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Update: Roughly 2,500 absentee ballots “didn’t make it in” to the Shelby County Election Commission by the close of Thursday’s election, administrator Linda Phillips said Friday.

All told the election commission received 16,941 absentee ballots, which will be counted toward’s Thursday election, Phillips said.

The commission sent out a total of 19,440 ballots. Phillips estimated that a total of about 300 absentee ballots were rejected because they were missing affidavits or signatures.

The Bartlett Post Office took absentee ballots until 5 p.m. election day for same-day delivery to the Shelby County Election Commission, Phillips noted. “Bartlett is a small community in Shelby County,” Phillips said. “It is our home service post office for the election commission.”

Phillips estimated that “about 200 ballots” came in from Bartlett. “Everything that came in before 7 p.m. last night will be counted.” Bartlett was 72.8% white in 2019, according to U.S. Census Bureau data.

Pre-election snafus involving absentee ballots could have an impact on the outcome of today’s ​election​ in Shelby County, according to voting rights activists, an election official and at least one candidate.

Despite a recent court ruling that made absentee ballots for the August primary available upon request to any eligible Tennessee voter, Shelby County voters faced a slew of frustrations and delays in getting them.

Memphis resident Daniela Lawson waited nearly a month for her ballot, which she successfully submitted to the Shelby County Election Commission last week. Lawson counts herself fortunate.

“There’s just a lot of confusion,” said Lawson, a 27-year-old factory worker. “They were sent out much later than we were told they would be.”

Election officials in the state’s most populous county didn’t begin sending out absentee ballots until mid-July, six weeks after many other parts of the state. By then, the commission was deluged and backlogged, and the process was further complicated by postal service delays of up to several days. The election commission must receive ballots by 7 tonight to be counted.

That may mean a lot of people will not get to vote, said Steve Mulroy, a University of Memphis law professor who teaches voting rights and election law.

“They may have gotten the ballots but they may not have (had) time to mail them back in. That’s my worry,” Mulroy said.

The number of absentee ballots cast in this election are not insignificant. Historically, Shelby County has received 800 to 1,000 absentee ballot requests during August primaries, officials said.

As of Tuesday, the election commission received 15,923 absentee ballots early voting, which made up nearly 20% of the early vote totals. More than 3,500 absentee ballots were still out on Tuesday, election officials said.

More than 81,000 voted in person or by absentee ballot during the two-week early voting ​period.

Patricia Possel, a Republican running for Tennessee House District 96, said the snafus are likely to have an effect on the election.

“Some of these races are extremely tight and could come down to a few votes,” said Possel, who has lived in Memphis for 20 years.

Today’s ballot includes races for General Sessions court clerk, county school board, and a Collierville municipal judge. In federal and state primaries, Democratic and Republican candidates are vying for seats in the U.S. House and Senate, as well as some district seats in the Tennessee Senate and House.

Problems from the beginning

The absentee balloting process has been daunting, said Shelby County Election Commission member Bennie Smith, a nationally recognized election security expert who spoke last year at a U.S. Senate election security briefing.

“I’m not happy with the way we handled the process for people getting absentee ballots,” said Smith, one of two Democrats on the five-member commission. “There were so many hurdles to jump through.”

At a commission meeting about two months ago, Smith said he complained about “inflammatory” language on the absentee ballot application that could scare off voters, especially the elderly. He cited one section that said: “I understand that if I apply to vote absentee by mail and I am not entitled to do so, I have committed a felony.” The commission voted 4–1 to keep the wording for the August election, he said.

After a court ruling required the commission to include a COVID-19 provision on the application, the commission decided to remove the inflammatory language, Smith said. Would-be absentee voters ended up getting one of two versions of the application.

Smith noted that the language he was concerned about didn’t exist on applications in Tennessee’s 94 other counties.

