Slatery signs onto GOP AGs’ letter criticizing congressional voting bill
Tennessee Attorney General Herbert Slatery has signed on to a letter urging the defeat of a bill by congressional Democrats they say would “federalize state elections and impose burdensome costs and regulations on state and local officials.”
The letter is written by Indiana AG Todd Rokita and joined by 19 others including Slatery.
Here’s the full text (footnotes omitted):
Continue readingDear Madame Speaker, Minority Leader McCarthy, Majority Leader Schumer, and Minority Leader McConnell:
As the chief legal officers of our states, we write regarding H.R.1, the For the People Act of 2021 (the “Act”) and any companion Senate bill. As introduced, the Act betrays several Constitutional deficiencies and alarming mandates that, if passed, would federalize state elections and impose burdensome costs and regulations on state and local officials. Under both the Elections Clause of Article I of the Constitution and the Electors Clause of Article II, States have principal—and with presidential elections, exclusive— responsibility to safeguard the manner of holding elections. The Act would invert that constitutional structure, commandeer state resources, confuse and muddle elections procedures, and erode faith in our elections and systems of governance. Accordingly, Members of Congress may wish to consider the Act’s constitutional vulnerabilities as well as the policy critiques of state officials.
First, the Act regulates “election for Federal office,” defined to include “election for the office of President or Vice President.”1 The Act therefore implicates the Electors Clause, which expressly affords “Each State” the power to “appoint, in such Manner as the Legislature thereof may direct,” the state’s
allotment of presidential electors, and separately affords Congress only the more limited power to “determine the Time of chusing the Electors.” That exclusive division of power for setting the “manner” and “time” of choosing presidential electors differs markedly from the collocated powers of the Article I Elections Clause, which says that both States and Congress have the power to regulate the “time, place, and manner” of congressional elections. That distinction is not an accident of drafting. After extensive debate, the Constitution’s Framers deliberately excluded Congress from deciding how presidential electors would be chosen in order to avoid presidential dependence on Congress for position and authority. Accordingly, the Supreme Court, in upholding a Michigan statute apportioning presidential electors by district, observed that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the [state] legislature exclusively to define the method” of appointment of electors. McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis added). The exclusivity of state power to “define the method” of choosing presidential electors means that Congress may not force states to permit presidential voting by mail or curbside voting, for example.
Vote on removal of Forrest bust delayed due to weather
Thursday was supposed to be the last chance for supporters and opponents of moving the Nathan Bedford Forrest bust out of the state Capitol to make their cases to the Tennessee Historical Commission. But the weather has intervened.
The panel decided to punt the discussion about the former Confederate general, slave trader, and early Ku Klux Klan leader until March 9. The delay could give Attorney General Herbert Slatery more time to decide whether to give a rare public legal opinion on whether Gov. Bill Lee’s administration skipped a step in the extensive process for changing or moving historical monuments.
While many were planning to attend the meeting via teleconference, an administrative law judge presiding over the hearing, attorneys, and witnesses were not able to make it to downtown Nashville due to treacherous road conditions, The Tennessean reported.
Slatery joins states’ legal effort to overturn presidential election
Tennessee Attorney General Herbert Slatery is joining an amicus brief supporting a Texas lawsuit seeking to overturn the result of the presidential election to sway it in President Donald Trump’s favor.
“The Tennessee Attorney General’s Office has consistently taken the position that only a State’s legislature has the authority to make and change election laws,” Slatery said in a statement. “This Office pressed that argument in cases defending Tennessee’s election laws against pandemic-related challenges and in amicus briefs in cases involving similar challenges in other courts. This is not something new.”
Slatery’s office this year fought efforts to allow anyone afraid of contracting COVID-19 to cast absentee ballots. The state lost at the chancery court level, allowing the looser restrictions on mail-in balloting to take effect for the primary. The state Supreme Court later overturned the the decision, but only after the AG’s office reversed course to say anyone with an underlying health condition making them more susceptible to COVID-19 (or anyone living with someone who did) could cast absentee ballots.
