When can a Tennessee county election commission release early and absentee voting totals?

Subject

Release of Early and Absentee Voting Results

Plain-English summary

Tennessee statutes draw a hard line between when ballots are cast and when totals can be produced. Early and absentee ballots, whether paper or electronic, sit in locked boxes (or secured machines) until election day. The county absentee counting board can begin processing them at a designated time on election day, but Tenn. Code Ann. § 2-6-304 prohibits totaling votes for any candidate "until after all polls in the county are closed."

The catch is the definition of "closed." Under Tenn. Code Ann. § 2-7-127, polling places do not close at the statutory closing time itself. They close once every voter who was in line at the closing time has finished voting. The closing times are 8:00 p.m. in eastern-time counties and 7:00 p.m. in central-time counties under § 2-3-201(a). Only after the last in-line voter has cast a ballot can the county election commission tally and release early and absentee numbers.

The opinion is short, but its policy implication is significant: a long line at one precinct can hold up the announcement of early and absentee totals across the entire county.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

When does a polling place actually close in Tennessee?

The closing time set in § 2-3-201(a) (8 p.m. Eastern, 7 p.m. Central) is when election officials place the final official at the end of the line. No new voters can join after that point, but everyone already in line gets to vote. The polls are not "closed" in the legal sense until every one of those waiting voters has cast a ballot. The opinion was explicit that the time the polls opened does not affect this rule.

Why can't early and absentee numbers come out earlier?

Tenn. Code Ann. § 2-6-304 says, in subsections (c) and (e), that "[i]n no event may the votes for any candidate be totaled until after all polls in the county are closed." The opinion treats the prohibition as categorical, applying both to paper ballots and to electronic early-voting machines. Election regulations at Tenn. Comp. R. & Regs. 1360-2-18-.06 even require that votes be removed from machines in a way that prevents associating any candidate with totals at the moment of removal.

Could one slow precinct hold up the announcement of early/absentee totals?

Under the opinion's reading, yes. "All polls in the county" means every precinct. If one precinct still has voters who were in line at closing time, the absentee counting board cannot total or release early or absentee results.

What about announcing the count by precinct as they close one by one?

The statute keys the prohibition on totaling votes "for any candidate" until "all polls in the county are closed." The opinion does not authorize a rolling release of early/absentee totals as individual precincts finish.

Background and statutory framework

Tennessee centralizes the actual counting of early and absentee ballots through the county absentee counting board. Paper early-voting ballots are placed in locked boxes under § 2-6-109(c)(1); paper absentee-by-mail ballots go in locked boxes under § 2-6-202(g) and § 2-6-311; electronic early-voting machines are secured under § 2-6-104(c) and (d). On election day, the boxes and machines are delivered to the absentee counting board at a time set by § 2-6-303(a)(1).

The board can prepare and process the ballots, but the final step (totaling votes for each candidate) is locked behind § 2-6-304's "all polls closed" trigger. The opinion is essentially a careful tracing of these statutes back to a single rule, anchored on the precise definition of "closed" in § 2-7-127.

Citations

• Tenn. Code Ann. §§ 2-3-201(a), 2-6-104, 2-6-109(c)(1), 2-6-202(g), 2-6-303(a)(1), 2-6-304, 2-6-311, 2-7-127
• Tenn. Comp. R. & Regs. 1360-2-18-.06

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-12.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 26, 2019

Opinion No. 19-12

Release of Early and Absentee Voting Results

Question
When may a county election commission release early and absentee voting results?

Opinion
Absentee and early voting ballots may not be totaled, and thus may not be released, until all polling places in the county are closed. Under Tenn. Code Ann. § 2-7-127, polling places are closed only when all persons waiting in line to vote at the time set for closing have voted.

ANALYSIS

The statutory procedures governing Tennessee elections prohibit county election officials from totaling the absentee and early votes cast for any candidate until after all of the polls in the county have closed. Paper absentee and early votes submitted in Tennessee are initially placed in locked ballot boxes. See Tenn. Code Ann. §§ 2-6-109(c)(1) (in-person early voting); 2-6-202(g) (absentee voting by mail); see also id. § 2-6-311 (requiring absentee ballot boxes to be locked). These boxes are then delivered to the absentee ballot counting board at a designated time after the polls open on election day. See id. § 2-6-303(a)(1). Counties may also use electronic machines for early voting, and, if they do, county election officials must ensure the security of these machines to prohibit tampering. See id. § 2-6-104(c); see also id. § 2-6-104(d) (requiring the coordinator of elections to promulgate regulations that "include appropriate provisions for the security" of the machines used for early voting).

The total number of absentee and early ballots cast for any candidate, whether submitted on paper or through an electronic voting machine, may not be counted until after all polls in the county have closed. For both paper and electronic absentee and early ballots, Tenn. Code Ann. § 2-6-304 provides that "[i]n no event may the votes for any candidate be totaled until after all polls in the county are closed." Id. § 2-6-304(c), (e). To ensure compliance with that statutory mandate with respect to electronic voting machines, election regulations require that votes "must be removed from the machines in such a manner so that no vote totals can be associated with any candidate at the time of removal." Tenn. Comp. R. & Regs. 1360-2-18-.06.

The polls in a county are "closed" only after all persons waiting in line to vote at the time set for closing have voted. Tennessee Code Ann. § 2-7-127 makes this clear:

At the time set for the closing of the polling place, the officer of elections shall place one (1) of the election officials at the end of the line of persons waiting to vote. No other person may then get in line to vote. The polls shall be closed as soon as all persons in the line ahead of the election official have voted regardless of when the polls opened.

(emphasis added). Tennessee Code Annotated § 2-3-201(a) establishes the "time set for the closing of the polling place": 8:00 p.m. in counties in the eastern time zone and 7:00 p.m. in counties in the central time zone. Thus, all persons in line at that time may vote, and the polls are not closed until they have done so.

In sum, absentee and early voting ballots may not be totaled, and thus may not be released, until all polling places in the county are closed. Under Tenn. Code Ann. § 2-7-127, polling places are closed only when all persons waiting in line to vote at the time set for closing have voted.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Brian Kelsey
State Senator
742 Cordell Hull Building
Nashville, TN 37243