Fisher v. Hargett

604 S.W.3d 381

Earle J. FISHER, et al.

v.Tre HARGETT, et al.

Benjamin Lay, et al.

v.Mark Goins, et al.

No. M2020-00831-SC-RDM-CV

No. M2020-00832-SC-RDM-CV

Supreme Court of Tennessee, AT NASHVILLE.

July 30, 2020 Session

FILED August 5, 2020

Cornelia A. Clark, J.

We assumed jurisdiction over these appeals¹ pursuant to Tennessee Code Annotated section 16-3-201(d)(1) (2009 & Supp. 2019) and Rule 48 of the Rules of the Tennessee Supreme Court and ordered expedited briefing and oral argument. The issue we must determine is whether the trial court properly issued a temporary injunction enjoining the State from enforcing its current construction of the eligibility requirements for absentee voting stated in Tennessee Code Annotated section 2-6-201(5)(C) and (D) (2014 & Supp. 2019). The injunction temporarily mandated the State to provide any eligible Tennessee voter, who applies to vote by mail in order to avoid transmission or contraction of COVID-19, an absentee ballot in upcoming elections during the pendency of pandemic circumstances. The injunction further mandated the State to implement the construction and application of Tennessee Code Annotated section 2-6-201(5)(C) and (D) that any qualified voter who determines it is impossible or unreasonable to vote in-person at a polling place due to the COVID-19 situation shall be eligible to check the box on the absentee ballot application that "the person is hospitalized, ill or physically disabled and because of such condition, the person is unable to appear at the person's polling place on election day; or the person is a caretaker of a hospitalized, ill or physically disabled person," and have that absentee voting request duly processed by the State in accordance with Tennessee law. At oral argument before this Court, the State conceded that, under its interpretation of Tennessee Code Annotated section 2-6-201(5)(C) and (D), persons who have underlying medical or health conditions which render them more susceptible to contracting COVID-19 or at greater risk should they contract it ("persons with special vulnerability to COVID-19"), as well as those who are caretakers for persons with special vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct the State to ensure that appropriate guidance, consistent with the State's acknowledged interpretation, is provided to Tennessee registered voters with respect to the eligibility of such persons to vote absentee by mail in advance of the November 2020 election.

With respect to those plaintiffs and persons who do not have special vulnerability to COVID-19 or who are not caretakers for persons with special vulnerability to COVID-19, we hold that the trial court erred in issuing the temporary injunction. Accordingly, we vacate the temporary injunction. Recognizing that absentee ballots already have been cast for the August 6, 2020 election consistent with the trial court's temporary injunction, and mindful of the goal of avoiding alterations to election rules on the eve of an election, the absentee ballots of all Tennessee registered voters who timely requested and submitted an absentee ballot by mail for the August 6, 2020 election pursuant to the trial court's temporary injunction and which absentee ballots otherwise meet the requirements of the absentee voting statutes shall be duly counted. These cases are remanded to the trial court for further proceedings consistent with this opinion.

This opinion is not subject to rehearing under Tennessee Rule of Appellate Procedure 39, and the Clerk is directed to certify this opinion as final and to immediately issue the mandate.

I. Factual and Procedural History

The State of Tennessee, like the entirety of the United States, is in the midst of an unprecedented public health crisis due to COVID-19. The Tennessee Attorney General recently described the situation faced by the State and the country:

The United States is in a public health crisis due to COVID-19. On January 31, 2020, the United States Department of Health and Human Services determined that, as of January 27, 2020, COVID-19 constituted a nationwide public health emergency. On March 11, 2020, the World Health Organization classified COVID-19 as a global pandemic. The pandemic remains ongoing and is currently surging.

Symptoms of COVID-19 can include fever, cough, shortness of breath, fatigue, loss of the senses of taste and smell, and body aches, among others. And the health effects of the disease can be severe, including serious damage to the lungs and other internal organs, and death. People with certain underlying health conditions and older adults have a heightened vulnerability to severe illness and death if they contract the virus.

