New edition alert: Lee order snubbed, GOP introduces fees to run, 3-judge panels named
In this week’s print edition of The Tennessee Journal:
— Big school districts ignore Lee’s executive order for opting out of masks
— That’ll cost you: State GOP approves fee schedule for candidates, bona fide updates.
— Money matters: Tennessee ends budget year with $2.96B surplus in its general fund.
— A three-judge tour: Supreme Court names first three-judge panels, two headed by Lyle.
— Also: Lee gets the Trump endorsement, Harshbarger late on stock disclosures, Haslam and Sundquist as new radicals, and was Fiscus barking up the wrong tree with her muzzle complaints?
Access the your TNJ copy here or subscribe here.
AP: State election coordinator’s memo served as basis for judge ouster resolution
State Election Coordinator Mark Goins helped lay the groundwork for a controversial resolution to oust a respected Nashville judge for a ruling to expand access to absentee voting during the pandemic, according to public records obtained by the AP’s Kimberlee Kruesi and Jonathan Mattise.
Goins sent a five-page memo outlining his complaints about Chancellor Ellen Hobbs Lyle to Rep. Tim Rudd (R-Murfreesboro), the sponsor of the resolution that would gain as many as 67 cosponsors before it was killed in a House subcommittee last week. Goins said he wrote the memo at Rudd’s request about a month before the resolution was filed.
According to emails obtained by the AP, Rudd’s assistant sent a Jan. 20 email saying the lawmaker was “in need of verbiage and information for this resolution.” According to Goins’ memo:
“Chancellor Lyle issued numerous orders and expressed her opinion ranging from ordering ministerial checklists, destroying accurate election documents, using her specific language for instructions and websites, to challenging statutory language regarding voting fraud. The practical effect was she became the de facto Coordinator of Elections when it came to voting by-mail.”
Goins also took issue with Lyle’s “tone” during proceedings.
Lyle in June told Secretary of State Tre Hargett’s office “shame on you” for taking matters into its own hands by modifying her absentee balloting order without first seeking approval from the court. Goins the previous week had told county election commissions to “hold off” on following Lyle’s order while his office revised application forms and sought a stay.
The state’s creation of a new category for voters unwilling to risk their health was criticized as sowing uncertainty about whether ballots would be counted if the decision is later overturned. While Lyle declined plaintiffs’ motion to impose sanctions for the unauthorized changes, she ordered the state to revise its forms to include concerns over COVID-19 among the existing qualifications for people too ill to vote in person. If her ruling isn’t followed, she warned, criminal contempt proceedings could follow.
“Chancellor publicly chastised defendants saying, ‘Shame on You’ and threatened criminal contempt,” Goins wrote. “However, Chancellor Lyle did not ‘shame’ or ‘threaten to hold in contempt’ the multiple plaintiffs who voted in-person even though they signed a verified complaint under oath in her court saying they did not want to risk their health by voting in-person and needed to vote by mail.”
Goins and Hargett promoted news coverage of the plaintiffs’ decisions to vote in person while the lawsuit was going on.
Bid to oust judge over absentee voting ruling killed in House
The House Civil Justice Subcommittee has killed a resolution calling for the ouster of Nashville Chancellor Ellen Hobbs Lyle for a ruling expanding access to absentee voting last summer.
The measure sponsored by Rep. Tim Rudd failed on a voice vote. The question was called on the measure despite the Murfreesboro Republican saying he wanted to roll the bill until next week. Rudd confronted Chair Andrew Farmer (R-Sevierville) after the meeting.
“You’re a disgrace!” Rudd told Farmer, bumping into a reporter standing between the two lawmakers.
The measure’s failure comes as a bit of a surprise as 67 Republicans were listed as co-sponsors. But the subcommittee included two Republicans members hadn’t signed on — Michael Curcio of Dickson and Johnny Garrett of Goodlettsville — and two Democrats who opposed the measure, Antonio Parkinson of Memphis and John Ray Clemmons of Nashville.
Rep. Bruce Griffey (R-Paris) demanded a roll call vote, but his motion didn’t come until the vote was already underway. He sought a recount after the fact, but Farmer had already gavelled the resolution dead.