A Trump-appointed federal judge also ruled Tennessee couldn’t enforce its rules this year requiring first-time voters who registered online to cast their ballots in person.
Senate Minority Leader Jeff Yarbro (D-Nashville) called Slatery’s move a “low point in the history of the office of the Tennessee Attorney General. “
“Here’s the context: The Attorney General in Texas is under FBI investigation and widely assumed to be fishing for a pardon” Yarbro said on Twitter. “Now the Tennessee Attorney General is spending Tennessee resources to help?”
Renovated home of Attorney General’s office scorched by burning portable toilet
The renovated building that is home to Attorney General Herbert Slatery and the protective detail of the Tennessee Highway Patrol suffered exterior damage this week when an outdoor portable toilet caught on fire.
Slatery and his staff had just returned to the John Sevier Building after a $54 million update of the facility that first opened in 1940.
Barriers erected by construction crews had just been removed from outside the building last week. Officials are investigating what caused the fire in the portable toilet. The THP’s move back into their space will be delayed because most of the damage was concentrated near their space.
The fire caused mostly superficial smoke and water damage, though some windows also appeared to have been broken. The damage is expected to be covered by insurance, so it won’t add to the renovation price tag.
A truck belonging to Gov. Bill Lee’s plumbing and HVAC company was staged outside the Sevier Building in the aftermath of the fire. The governor has said the Lee Co. would no longer do work for state government following his election in 2018. A spokeswoman said this week the company is not involved in state business.
House drops proposal to have AG prosecute protest crimes, cost per conviction projected at $500K
The state House has dropped a proposal to give the state Attorney General the power to prosecute crimes committed by protesters.
The Daily Memphian reports House Majority Leader William Lamberth (R-Portland) dropped the provision after hearing concerns from the District Attorneys General Conference.
Under the bill enhancing penalties for various unruly behavior, the Tennessee Bureau of Investigation could be called in.
Attorney General Slatery Herbert Slatery’s office said the legislation reflects a “widely held sentiment that laws be enforced” if state prpoerty is damaged or law enforecement agents are injured.
“If the General Assembly wants us to take on additional responsibilities, there will be a number of steps to consider. If requested, we will obviously engage in those discussions,” said AG spokeswoman Samantha Fisher.
The fiscal note on the bill enhancing penalties for illegal camping on state property to a Class E felony places the cost for each conviction at more than $500,000. But nobody has been convicted under the existing illegal camping laws over the last five years, leading Fiscal Review to deem the impact to be “not significant.”
UPDATE: The Senate Judiciary Committee on Wednesday amended its version of the bill to decrease the severity of the crime from a felony to a misdemeanor.
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.
Asking for permission after the fact? State seeks judge’s OK to keep taking voucher applications
Gov. Bill Lee speaks at an event in Nashville on April 2, 2019. (Erik Schelzig, Tennessee Journal)
Gov. Bill Lee on Tuesday declared the state would plow ahead with laying the groundwork for school vouchers while appealing a judge’s ruling that the program is unconstitutional. The governor’s declaration raised eyebrows in legal circles because Nashville Chancellor Anne Martin had explicitly enjoined the state from “implementing and enforcing” the Education Savings Account Act.
Attorney General Herbert Slatery’s office appears to be trying gain some post hoc approval for the governor’s plan to keep encouraging parents to apply for the program while the state appeals the decision. In a court filing submitted to Martin at 10:21 p.m. Tuesday, the defendants “respectfully move to stay the injunction ordered by this Court,” WPLN-FM’s Sergio Martínez-Beltrán reports.
“The trial court’s injunction preventing state officials from implementing and enforcing the ESA Program will result in irreparable injury,” according to the filing. “… Participating students and parents who have begun the application process for participation in the ESA Program are now facing the prospect of returning to underperforming schools.”