As of July 16, 2020, at least 3,416,428 people in the United States have been infected with the virus and over 135,991 people have died from the disease that it causes. In Tennessee, there have been 68,441 confirmed cases, 3,434 hospitalizations, and 755 deaths since the first case was reported by the Tennessee Department of Health on March 5, 2020.²

COVID-19 is particularly dangerous not only because it results in severe illness, but also because it is easily and rapidly transmitted. The disease is believed to be transmitted through respiratory droplets produced by an infected person, close personal contact, or touching a surface with the virus on it. The virus spreads very easily through "community spread." While infected individuals are thought to be the most contagious when they are showing symptoms, asymptomatic individuals are also capable of spreading the virus, which makes response efforts particularly daunting.

Because there is currently no vaccine, cure, or proven effective treatment for COVID-19, the best way to prevent illness is to avoid being exposed to the virus. The Centers for Disease Control and Prevention ("CDC") recommends frequent hand washing, maintaining good social distance (at least [six] feet), routinely cleaning and disinfecting frequently touched surfaces, and covering mouth and nose with a cloth face covering when around others.

Op. Tenn. Att'y Gen. No. 20-14 at **1–2 (July 24, 2020) (internal citations and footnotes omitted). In his most recent executive order related to the COVID-19 pandemic, defendant Governor William Lee similarly recognized the continuing "threat to our citizens, our healthcare systems, and our economy" posed by COVID-19. 2019 Tenn. Exec. Order No. 55 at 1 (July 31, 2020).

In response to the COVID-19 pandemic, the Governor declared a state of emergency on March 12, 2020. As recently as July 31, 2020, the Governor declared that the state of emergency remains in effect. Id. The Governor additionally has continued to issue executive orders "designed to slow the spread of the disease and to protect the health of Tennessee residents." Op. Tenn. Att'y Gen. No. 20–14 at *2 (July 24, 2020) (footnote omitted).

In response to the COVID-19 pandemic, defendant Coordinator of Elections Mark Goins oversaw the Tennessee Division of Elections’ preparation and issuance of the April 23, 2020 Tennessee Election COVID-19 Contingency Plan (the "Plan"). The Plan contains numerous COVID-19 related measures delineating procedures for in-person voting for the August and November 2020 elections. The Plan anticipates an increase in those voters who choose to vote absentee by mail pursuant to Tennessee's absentee voting statute, Tennessee Code Annotated section 2-6-201.³ The Plan does not expressly provide, however, for any expansion of those persons who are eligible to vote absentee by mail pursuant to the statute.

Relevant to this appeal, the statutory qualifying reasons for voting absentee by mail include the following:

A registered voter in any of the following circumstances may vote absentee by mail in the procedures outlined in this part:

...

(5) Persons Over 60--Persons Hospitalized, Ill or Disabled. ...

(C) The person is hospitalized, ill or physically disabled, and because of such condition, the person is unable to appear at the person's polling place on election day; or

(D) The person is a caretaker of a hospitalized, ill or disabled person

Tenn. Code Ann. § 2-6-201(5)(C) and (D) (2014 & Supp. 2019). With respect to absentee voting by mail related to COVID-19, the Plan construes these pertinent statutory eligibility requirements for voting absentee by mail as limited to the following individuals: "A person who is quarantined because of a potential exposure or who has tested positive to COVID-19 should vote absentee by-mail as a person who is ill." Coordinator of Elections Goins explained in his declaration filed in the trial court that "[t]he statutory eligibility criteria do not include fear of becoming ill or of spreading COVID-19. A person who is quarantined because of a potential exposure or who has tested positive to COVID-19 should vote absentee by-mail as a person who is ill. "

On May 8, 2020, plaintiffs Reverend Earle J. Fisher, Julia Hiltonsmith, Jeff Bullard,⁴ Allison Donald, and #UptheVote901⁵ filed a complaint seeking injunctive and declaratory relief against, Tre Hargett, Secretary of State of Tennessee; Mark Goins, Coordinator of Elections; William Lee, Governor of the State of Tennessee; and Herbert H. Slatery III, Attorney General and Reporter, suing each in his official capacity for the State of Tennessee. The Fisher plaintiffs alleged that the individual plaintiffs are all registered Tennessee voters who wish to vote by mail in the August 2020 and November 2020 elections due to the COVID-19 pandemic but who do not satisfy the statutory eligibility requirements for absentee voting by mail set forth in Tennessee Code Annotated section 2-6-201. The Fisher plaintiffs alleged that Reverend Fisher wishes to vote by mail "because his appearing in person at a polling site would increase his personal risk of contracting or transmitting [COVID-19]...