USA

They're at high risk of the coronavirus. But their state might not let them vote by mail.

Mary Harwell, her husband, her elderly mother and her autistic son have remained in quarantine since the early days of the coronavirus pandemic, watching from their windows as many of their fellow Mississippians live relatively normal lives despite the crisis.

While many people can return to some semblance of routine if they wear masks and follow the guidelines of the Centers for Disease Control and Prevention, Harwell, 45, and her family must remain vigilant inside their home in Jackson. Every member of her household, except her husband, has a pre-existing condition that puts them at additional risk of death if they are infected by the coronavirus.

A plaintiff in a case over absentee voting in Mississippi, Mary Harwell, who is diabetic, with her autistic son, Jack, who is immunocompromised, in their home in Jackson, Miss.Courtesy Mary Harwell

Harwell and her family have sacrificed much during the pandemic, but one thing they are unwilling to give up is their vote. Under current law, Mississippians have to show up in person to cast their ballots on Election Day, which led Harwell and five other plaintiffs, along with the American Civil Liberties Union and the Mississippi Center for Justice, to sue the state to expand absentee voting in Mississippi.

Mississippi and four other states — Indiana, Texas, Louisiana and Tennessee — continue to limit vote-by-mail access and don't consider the pandemic to be a valid reason for absentee voting. Each state faces numerous legal challenges to the stymied access. With less than two months until Election Day, many voters remain confused about whether and how they can vote by mail. The uncertainty has the potential to affect voter access and, therefore, the outcomes of the elections themselves.

Harwell is particularly worried about her son, who suffers from cerebral palsy, ulcerative colitis and primary immunodeficiency disorder.

"Voting in person is exactly a situation we've been trying to avoid since March," Harwell said. "It's what we've been advised to avoid by doctors at all levels, and I'm truly scared — scared for my mother and my son, who requires 24/7 care. What if I get sick and can't take care of him?"

A chancery court judge in Mississippi ruled last week that four of the voters — and those Mississippians in similar situations — should be able to vote absentee because they have pre-existing conditions. But she rejected the argument that voters who are following public health guidance should be extended the same opportunity.

Nevertheless, the Mississippi secretary of state's office has appealed the decision.

Advocates argue that the language of the Legislature's provision is unclear and that it must include guidance given by the State Department of Health to avoid crowds — effectively extending the opportunity to vote by mail to everyone. Otherwise, they say, the new law can hardly be considered an expansion or an accommodation of Mississippians' health.

"We'll see what happens with the appeal, but I'm also worried that my husband might not be able to vote. He's not vulnerable, he doesn't have a pre-existing condition, but he does live in a vulnerable household," Harwell said. "It seems like there's a simple solution to all this that other states have been doing since before the pandemic, but they just don't want to do it."

Unclear guidance and lawsuits

That's an issue for Michelle Colón, 47, who is also part of the case pushing to expand vote-by-mail access in Mississippi. While Colón doesn't have any health issues, she said people shouldn't have to put themselves at risk of infection or face 14 days in quarantine for casting their ballots. To complicate matters, there are fewer polling locations than in past elections.

Since 2013 — when the Supreme Court struck down sections of the Voting Rights Act that required Mississippi to seek clearance from the Justice Department before closing or moving polling locations — the state has shut down around 100 of its precincts, or 5 percent, according to an analysis conducted by the nonprofit news organization Mississippi Today before the 2018 election.

Madison County voters fill out paper ballots in Ridgeland, Miss., on Nov. 6, 2018.Rogelio V. Solis / AP file

"You start to think about why they're making it so hard to vote during a pandemic," she said. "You know, this part of the country, especially Mississippi, has a history of voter disenfranchisement, but why is it that the ease of voting and ease of access to voting is still an issue in 2020?"

Mississippi requires its voters to apply for absentee ballots. The applications have to be notarized and then mailed to local court clerks, who have to approve the applicants' need. If the voters get approved by the clerks, they will then receive ballots.

Voters can register and apply to vote by mail "up until ten days before the date of an election and may receive and return an absentee ballot by mail, email, or fax," according to the state's official voting guide.

Full coverage of the coronavirus outbreak

The guide notes: "In the year 2020, voters under a physician-imposed quarantine due to COVID-19 or caring for a dependent under a physician-imposed quarantine may request an absentee ballot under the temporary or permanent physical disability excuse, and absentee vote by mail," but it is unclear whether that requires a doctor's note or some other means of notification.

Advocates say knowing whether Mississippians or their loved ones will be in "physician-imposed quarantine" on Election Day is impossible to predict, forcing voters into a Catch-22 of getting permission to vote absentee while also somehow predicting their conditions come Nov. 3. A secondary issue is that a late request for a ballot could be a problem considering the state is likely to face a record number of applications.

"I certainly don't see how people are supposed to know whether they have coronavirus sufficiently in advance to get a ballot, particularly because they have to get their application notarized and they're not supposed to interact with any other people if they are quarantined," said Theresa Lee, a staff attorney for the ACLU's Voting Rights Project who is arguing the case.