Shelby County was at least a month behind other parts of the states sending out absentee ballots. Ballots did not go out to Shelby County voters until mid to late July. Voters in some parts of Tennessee received their absentee ballots in May, Smith said.

At the July 21 election commission meeting, administrator Linda Phillips blamed the lateness on the state not finalizing Shelby County ballots until June 30. A printing error on the ballots further complicated matters.

Shelby County is home to just over 575,000 registered voters, more than any other county in Tennessee. It’s also a blue county in a red state, with a 54% black population.

One social justice and voting rights activist called the confusion and delays by state and local election officials “a more sophisticated form of voter suppression.”

“This is not getting people to count the number of jelly beans in a jar or the number of bubbles on a bar of soap,” said Rev. Earle Fisher, referring to Jim Crow-era methods used to keep blacks in the South from voting. “But this is making people have to overcome structural obstacles just to have access to something that is a right, not a privilege.”

Fisher is the founder of UpTheVote901, a civic engagement organization that works to increase voter turnout. He was part of a group of Shelby County residents and groups that sued the state in May to expand access to absentee ballots by adding coronavirus concerns as one of the permitted reasons to vote absentee.

The state argued that expanding absentee voting would increase the risk of voter fraud and would be expensive and administratively burdensome. State officials contend that social distancing and other public health measures would be practiced.

The plaintiffs won in Chancery Court, but the Tennessee Supreme Court on Wednesday vacated the Chancery Court’s temporary injunction that opened absentee voting to all concerned about the virus during this year’s elections.

All absentee ballots cast during the August election will be counted. But for the November election, the expansion will include only those concerned because they have underlying medical conditions or caretakers of vulnerable people, but not those who have a general concern, the state High Court ruled.

Mulroy, the lead counsel for the Shelby County plaintiffs, called the ruling a “partial victory. The court split the baby.”

“It will be for most voters (in November, too) when you add up hypertension, diabetes, obesity, and smoking plus anybody who takes care of such a person. When you add all of that up, you’re going to get most voters.”

Absentee ballots previously had 14 potential excuses voters could use. They covered the elderly, people with medical conditions and their caregivers, as well as people in jobs that took them out of state, such as military personnel.

As COVID-19 cases and deaths continue to surge nationwide and the presidential election nears, more than a dozen states have adopted more flexible rules toward mail-in voting. The Trump administration has attacked the trend, claiming — without evidence — it could lead to voter fraud and threaten the integrity of the presidential election in November.

“There’s really no reason to think that expanding absentee voting would give rise to a significant increase in mail voting fraud,” Mulroy said. “Mail-in voter fraud is incredibly rare everywhere and is no more common in states that have liberal absentee rules than it is in states with strict absentee rules.”

Counting the ballots

Elections Administrator Linda Phillips said there is “no way of specifically knowing” if people chose to vote absentee due to the pandemic because that reason was listed on the same line of the application as someone who planned to vote absentee because they were sick.

Of the absentee ballots received before the election, “less than 200” had been rejected due to missing signatures, missing affidavits, or other externally visible problems, Phillips said. When a ballot is rejected, the commission “automatically sends the voter a new ballot. We tell them what the problem is.”

Phillips conceded there are cases where election officials won’t be able to contact the voter whose ballot has been rejected because there isn’t enough information to identify the individual.

By law, absentee ballots can’t be touched until Election Day, Phillips said. That’s when they’re opened, extracted, flattened, and run through a high-speed tabulator scanner.

The commission has a “small army” — a bipartisan team of 60 people — who’ll be processing absentee ballots today,” she said. The team will likely find more ballots that will have to be rejected but she predicts the number will be minuscule.

“There’s nothing that can be done when we find errors on Election Day,” she said.

As for the absentee ballots’ impact on today’s election results?

It’s hard to gauge how the state and the county election commission’s “stubbornness and mixups” may fully factor into today’s election, Mulroy said.

But it has been a learning experience.

“We can now be on guard to prevent them from occurring in November.”

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