This story was updated at 9:54 p.m. on Thursday, July 30, 2020, with more information.
NASHVILLE, Tenn. (AP) — Tennessee officials are prepared to offer absentee ballots to voters who have health conditions or live with someone at risk for COVID-19, even if Tennessee's Supreme Court strikes down expanded mail voting in pandemic times, a state attorney said Thursday.
Janet Kleinfelter of the attorney general's office informed the justices of the state's changed stance on election safety plans, saying voters would have to make the determination individually of what constitutes an underlying condition. Attorneys for plaintiffs who are seeking universal mail-in voting said it was the first time they were hearing underlying conditions would qualify.
For now, an absentee voting option exists for all eligible voters for November through a court ruling last month, though the state contends the Supreme Court should wipe that option out. The court previously decided not to block the expansion for the Aug. 6 primary. Thursday marked the deadline to request a primary mail ballot.
Absentee ballot requests begin Aug. 5 for the November election.
The groups that sued, including the American Civil Liberties Union, have argued that without the expansion of mail voting, Tennessee would make many voters choose between risking their health at the polls or forgoing their constitutional right to vote.
Only a handful of states do not offer expanded absentee voting during the pandemic. Many have had absentee voting available for all voters for years. President Donald Trump has been the leading opponent of widespread mail voting.
Justices had a mix of questions and comments during Thursday's virtual hearing.
Chief Justice Jeffrey Bivins said plaintiffs want the Tennessee Supreme Court to be the only court nationwide to hold a constitutional right to absentee voting under the circumstances. Justice Holly Kirby said there's evidence of a "substantial burden" for the state to prepare for a big shift to widespread absentee voting. Then Kirby later asked, "Isn't it just another lawful way to vote?"
"The purpose of the election statutes explicitly in the language of the Legislature is to encourage maximum participation by all citizens in the electoral process," Kirby said. "Isn't that what we're talking about?"
Justices were particularly interested in underlying conditions.
Justice Roger Page noted that the state's election plan from April doesn't mention underlying health conditions as a COVID-19-related excuse. The document mentions someone "who is quarantined because of a potential exposure or who has tested positive."
In a June hearing, an attorney for the state noted the valid COVID-19 reasons included quarantining due to exposure or caretaking for someone exposed. When the judge asked if it was just those two reasons, the attorney said, "That's correct."
Additionally, the absentee voting application doesn't mention underlying conditions, Justice Sharon Lee noted.
"Voters have to sign under penalty of perjury, and they are not placed on notice right now that this entirely novel interpretation that we are hearing for the first time in oral argument today in fact exists," said plaintiffs attorney Steven Mulroy.
During questioning by Bivins, Kleinfelter said the state would instruct local counterparts to grant absentee ballots due to underlying conditions. She also noted that the state remains bound by the lower court's expansion.
The state has said the expansion is unfeasible for the 2020 election and touted offerings for in-person early voting with precautions, a period that ends Saturday for the primary. Kleinfelter also said there's no right to vote absentee.
"I don't know that there is a way for us to be able to eliminate the risk entirely," Kleinfelter said. "The same people are also going to the grocery store, and they're going to the hardware store, and they're going to restaurants."
Republican Secretary of State Tre Hargett's office has recommended preparations as though all registered voters 60 and older, a group of 1.4 million voters automatically eligible to vote absentee and more than a third of Tennessee's registered electorate, 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.
With the expansion, first-time voters can still only cast an absentee ballot if they show identification at a local election office. The requirement faces a separate federal lawsuit.