Last week, Mississippi Secretary of State Michel Watson appealed the judge's decision to allow those with pre-existing conditions to vote by mail. He appeared to argue in court documents that his office is sufficiently prepared for the election by following CDC guidance.

But the specific answers about how voting could be safe for someone with a pre-existing condition — or whether it's possible to predict when someone will be in "physician-imposed quarantine" — are unclear.

The secretary of state's office didn't respond to a request for comment.

Mississippi Secretary of State Michael Watson speaks at a joint hearing at the state Capitol in Jackson on June 3.Rogelio V. Solis / AP file

Another concern amid the state court battles: Voters will get confused about how to vote. Changed regulations could impede voters' plans, which is a concern for state Sen. David Blount, a Democrat who has been on the Senate's Elections Committee for the past four terms.

"The most important thing you need is clear instructions that every county in the state knows and can understand and will follow," Blount said. "It needs to be so that if you have two people who were exactly similarly situated in two different counties with two different election administrators from two different parties, the process is the same."

Blount hasn't been supported by Republicans who control the Legislature. He said that most of his colleagues didn't want more people to vote by mail and that the lack of clarity for the slight allowance they made had only led to lawsuits.

"It would have been my preference if the Legislature had been proactive and, I think, reasonable to consider the things that are popular with Mississippians of both political parties," he said. "If so, I don't think these lawsuits would've even been necessary."

Ripple effects down the ballot

But as the confusion festers and the clock ticks down to Election Day, Democrats are concerned that it could have an effect on their down-ballot races, as well.

Two crucial U.S. Senate seats, one in Mississippi and another in South Carolina, could be decided by the voting process. As of now, Mississippi doesn't allow absentee voting except in very specific circumstances, while South Carolina just amended its strict laws this week. Many people believe opening access to voting could positively affect the two Black Democrats running in those states, former Agriculture Secretary Mike Espy in Mississippi and Jaime Harrison in South Carolina.

Mike Espy, left, and Jaime Harrison.Jonathan Bachman, Mark Makela / Reuters, NBC News

South Carolina's governor signed a law Wednesday to expand absentee voting. Under the law, county voter offices must receive absentee ballot applications by 5 p.m. on Oct. 24 if sent by mail and by 5 p.m. on Oct. 30 if applications are received in person. It also requires voters to have witnesses sign affidavits that they voted — a provision previously struck down by the state Supreme Court that is being challenged again.

Shaundra Scott, the South Carolina Democratic Party's director of voter protection, said absentee voting could be the difference maker for elderly people of color and minority communities across the state.

"There's always a conversation about registering to vote and getting out the vote, but there hasn't been a huge conversation about absentee or the different ways to vote," Scott said. "Traditionally, African Americans in South Carolina do not vote by mail, so all of this information about absentee voting by mail is new to a lot of African Americans, especially older African Americans."

While Democrats and the ACLU have numerous legal challenges in the works to change the witness requirement, they have little hope that there will be clear-cut guidance soon.

"We're advising everyone to have their ballots signed as they're getting them, because we won't know probably until October, somewhere between the 15th and the 1st, definitively what's going on," Scott said.

In Mississippi, Republican Sen. Cindy Hyde-Smith, who faces Espy in her re-election bid, didn't share a position on absentee voting. Instead, her campaign deferred to the Mississippi secretary of state's office.

"MS voting guidelines are set at the state level," campaign spokesman Justin Brasell said in an email. "Sen. Hyde-Smith has confidence that the Secretary of State's office and other officials are working to ensure a safe, efficient, and accurate general election vote for MS voters."

NBC News followed up to ask whether Hyde-Smith had any specific thoughts about how voting should be changed or run in the state, but Brasell didn't respond. Mississippi still faces high rates of Covid-19 infection, which led Republican Gov. Tate Reeves to extend a statewide mask mandate last week.

Hundreds of demonstrators stand in silent protest for almost nine minutes in Jackson, Miss., on June 6 following the death of George Floyd.Rogelio V. Solis / AP file

Espy said in an interview that he believes expanding absentee voting would undoubtedly help his campaign, as it would further empower Mississippi's large Black community, but he said he isn't counting on the lawsuit to expand access.

"People of Mississippi are voting because they know Fannie Lou Hamer could not vote. They know Medgar Evers was shot and killed because he encouraged people to vote," he said. "So they're not going to let any restrictions intimidate them and not come cast their ballot."

But Harwell still isn't sure, even though she believes there is more on the ballot for her this year than the presidential election. The state is also considering a ballot initiative that would legalize medical marijuana, which she believes could help manage her son's ulcerative colitis.

"I just thought surely this would all be figured out and I wouldn't be sitting here in September not knowing if every member of my family is going to be able to vote safely without putting us at extreme risk," she said. "So I'm really frustrated about that, and I'm scared and just so, so baffled."

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