As states make voting easier during the pandemic, Tennessee is moving in the other direction

A recent Tennessee Supreme Court decision ruled that the state does not need to further expand access to mail-in voting, overturning a lower court ruling that would have allowed all eligible voters to vote via absentee ballots due to the coronavirus pandemic.

In the same month, Tennessee passed a law that would charge protesters camping on state property with a felony, which would cause those convicted of the felony to lose their right to vote.

"I have not seen another state do another version of 'Oh my god, I'm losing the chess game, throw the board over and completely reset it,'" said Jessica Levinson, a Loyola Law School professor who focuses on election law. "I have not seen another state step onto the dance floor with this aggression."

The state's justification for refusing to expand voting by mail during the pandemic was voter fraud and that it's not "fiscally nor logistically feasible." Tennessee Republican House Majority Leader William Lamberth said the criminal justice bill was designed to crack "down on criminal elements out there that unfortunately are making it very difficult for folks to even visit this capitol."

State Supreme Court ruling

In a critical Tennessee Supreme Court ruling earlier this month, the court ruled that the state did not have to expand absentee voting to anyone concerned about contracting coronavirus, but said the state's decision to allow those who are at higher risk of contracting the virus to vote absentee was sufficient.

Several states have expanded absentee voting in the past few months to allow people who are concerned about contracting Covid-19 by voting in person to instead vote-by-mail. Tennessee is one of six states that still requires an excuse in order to cast a ballot by mail this fall.

"I'm still naïve enough to be surprised by court decisions that would make it more difficult to vote in a pandemic that will certainly have killed hundreds of thousands of people by the time we vote," Levinson said as the US surpasses 180,000 deaths due to the pandemic.

While Tennessee will allow those who consider themselves at a higher risk of contracting the virus to vote absentee, they have not included that language on the state's absentee ballot application. Instead, they added language informing voters to report voter fraud if they see or know of any, offering a $1,000 reward if their tip results in a conviction.

"That in itself is an intimidating statement to put on an application, especially when we know that voter fraud is so rare and not happening," Weinberg said.

There is not widespread voter fraud in US elections, and nonpartisan experts say neither party automatically benefits when states expand access to mail-in voting.

New law makes camping on state property a felony

The Tennessee governor signed a new law last week that makes it a class E felony to camp on state property, increasing the punishment for the offense. If you are convicted with a felony in Tennessee, you lose the right to vote.

Over the past two months, protesters have been camping out at the Tennessee state capitol grounds in response to George Floyd's murder at the hands of police in June, according to American Civil Liberties Union Tennessee executive director Hedy Weinberg.

"It is to prevent what has happened in other cities like Portland and Washington, DC," Tennessee Lieutenant Governor and Speaker of the Senate Randy McNally said at a news conference after the measure passed. "If people knowingly violate the law, knowingly thumb their nose at authority and don't do what authorities have requested they do, they should be charged with a serious crime."

The bill's sponsor, Lamberth, said at the same news conference that the bill was to crack down on "criminal elements" and protect law enforcement officers.

"To do that, to pass that law, six weeks before a national presidential election, when folks have been out camping and protesting for two months, again raises the specter of why are you passing a law in Tennessee that clearly will disenfranchise people were they convicted," Weinberg said.

A class E felony is the lowest level of felony in the state, but anyone convicted of a felony in Tennessee loses the right to vote, Weinberg added.

While the state Supreme Court decision ultimately impacts more voters, the criminal justice law targets a specific group of people, according to Levinson.

"Tennessee has this law that looks neutral on its face. You want to punish protesters who harm state property. That on its own sounds like it has absolutely nothing to do with the election, and it will be a felony, and therefore you cannot vote, and therefore you cannot vote in the election as a felon," Levinson said. "This is not imagining it. It is a way to target certain people and make sure they can't vote, which is an incredibly effective way of trying to pre-determine outcomes."

CORRECTION: This story has been updated to correct Jessica Levinson's affiliation.