Left unsaid in the filing is that nothing in the voucher law limits eligibility to students attending failing schools. The law allows families meeting income requirements whose children attend any public school in Nashville and Shelby to apply.
The Lee administration has pressed ahead with launching the program this fall, much to the consternation of Republican leaders like House Speaker Cameron Sexton. While the controversial state law allows the governor to launch the program this year, it doesn’t actually require the program to go online until the academic year starting in August 2021.
The state’s filing argues that putting a hold on the school voucher program while the appeals are pursued would negatively affect the families of more than 2,500 students who have already applied and could lead private schools to lay off teachers they had hired in anticipation of growing their enrollment.
AG: Governor’s emergency powers preempt locals
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)
The governor’s emergency powers trump the authority of local health departments to issue restrictions in response to the coronavirus pandemic, according to a rare legal opinion issued by state Attorney General Herbert Slatery.
The opinion was requested by Senate Speaker Randy McNally (R-Oak Ridge) and House Speaker Cameron Sexton (R-Crossville)
It’s just the seventh legal opinion issued by Slatery’s office this year. Here it is:
Question
Because of the COVID-19 health crisis, the Governor has exercised his authority to declare a state of emergency in Tennessee and to issue a series of executive orders governing the State’s emergency response to the COVID-19 pandemic. Do these executive orders serve as the exclusive regulation of the State’s emergency management in response to the pandemic, and to what extent, if any, may local governmental entities take actions or issue orders that conflict with the Governor’s executive orders?
OPINION
The General Assembly has vested the Governor with exclusive responsibility and authority to assume control over all aspects of the State’s response to an emergency such as the COVID-19 pandemic. Tenn. Code Ann. § 58-2-107(a)(1). Because the executive orders that the Governor issues pursuant to that authority have the force and effect of law, Tenn. Code Ann. § 58-2- 107(a)(2), the Governor’s directives in response to an emergency supersede and preempt any action taken by political subdivisions of the State.
Absent an express delegation of power by the Governor, local governmental entities may not take actions that are either more restrictive or less restrictive with respect to the subjects addressed in the Governor’s executive orders governing the State’s emergency response to COVID-19. Such action would be at cross purposes with the Governor’s orders, which are the law of the State, and would constitute an impermissible legal conflict.
Just as the Governor may exercise his authority under Tenn. Code Ann. § 58-2-107(a)(1) to delegate to a local governmental entity or to the local health department “such powers as the governor may deem prudent,” the Governor may exercise his emergency powers to expressly authorize, or recognize the authority of, county health departments to take action that may otherwise be inconsistent with his executive orders. Such a delegation of authority may be revoked or modified at any time, § 58-2-107(a)(2), and, absent an express delegation or authorization by the Governor, the local health department or other local governmental entity may not take any action inconsistent with the Governor’s executive orders.
ANALYSIS
Because of the COVID-19 health crisis, the Governor has exercised his authority to declare a state of emergency in Tennessee and to issue a series of executive orders governing the State’s emergency response to the COVID-19 pandemic.[1] The executive orders are all aimed at diminishing the spread of COVID-19 and ensuring that the State maintains the resources needed to protect the health and well-being of its citizens. Among other provisions, the orders currently require all persons in Tennessee to stay at home unless engaging in essential activity or essential services, and they place restrictions on social gatherings and business operations. Some local governmental entities have issued orders that are either more restrictive or less restrictive than the Governor’s executive orders.
The Governor’s power to issue these executive orders is grounded in the broad grant of authority—a responsibility and authority that the General Assembly has vested solely in the office of the governor—to assume control over all aspects of the State’s response to an emergency such as the COVID-19 pandemic:
The governor is responsible for addressing the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the governor . . . may assume direct operational control over all or any part of the emergency management functions within this state The governor is authorized to delegate such powers as the governor may deem prudent.
