first-time voters from casting absentee ballots, despite her decision that all eligible voters can vote by mail during the coronavirus pandemic.

That’s because the voting rights groups that sued for the absentee expansion did not explicitly ask her to block the separate law, which requires voters who register by mail to appear in person during their first election, according to Davidson County Chancellor Ellen Hobbs Lyle. For the same reason, she didn’t specifically address the requirement in her ruling early last month, Lyle continued.

Lyle allowed the groups to request to amend her ruling that has temporarily expanded by-mail voting, but cautioned not to interpret that as a decision whether or not those voters are eligible under her ruling.

She said it’s “not a foregone conclusion procedurally, and is not just a formality, but is substantive, and the Defendants would be provided a full opportunity to respond.”

Meanwhile, time is running short for a change to occur before the July 30 deadline to request an absentee ballot for the Aug. 6 primary election. The first-time voter requirement is also being challenged in federal court.

Late Monday, the American Civil Liberties Union and others argued Tennessee officials should be held in contempt for enforcing the requirement, which only allows those first-time voters to cast an absentee ballot if they show ID at a local election office. The groups wrote that “nothing in the Injunction Order carved out an exception for first-time voters who registered by mail or who registered online.”

In response Tuesday, the state called the motion “nothing more than a back-door attempt” to get a change that “was never requested in their amended complaint, that none of the Plaintiffs are entitled to, and more importantly, that was never ordered by this Court.”

The voting rights groups said the number of voters affected is “substantial,” with more than 144,000 new registrations in the last half of 2019.

In the separate federal lawsuit, the state said in late June that it and county officials “have relied on and acted according to the expectation that” the requirement “would apply as usual in the upcoming elections.”

The state also wrote that the requirement aligns with federal law that addresses how first-time voters who register by mail must provide identification.

The voting rights groups addressed that argument Monday, writing that Tennessee already requires a voter’s Social Security number on mail-in registration forms. Tennessee must use that to verify voter information where possible under federal law, which permits, but doesn’t require, states to mandate that first-time voters who register by mail vote in person, the filing states.

The week after the expansion was ordered last month, the judge ruled the state had not followed her order when it decided to reword its absentee voting applications on its own and hold off on sending absentee applications related to COVID-19 for hours after the initial ruling.

The state reworked the form and sent local officials updated guidance based on the judge’s new orders.

Last week, Elections Coordinator Mark Goins wrote in a court-required filing that all 95 counties have updated their websites or written materials to reflect the expansion of absentee eligibility.

That followed the judge’s order last month for Goins to tell counties to update their information because plaintiffs attorneys named 20 counties with absentee request forms or other website mentions that didn’t correctly reference COVID-19 as a reason to vote absentee. Those 20 counties displayed updated websites shortly after.

Tennessee election officials have opposed and appealed the expansion of absentee eligibility, arguing it is unfeasible for the 2020 elections and citing some issues experienced in other states.

Instead, they had recommended preparations as though all registered voters 60 and older, a group of 1.4 million voters automatically eligible to vote absentee, will cast mail-in ballots in the primary. Historically, Tennessee has seen less than 2.5% of votes cast by mail, according to the state.

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