Tennessee Supreme Court Vacates Temporary Injunction, Leaving In Place State’s Revised Interpretation Of Law Limiting Absentee Voting In Elections After August 6, 2020 Election

August 5, 2020

Today, the Tennessee Supreme Court vacated the temporary injunction entered by the Davidson County Chancery Court, which, in part, required the State to provide an absentee ballot to any eligible voter validly seeking to vote by mail to avoid transmission or contraction of COVID-19 for all elections occurring during the ongoing global COVID-19 pandemic.  The Court held, however, that the absentee ballots for the August 6, 2020 election should be counted as to Tennessee voters who timely voted by absentee ballot by mail according to the trial court’s temporary injunction and who otherwise meet the statutory requirements for absentee voting.

This decision stems from two cases involving plaintiffs who alleged the State’s interpretation of a law describing who may vote by absentee ballot in Tennessee burdens their constitutional right to vote during the COVID-19 pandemic.  The trial court determined that the plaintiffs were likely to succeed on their claims and entered a temporary injunction that ordered the State to provide an absentee ballot to any eligible voter validly seeking to vote by mail in order to avoid transmission or contraction of COVID-19 so long as pandemic circumstances continue.  The trial court allowed the State to challenge the validity of the injunction by an interlocutory appeal to the Court of Appeals.  On June 24, 2020, the Supreme Court granted the State’s motions to assume jurisdiction over the State’s appeals but denied the State’s motions to stay the temporary injunction pending resolution on appeal.  The Court heard oral arguments in the cases on an expedited schedule on July 30, 2020.

At oral argument, the State conceded that, under the State’s interpretation of the Tennessee statute at issue, individuals with a special vulnerability to COVID-19, as defined in the opinion, or caretakers for individuals with a special vulnerability to COVID-19 already satisfy the statutory requirements for eligibility to vote by absentee ballot. 

In the Supreme Court’s majority opinion authored by Justice Cornelia A. Clark, the Court held that, under the State’s interpretation at oral argument as to persons having a special vulnerability to COVID-19 as well as the caretakers of such persons, injunctive relief was not necessary because the State identified them as already qualifying under Tennessee law for absentee voting.  As to persons who do not have a special vulnerability to COVID-19 or are not caretakers for such persons, the Court held that the State’s interests in the efficacy and integrity of the election process sufficiently justified the moderate burden that the laws limiting absentee voting placed on the right to vote of such individuals.  Therefore, the Court held that these individuals were not likely to prevail on the merits of their underlying claims and that, accordingly, the trial court erred in granting its temporary injunction.  The Supreme Court’s majority opinion vacated the trial court’s temporary injunction. Because absentee ballots already have been cast for the August 6, 2020 election and because courts avoid changing election rules on the eve of an election, the Court held that the ballots shall be counted as to all Tennessee voters who timely voted by absentee ballot for the August 2020 election under the trial court’s temporary injunction and who otherwise meet the statutory requirements for absentee voting.

Justice Sharon G. Lee filed a separate opinion concurring in part and dissenting in part.  Justice Lee agrees that the temporary injunction is not necessary as to persons having a special vulnerability to COVID-19 or to the caretakers of such persons, given the State’s interpretation of these persons already qualifying for absentee voting under Tennessee law.   Additionally, Justice Lee agrees with the presumption of constitutionality of the relevant statutes on absentee voting, the applicable standard of review, and the moderate burden on the right to vote of persons without a special vulnerability to COVID-19 or those who are not caretakers of such persons.  Justice Lee determined, however, that the State failed to establish that its financial or administrative interests, as well as its interest in preventing voter fraud, sufficiently justified the moderate burden on the fundamental right to vote of persons without a special vulnerability to COVID-19 or those who are not caretakers of such persons.  Accordingly, Justice Lee determined that the trial court did not abuse its discretion in issuing a temporary injunction protecting the constitutional rights of all eligible voters during this pandemic.

To read the Supreme Court’s majority opinion, authored by Justice Cornelia A. Clark, and the concurring and dissenting opinion, authored by Justice Sharon G. Lee, in Earle J. Fisher, et al. v. Tre Hargett, et al., and Benjamin Lay, et al. v. Mark Goins, et al., go to the opinions section of TNCourts.gov.