Tenn. Code Ann. § 58-2-107(a)(1) (emphasis added). To exercise this exclusive authority “the governor may issue executive orders, proclamations, and rules and may amend or rescind them. Such executive orders, proclamations, and rules have the force and effect of law.” Id. § 58-2- 107(a)(2)(emphasis added). See also Tenn. Code Ann. § 58-2-107(b)(1)(A) (authorizing issuance of executive orders to implement governor’s authority).
An “emergency” is defined expressly to include “disease outbreaks and epidemics.” Tenn. Code Ann. § 58-2-101(7). “Emergency management” is defined broadly to cover all stages of dealing with an emergency; it “means the preparation for, the mitigation of, the response to, and the recovery from emergencies and disasters.” Tenn. Code Ann. § 58-2-101(8).[2]
To effectuate emergency management, the General Assembly has given the Governor a broad range of powers. The Governor has the power, among others, to: suspend laws prescribing the conduct of state business; utilize all available resources of the state government and of each political subdivision; commandeer private property; direct and compel an evacuation; control ingress and egress to and from an emergency area; control the movement of persons; control the occupancy of premises; make provisions for temporary emergency housing; and take measures concerning the conduct of civilians. Tenn. Code Ann. § 58-2-107(e).
By giving the Governor “direct operational control over all or any part of the emergency management functions within this state,” the General Assembly has vested in the Governor the exclusive authority to wield these powers to control and limit the acts of political subdivisions in an emergency. Further, when the Governor invokes his emergency management powers, all the “officers and agencies of the State and political subdivisions . . . shall cooperate with and extend their services and facilities to the Tennessee Emergency Management Agency,[3] as it may require.” Tenn. Code Ann. § 58-2-107(h) (emphasis added). In short, the General Assembly clearly intended the Governor’s emergency management powers to be exclusive and to override any action taken by political subdivisions of the State.
Tennessee AG joins effort to block Equal Rights Amendment
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)
Tennessee Attorney General Herbert Slatery is joining four counterparts in Republican states in trying to block an effort to revive the Equal Rights Amendment to the U.S. Constitution.
Virginia lawmakers last month ratified the amendment stating that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Supporters argue that Virginia is the 38th state to approve of the language, meeting the requirement that three-fourths of states agree to amend the Constitution.
Opponents point to the a ratification deadline set by Congress was 1979 and that it was later extended only to 1982. Those deadlines are unenforceable, according to a lawsuit filed by Virginia, Illinois, and Nevada.
Tennessee lawmakers approved the amendment in 1972, but voted to rescinded their action in 1974.
Read the release from Slatery’s office after the jump:
About that whole voucher tax thing…
Gov. Bill Lee speaks to reporters on March 19, 2019, about his proposal to introduce an education savings account program in Tennessee. (Erik Schelzig, Tennessee Journal)
The revelation that Tennessee’s new school vouchers could well be considered taxable income by the IRS set off a furor at the statehouse among both supporters and opponents of the “education savings account” law.
Education Commissioner Penny Schwinn’s statement to the House Finance Committee appeared fairly unequivocal when asked during a Monday hearing: “My understanding is this is taxable, yes.”
Voucher supporters were quick to pounce, noting that the law includes a provision that states the more than $7,300 vouchers would not be considered income. But the caveat there is the state can only write legislation affecting Tennessee law. The IRS might have different ideas.
Schwinn told reporters she had come to that determination in consultation with state Attorney General Herbert Slatery’s office. But a spokeswoman for the AG said his office would not be in a position to weigh in on federal tax matters.
Schwinn’s spokeswoman later issued a new statement seeking to clarify matters:
The Commissioner’s comments at the budget hearing today were intended to reflect the possible need for the program’s filing and issuance of federal information reporting returns rather than taxability. We are continuing to work through the details of what will be required for ESA program implementation.
So where does that leave things for parents concerned about being hit with a big tax bill if they take the vouchers? It remains unclear. And now Democratic lawmakers are (perhaps inevitably) asking for a delay in the bill’s implementation so it can all be figured out.