One observer noted the fight over the ouster resolution could portend a splintering among the House Republican Caucus going forward. The extent of the fallout and the fate of inevitable resurrection attempts remain to be seen.
Lawyers form coalition to oppose legislative move to oust judge
A group calling itself the Committee for an Independent Judiciary is forming a coalition to fight efforts by legislative Republicans to oust Nashville Chancellor Ellen Hobbs Lyle for her ruling expanding access to absentee voting last summer.
“Currently in Tennessee, there is an unprecedented and misguided attempt by some state lawmakers to remove a highly qualified and respected judge because they disagree with one of her decisions,” according to the group.
“During her 25-year career on the bench, Chancellor Lyle has consistently handed down thousands of legal rulings based on the law. Tennessee’s legislature has never in its long history removed a judge from office. This resolution is a threat to judicial independence and, if passed, would quickly erode the fundamental separation of powers. As this bill makes its way through the state legislature, concerned citizens must come together and express opposition.”
The coalition’s leadership committees are comprised of:
- Bob Boston, Waller Lansden Dortch & Davis, Nashville.
- Roger Dickson, Miller & Martin, Chattanooga.
- Aubrey Harwell. Neal & Harwell, Nashville.
- Lucian Pera, Adams & Reese, Memphis.
- Wayne Ritchie, Ritchie, Dillard, Davies & Johnson, Knoxville.
- D. Billye Sanders, Dockery & Associates, Nashville.
The resolution filed by Rep. Tim Rudd (R-Murfreesboro) claims Lyle “committed serious ethical violations and abused her authority by pursuing a personal and partisan agenda” by ruling in favor of greater access to mail-in ballots during the pandemic.
Lyle, who was appointed to the bench by Republican Gov. Don Sundquist in the 1990s, has made many high-profile ruling over the years. They included a decision to allow Tennessee’s constitutional amendment banning same-sex marriage to appear on the 2006 ballot despite the state missing a public notice deadline.
Bar association blasts bid to remove judge over absentee ballot ruling
The Tennessee Bar Association says an effort to oust a Nashville judge over her ruling in an absentee voting case last summer “threatens the bedrock principle of separation of powers.”
Rep. Tim Rudd (R-Murfreesboro) introduced the resolution to begin ouster proceedings against Chancellor Ellen Hobbs Lyle last week. The measure has 67 co-sponsors — enough for the removal to clear the House chamber if it came up for a floor vote. Lyle was appointed to the bench by Republican Gov. Don Sundquist in the 1990s.
Bar Association President Michelle Greenway Seller said in a release that if the ouster succeeds, it could “create a precedent that any time a judge rules against the state, or on a statute, or renders a politically unpopular decision, that decision could potentially trigger legislative removal proceedings against that judge.”
Read the full release below.
Continue readingJudge orders state to include specific guidance on absentee ballot eligibility due to COVID-19
A judge has ordered Tennessee Secretary of State Tre Hargett’s office to include wording in absentee ballot application forms to make clear that people at greater risk from contracting COVID-19 are eligible to vote by mail.
Nashville Chancellor Ellen Hobbs Lyle’s ruling Tuesday came after the state Supreme Court agreed to vacate the injunction she had imposed earlier when the state took what the chancellor called the “extraordinary step of a last-minute concession during oral arguments” that people with a special vulnerability to COVID-19 (or those who care for people who do) had a valid reason to cast absentee ballots. Had the state taken this position earlier, Lyle said, the case would have been settled long before it reached the Supreme Court.
The high court’s ruling had instructed Hargett’s office to “ensure that appropriate guidance is provided to Tennessee registered voters” about the state’s new stance. While Hargett issued a press release that included reference to people with a special vulnerability to COVID-19 being able to vote by mail, the new application form included no such information.
As such, Lyle ruled the application forms should now include the following excuses for people seeking to vote by mail:
I am hospitalized, ill or physically disabled and unable to appear at my polling place to vote (this includes persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it).
I am a caretaker of a hospitalized, ill or physically disabled person (this includes caretakers for persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it).
