Fisher v. Hargett, 080520 TNSC, M2020-00831-SC-RDM-CV

Docket Nº:M2020-00831-SC-RDM-CV, M2020-00832-SC-RDM-CV
Opinion Judge:CORNELIA A. CLARK, JUSTICE
Party Name:EARLE J. FISHER, ET AL. v. TRE HARGETT, ET AL. BENJAMIN LAY, ET AL. v. MARK GOINS, ET AL.
Attorney:Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Janet M. Kleinfelter, Deputy Attorney General; and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for the appellants, Mark Goins, Tre Hargett, William Lee, and Herbert H. Slatery...
Judge Panel:Cornelia A. Clark, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., Holly Kirby, and Roger A. Page, JJ., joined. Sharon G. Lee, J., filed a separate opinion concurring in part and dissenting in part. Sharon G. Lee, J., concurring in part and dissenting in part.
Case Date:August 05, 2020
Court:Supreme Court of Tennessee

EARLE J. FISHER, ET AL.

v.

TRE HARGETT, ET AL.

BENJAMIN LAY, ET AL.

v.

MARK GOINS, ET AL.

Nos. M2020-00831-SC-RDM-CV, M2020-00832-SC-RDM-CV

Supreme Court of Tennessee, Nashville

August 5, 2020

Session July 30, 2020

Appeal by Permission from the Chancery Court for Davidson County Nos. 20-0435-III, 20-0453-III Ellen Hobbs Lyle, Chancellor

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.

Tenn. Code Ann. § 16-3-201(d)(1) Appeal by Permission; Judgments of the Chancery Court Vacated and Cases Remanded

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Janet M. Kleinfelter, Deputy Attorney General; and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for the appellants, Mark Goins, Tre Hargett, William Lee, and Herbert H. Slatery III, each in his official capacity for the State of Tennessee.

Steven J. Mulroy and Jacob W. Brown, Memphis, Tennessee, for the appellees, Reverend Earle J. Fisher, Julia Hiltonsmith, Jeff Bullard, Allison Donald, and #UptheVote901.

Thomas H. Castelli, Nashville, Tennessee, Elizabeth Sitgreaves, Brentwood, Tennessee, Angel M. Liu, Chicago, Illinois, Dale E. Ho, Sophia Lin Lakin, Neil A. Steiner, New York, New York, and Gregory P. Luib, Washington, D.C. for the appellees, Benjamin William Lay, Carole Joy Greenawalt, and Sophia Luangrath.

William S. Consovoy, Cameron T. Norris, and Jordan M. Call, Arlington, Virginia, for the amicus curiae, Honest Elections Project.

Brian K. Kelsey, Chicago, Illinois and Sue L. Becker, Indianapolis, Indiana, for the amicus curiae, The Public Interest Legal Foundation.

Jason B. Torchinsky, Dennis W. Polio, Jonathan P. Lienhard, Warrenton, Virginia, and Justin N. Joy, Memphis, Tennessee, for the amicus curiae, The Republican National Committee and Tennessee Republican Party.

Danielle M. Lang, Ravi R. Doshi, Dana Paikowsky, Pooja Chaudhuri, Ezra D. Rosenberg, Washington, D.C. and William L. Harbison, Lisa K. Helton, Christopher C. Sabis, Christina R.B. López, Nashville, Tennessee, for the amici curiae, League of Women Voters of Tennessee, Tennessee State Conference of the NAACP, Memphis Central Labor Council, Memphis A. Philip Randolph Institute, The Equity Alliance, and Free Hearts.

Stephen J. Zralek, Nashville, Tennessee, and Debo P. Adegbile, New York, New York, for the amici curiae, David M. Aronoff, M.D., Nina Fefferman, Ph. D., James E.K. Hildreth, Sr., Ph. D., M.D., William Schaffner, M.D., Thomas Talbot, M.D., M. P.H, Edwin Trevathan, M.D., M.P.H., C. William Wester, M.D., M.P.H., Doctors and Professors Specializing in Epidemiology and Infectious Diseases.

Van D. Turner, Jr. and Bruce Turner, Memphis, Tennessee, for the amici curiae, The Tennessee Black Caucus of State Legislators, The Ben F. Jones Chapter of the National Bar Association, and the Tennessee Alliance of Black Lawyers.

Cornelia A. Clark, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., Holly Kirby, and Roger A. Page, JJ., joined. Sharon G. Lee, J., filed a separate opinion concurring in part and dissenting in part.

OPINION

CORNELIA A. CLARK, JUSTICE

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...

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