Jackson Free Press

JACKSON, Miss. (AP) — Mississippi law does not allow absentee voting by all people who have health conditions that might make them vulnerable to COVID-19, the state Supreme Court ruled Friday.

A majority of justices reversed a Sept. 2 decision by Hinds County Chancery Judge Denise Owens, saying she too broadly interpreted some changes that legislators made to state law this year.

“Having a preexisting condition that puts a voter at a higher risk does not automatically create a temporary disability for absentee-voting purposes,” justices wrote.

Rob McDuff is a Mississippi Center for Justice attorney who sued the state on behalf of people with conditions including kidney disease and diabetes. He said Friday that the Supreme Court ruling does allow absentee voting by people with conditions that are serious enough to be considered a physical disability.

The Mississippi decision contrasts with one handed down Wednesday in a neighboring state, where a federal judge ruled that Louisiana must allow mail-in voting for people with conditions that the U.S. Centers for Disease Control and Prevention has listed as making people more vulnerable to COVID-19, their caretakers and three other groups.

Mississippi does not allow widespread early voting. Instead, state law says absentee voting is available to anyone 65 or older, or for voters of any age who are permanently disabled or will be out of their home county on Election Day. People who have to work on Election Day when polls are open also are allowed to vote absentee.

Legislators tweaked the law this year with provisions that expire at the end of 2020. Those allow absentee voting by someone with a temporary or permanent disability that may include “a physician-imposed quarantine due to COVID-19” or by a person who is “caring for a dependent that is under a physician-imposed quarantine due to COVID-19.”

People with health conditions that could make them vulnerable to the virus filed a lawsuit Aug. 11 in Hinds County Chancery Court. Their attorneys from the American Civil Liberties Union of Mississippi and the Mississippi Center for Justice argued any voter with a preexisting condition should be able to vote absentee because the state health officer, who is a physician, has advised that people with such conditions should avoid large public gatherings. The attorneys said such voters should not need individual quarantine orders from another physician, and Owens agreed.

Secretary of State Michael Watson, a Republican, appealed Owens’ order to the state Supreme Court.

Attorneys for Watson wrote in the appeal that the state law's “narrow absentee excuse does not stretch to voters without an underlying ‘physical disability’ just because they have a fear of contracting COVID-19 at the polls, or the voters are voluntarily following public health guidance.”

McDuff said Friday that in filings before the Supreme Court, Watson acknowledged that people with conditions that meet the definition of “physical disability” and that increase the risk of severe consequences from COVID-19 can vote absentee. McDuff said that includes four plaintiffs whose conditions include kidney disease, lupus, diabetes and severe asthma.

"The Mississippi Supreme Court never repudiated that statement by the secretary," McDuff said.

Other voting rights groups filed a similar lawsuit Aug. 27 in federal court, arguing Mississippi's absentee voting restrictions put people at risk amid the pandemic. They filed additional papers Thursday asking a judge to block two requirements — that a voter have absentee ballot forms notarized and that people have an excuse to vote absentee, such as being out of town on Election Day. Waiving the excuse would open absentee voting to many more people.

Most states allow early voting. Those that require an excuse for absentee voting are mostly in the South.

In Tennessee, a state court judge in June ordered that all eligible voters should have an absentee voting option during the health crisis, and that ruling was carried out during the Aug. 6 primary. The Tennessee Supreme Court overturned the absentee expansion last month, restoring the excuse-based absentee voting system and citing the state’s promise — made for the first time in front of the high court — that people can vote by mail if they believe they or someone in their care face a higher risk of contracting COVID-19 due to underlying health conditions.