Lyle also deemed that other materials issued by the state on the subject of absentee balloting — such as language highlighted at the bottom of the form offering a $1,000 reward for information leading to a conviction for voter — to be “confusing and misleading.” But the chancellor said those details fell outside of her purview.
Hargett’s office was critical of the decision.
“It is ironic to us that the same Chancellor who chastised us for changing the form is now upset because we did not change the form,” Hargett spokeswoman Julia Bruck said in an emailed statement. “The Chancellor is legislating from the bench.”
Hedy Weinberg, the exeutive director of the state chapter of the American Civil Liberties Union, lauded the decision:
The court’s ruling today will ensure that people with special vulnerability to COVID-19 and their caretakers know exactly how to request mail-in ballots. The state’s delay in making this information clear is yet another example of voter suppression in Tennessee. Our state should be working to make it as easy as possible for people to vote, not creating obstacles at every turn and requiring a court order to fix them. We applaud the court for compelling the state to make Tennesseans’ voting rights clear and to do so quickly.
Supreme Court turns down state’s effort to halt expanded absentee voting amid pandemic
The Tennessee Supreme Court has declined to immediately halt a judge’s order that the state must allow any voters concerned about being infected by COVID-19 to cast their ballots by mail. But the state’s highest court did agree to directly take up the full legal challenge of the ruling, bypassing the intermediate Court of Appeals.
Tennessee high court keeps mail voting expansion amid appeal (from @AP) https://t.co/ULFvvxjkWO
— Jonathan Mattise (@JonathanMattise) June 24, 2020
Nashville Chancellor Ellen Hobbs Lyle earlier this month found the state’s position that fear of coronavirus infection was not a sufficient reason to request an absentee ballot presented an “unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”
When state election officials responded by creating a new category on the application form for those worried about COVID-19 rather than have it covered by the existing medical exception, Lyle called out the state for failing to adhere to her original order.
“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said in a recent hearing.
While the expedited appeal will speed up the state’s legal challenge, it appears unlikely the high court will decide the case before the Aug. 6 primary. Absentee ballots are already being sent out, and in-person early voting begins on July 17.
Slatery blasts judge for ruling allowing any voter to cast absentee ballot
State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)
State Attorney General Herbert Slatery issued an unusual statement criticizing a sitting judge for ruling against the state in a lawsuit over access to absentee ballots during the coronavirus pandemic.
Chancellor Ellen Hobbs Lyle on Thursday evening rejected what she called the the state’s “oddly skewed” calculations about what it would take to drop restrictions on who can vote by mail. Election officials had estimated that under the change, 100% of registered voters could cast absentee ballots and overwhelm the system. Tennessee has never had a turnout anywhere near so high, Lyle said in the ruling.
“It is yet another court decision replacing legislation passed by the people’s elected officials with its own judgment,” Slatery said in a statement, which didn’t indicate whether he might seek an appeal.
Here’s the full statement:
Nashville- This evening Davidson County Chancellor Ellen Hobbs Lyle ordered state government to abandon long standing requirements for in person voting.
Tennessee, like all states, must engage in a delicate balancing act: it must safeguard voters from COVID-19 exposure while ensuring that voters are not disenfranchised.
Tennessee’s election officials consulted with experts from the Tennessee Department of Health and county health departments to create a comprehensive COVID-19 election plan that conforms to the CDC’s guidance and makes Tennessee’s polling places safer than the general community.
The Court’s ruling, while rightly taking into account the safety of Tennessee’s voters and poll workers, failed to appropriately consider the extensive safety measures of the COVID-19 election plan, and, more importantly, gave little weight to the unanimous expertise of state and county election officials that hastily expanding absentee voting is impracticable and risks disenfranchising Tennessee voters.
The Court’s order has taken this important decision away from Tennessee’s state and county election experts and unnecessarily risks voter confusion, potential voter fraud, and election disruption.
“It is yet another court decision replacing legislation passed by the people’s elected officials with its own judgment, largely ignoring the practicalities of implementing such a decision, and doing so in the midst of a pandemic and budget crisis,” said Herbert H. Slatery III.
