01 Sep MCJ Argues At Court Hearing That Mississippi Voters Have The Right To Vote Absentee During The COVID-19 Pandemic

On Friday, August 28, MCJ brought its case regarding absentee voting during the COVID-19 pandemic to a socially distanced courtroom in the Hinds County Chancery Courthouse, where we contended that Mississippi’s absentee ballot law should be interpreted to give voters the choice of voting absentee on November 3 in order to follow public health guidelines to avoid community events.   Although no ruling was issued that day, we expect one very soon.

We filed the case along with the ACLU Foundation and the ACLU of Mississippi on August 11.   The day before the hearing, August 28, we submitted a comprehensive legal memorandum and 19 supporting exhibits.  The hearing itself was held before Judge Denise Owens.  Our case was presented in court by Rob McDuff who is the Director of MCJ’s George Riley Impact Litigation Project.

In our legal brief and during the hearing, we contended that voters should be able to follow public health guidance without surrendering the right to vote.  The Mississippi Department of Health (MDH) states that people “with a chronic illness such as heart disease, diabetes, or lung disease” and people who otherwise are “in poor health” are at a higher risk for severe consequences from COVID-19 should “stay home as much as possible.”  The U.S. Centers for Disease Control (CDC) has also directed those at a higher risk of COVID-19 to “[l]imit [their] interactions with other people as much as possible.”  Moreover, MDH advises that all people, including those without such conditions, must “[a]void large social gatherings and community events” and “[f]ollow restrictions on indoor and outdoor gathering sizes.”  These restrictions prevent attendance at indoor gatherings where more than ten people are present.  Many polling places have more than ten people present during much of the day.

Our clients in the case are Harriett Oppenheim, who has Lupus, has had a kidney transplant, and has chronic kidney disease; Mary Harwell, who has diabetes and lives in a household with her autistic child who has cerebral palsy and multiple auto-immune disorders and with her mother who is 77; Dave Miller, who previously had stage 3 malignant melanoma and had radiation treatment and surgery to remove the tumor and 80 nodes and more recently had spots identified on his lungs, but they were biopsied and were not found to be cancerous; Joy Parikh, who has severe asthma; Martin Clapton, who has no underlying conditions but who has been caring during the COVID-19 pandemic for his wife, who has partial kidney failure, must take medication that leaves her immune-compromised; and Michelle Colon, who has no specific underlying conditions but is trying to follow public health guidance just like the other Plaintiffs.  Both Oppenheim and Colon are Black and are subject to the disproportional impact COVID-19 has had on the Black community.

All of them are registered to vote and all of them wish to vote in this election, but they are concerned about the health consequences.  As Ms. Harwell explains in a statement filed with the Court:

I am concerned that my diabetes, my son’s medical vulnerabilities, and my mother’s age place us all at a higher risk of severe illness or death if any of us contracts COVID-19.  I am concerned that if I contract COVID-19, I will transmit it [to] other members of my family.  As my son’s primary caregiver, I am concerned about the toll it will take on him if I contract COVID-19 and cannot take care of him for a significant period of time.

We pointed out to the Court that people with pre-existing medical conditions that make them more likely to suffer severe consequences fall within the provision of Mississippi law providing the option of absentee voting to “[a]ny person who has a temporary or permanent physical disability and who, because of such disability, is unable to vote in person without substantial hardship to himself or herself or others, or whose attendance at the voting place could reasonably cause danger to himself or herself or others.”  We also pointed out the all voters who are following public health guidance from the MDH and the CDC — whose directors are physicians —  to stay at home as much as possible and avoiding community events are eligible under the separate provision permitting absentee voting by those who are under a “physician imposed quarantine.”

Unfortunately, the Mississippi Secretary of State, who is represented in court by the Mississippi Attorney General, takes a very narrow view of the absentee ballot law and argued in Court that nearly all of our clients and others in their shoes are not eligible vote absentee

In her statement, also filed with the Court, Ms. Oppenheim voiced concerns echoed by all of the Plaintiffs:

I believe I can vote absentee but I’m not completely sure.  I think my Lupus and kidney disease constitute a “physical disability.”  I believe that my “attendance at the polling place could reasonably cause danger to” myself.  It is especially dangerous for me, because I am at a higher risk of severe illness or death due to my underlying condition

I am trying to follow guidance from the Mississippi Department of Health and the Centers for Disease Control.  Dr. Dobbs, a physician, is the director of MDH and the director of the CDC is also a doctor.  They suggest that people stay home as much as possible and avoid community events, which I am trying to do.  I think I can say I am under a “physician imposed quarantine,” but I am not completely sure about this.  The law is not very clear to me.

Because of this same uncertainty that exists among many of Mississippi’s voters, we asked the Court to interpret the law in a way that gives voters the choice of voting absentee as they attempt to follow public health guidance.  We expect a ruling very soon.  Any ruling is likely to be appealed on an emergency basis to the Mississippi Supreme Court by one side or the other.