This week, Tennessee’s Supreme Court heard oral arguments in regard to a lawsuit in which a handful of Tennesseans alleged that Tennessee’s absentee ballot statutes violate their right to vote. As I read some of the questions the Justices asked, I obtained and read the Order of Chancellor Ellen Lyle that is being appealed. If that Order is upheld and followed, the state Constitution will no longer mean much. I really hope you’ll read this to understand what is going on.
 
The single statute to which Chancellor Lyle’s order is directed is Tenn. Code Ann. 2-6-201 (5). Here it is in case you want to read it, but the depiction that follows this one is what’s critical:
 

A registered voter in any of the following circumstances may vote absentee by mail in the procedures outlined in this part:
 
(5) Persons Over 60 — Persons Hospitalized, Ill or Disabled. 
(A) A person sixty (60) years of age or older when the person requests to vote absentee;
(B) The person is a voter with a disability as defined in § 2-3-109, and the voter's polling place is inaccessible;
(C) 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
(D) The person is a caretaker of a hospitalized, ill or disabled person;

  
The Order then says: “The Defendants are enjoined from enforcing (5)(C) and (D).”  
 
So, this is what the statute, as a practical matter, now looks like:
 

A registered voter in any of the following circumstances may vote absentee by mail in the procedures outlined in this part:
(5) Persons Over 60 — Persons Hospitalized, Ill or Disabled. 
(A) A person sixty (60) years of age or older when the person requests to vote absentee;
(B) The person is a voter with a disability as defined in § 2-3-109, and the voter's polling place is inaccessible;

 
Okay, fine. But how in the world, based on what’s left of the statute, do state officials have any lawful authority to issue an absentee ballot to anyone who requests one? It looks to me like only those in categories (A) and (B) can now get an absentee ballot.
 

The First Violation of Tennessee’s Constitution

 
Well, Chancellor Lyle’s Order goes on to say this:
 
Friend, that is not a “construction” of the words the legislature wrote. As I’ll demonstrate below, that is a straightforward rewriting of a statute. 

This second part of the Chancellor’s Order is a clear violation of the separation of powers under Article II, section 2 of the Tennessee Constitution: “No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.” 

 

The Second Violation of Tennessee’s Constitution

Now, consider what the constitutional limitations are on the Secretary of State, under whose authority the state election office operates by statute. Article III, Section 17 of Tennessee’s Constitution says, 
    
The very nature of the judicial power is that courts can’t make “law” for the “whole people” of Tennessee, because the judicial power is only one of judgment, not force (executive power) or will (legislative power). 
 
No court can authorize a state official to do what he is not authorized to do by law. None!  

 

What the Chancellor Actually Did—The Ruse of “Construction”

 
Chancellor Lyle knows she can’t make “law” for the people or for the Secretary of State. So, she has to cloak the law she made under the guise of statutory “construction,” more often called “interpretation.” 
 
Had the Chancellor truly interpreted or construed the words and phrases written in the statute she would have needed to say something like: “The phrase ‘physically disabled’ means ‘afraid of getting sick.’” That interpretation is not within the normal meaning of the word “disabled.”.
 
But, then, she would have also had to say something along these lines: “The word ‘condition’ in the phrase ‘and because of such condition, the person is unable to appear…’ actually means or includes “fear of getting sick.”
 
Then, the Chancellor would have also needed to say something like: “And ‘unable to appear’ means “afraid to appear for fear of getting sick.’”
 
Now, let’s put the actual words of the statute next to the words of the statute per the Chancellor’s “construction”, with the actual language of the statute first and the Chancellor’ Order second:
   
Now do you see how that is not simply “construction,” but rather a rewriting of the law?
  

What to Conclude

 
Increasingly, few in state government seem to care about insisting that the judiciary actually follow the Tennessee Constitution. 
 
And I doubt judges will worry much about going off the constitutional rails so long as state officials go along and state legislators, who can remove them from office simply by two-thirds vote (which Republicans have in both chambers), do nothing. 
 
Why wouldn’t a judge then grab power to do what he or she thinks makes for good public policy when those who are to check his or her power won’t? 
 
If Chancellor Lyle’s order stands and is obeyed, our state officials and legislators may tell us that they are trying to act lawfully. They may say they don’t want to be lawless. But don’t be fooled. 
 
When those in office no longer believe in, and govern on, the basis that the people’s constitution is the supreme civil law in our state and that it is to be obeyed by all those in all the branches of state government, that is the very definition of acting unlawfully. 
 
When the supreme law in the state is disregarded by those whose oath is to uphold it —that is lawless.
 

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.