lawsuit

Read the lawsuit filed against congressional residency requirements in Tennessee

The House meets at the state Capitol in Nashville on June 1, 2020. (Erik Schelzig, Tennessee Journal)

A lawsuit has been filed in federal court in Nashville seeking to prevent a state law from going into effect that would impose a three-year residency requirement for congressional candidates in Tennessee. The challenge was filed on behalf of three residents who say they want to vote for Republican Morgan Ortagus in the the open 5th District race. Ortagus has been endorsed by former President Donald Trump, but state lawmakers have chafed at her candidacy because she only moved to the state a year ago.

The case has been assigned to U.S. District Judge Eli Richardson, who was appointed to the bench by Trump. The lawsuit was filed by the Washington, D.C., law firm Dickinson Wright PLLC.

As frequent offenders when it comes to typos, we wouldn’t ordinarily make a point of highlighting the mistakes of others, but misspelled words in the lawsuit are particularly jarring given their central nature to the arguments presented. They include “Tennesse,” “Represenatives,” “unconstitional” “Repulican,” “impermissably,” “Consitution,” “Congressionl,” and “critreria.” They are replicated within the full text of the complaint below:

BARBRA COLLINS, AMY C. DUDLEY and DONALD J. SOBERY, PLAINTIFFS v. STATE OF TENNESSEE, and TRE HARGETT in his official capacity as Tennessee Secretary of State, DEFENDANTS.)

COMPLAINT

Plaintiffs Barbra Collins (“Collins”), Amy C. Dudley (“Dudley”), and Donald J. Sobery (“Sobery”) (collectively, “Plaintiffs”), file this Complaint against Defendants State of Tennessee (the “State”) and Tre Hargett (“Hargett”), in his official capacity as Tennessee Secretary of State, (collectively “Defendants”), and allege as follows:

NATURE OF THE ACTION

1. This is a civil action seeking damages and declaratory relief arising under the Qualification Clause of the United States Constitution. U.S. Const. Art. 1 § 2; U.S. Const. Art. 1 § 5. This action challenges the constitutionality of Tennessee Senate Bill 2616/House Bill 2764 (the “Provision”) that imposes an impermissible residency requirement on candidates running for United States Congress Specifically, the Provision requires that a candidate running for United States Congress reside in Tennessee, as well as within the congressional district they seek to represent, for at least three years in order to appear on the primary ballot as a candidate.

2. This Provision will become law unless Governor Bill Lee vetoes the legislation.

3. Under the challenged Provision, an otherwise constitutionally qualified candidate for whom Plaintiffs intend to vote in the Republican primary for the Fifth Congressional District, will be prohibited from running because she has not lived in Tennessee for at least three years. The Provision blatantly violates Article I of the United States Constitution (the “Constitution”) because the Constitution delineates the only qualifications necessary to serve as a member of the U.S. House of Representatives, and vests with the House of Representatives the exclusive authority to judge the qualifications of its own members.

4. Plaintiffs seek damages and a declaration that the Provision is unconstitutional so that all qualified candidates who wish to run for Congress in the August 4, 2022 primary election may do so.

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3-judge panel: No need to rush on redistricting lawsuit

Rep. John Mark Windle (D-Livingston), left, walks to look at a proposed House redistricting map on Dec. 17, 2021. (Erik Schelzig, Tennessee Journal)

A three-judge panel has declined a request by the plaintiffs in a Democratic Party lawsuit to expedite proceedings. The judges said they weren’t convinced they had the authority to hurry up the case and that “expediting these proceedings as requested would not allow the important constitutional questions to be fully and meaningfully considered and adjudicated on the merits.”

The lawsuit claims the state House maps could have been drawn with fewer than 30 split counties and that the Senate plan violated a constitutional requirement for districts to be consecutively numbered in Nashville.

Here’s the order:

This reapportionment case was filed on February 23, 2022. Plaintiffs Akilah Moore, Telise Turner, and Gary Wright are suing Defendants Governor Bill Lee, Secretary of State Tre Hargett, and Tennessee Coordinator of Elections Mark Goins in their official capacities, claiming that the State House and Senate maps are unconstitutionally drawn. Plaintiffs’ unverified Complaint seeks declaratory and injunctive relief. On March 1, 2022, the Tennessee Supreme Court entered an Order designating the undersigned as the Three Judge Panel (“Panel”) to hear this case.

On March 2, 2022, Plaintiffs filed Plaintiffs’ Motion to Set Hearing and Expedited Briefing Schedule on Plaintiffs Motion for Summary Judgment, or in the Alternative, for Expedited Trial (“Motion to Expedite”). On March 3, 2022, Defendants filed Defendants’ Response in Opposition to Plaintiffs’ Motion to Set Hearing and Expedited Briefing Schedule on Plaintiffs’ Motion for Summary Judgment, or in the Alternative, for Expedited Trial (“Response in Opposition”). On March 4, 2022, Plaintiffs filed Plaintiffs’ Reply in Support of Plaintiffs’ Motion to Set Hearing and Expedited Briefing Schedule on Plaintiffs’ Motion for Summary Judgment, or in the Alternative, for Expedited Trial (“Plaintiffs’ Reply”). After conferring, the Panel entered an Order on March 3, 2022, setting Plaintiffs’ Motion to Expedite for a telephonic hearing on March 7, 2022 at 2:30 p.m.

After considering the Motion to Expedite, the record, and the arguments of counsel for the parties, the Panel respectfully DENIES Plaintiffs’ Motion to Expedite on the following grounds:

1.            The Panel was not convinced that it had authority to expedite the proceedings in the fashion requested in the motion.

2.            Given all the attendant circumstances, including Defendants’ preliminary estimate that they needed to develop expert proof to defend Plaintiffs’ constitutional challenges and the possibility that discovery might be necessary, the Panel concludes that expediting these proceedings as requested would not allow the important constitutional questions to be fully and meaningfully considered and adjudicated on the merits.

IT IS SO ORDERED.

/Signed/

RUSSELL T. PERKINS, Chief Judge

J. MICHAEL SHARP Judge

STEVEN W. MARONEY, Chancellor

Read the Democratic lawsuit seeking to halt the GOP’s redistricting plan

Rep. John Mark Windle (D-Livingston), left, walks to look at a proposed House redistricting map on Dec. 17, 2021. (Erik Schelzig, Tennessee Journal)

A lawsuit filed on behalf of Tenenssee Democrats seeks to to halt the Republican redistricting plan for state House and Senate.

“From the very beginning, we doubted that the Tennessee redistricting process would be open and fair,” said state Democratic Party Chair Hendrell Remus. Unfortunately, Republicans also violated the law while gerrymandering our state. We’re proud to be supporting these individuals in their efforts to ensure equal representation for every Tennessean.”

Read the complaint here:

IN THE CHANCERY COURT OF TENNESSEE FOR THE TWENTIETH JUDICIAL DISTRICT

AKILAH MOORE, TELISE TURNER, and GARY WYGANT v.

BILL LEE, Governor, TRE HARGETT, Secretary of State, MARK GOINS, Tennessee Coordinator of Elections; all in their official capacity only)

COMPLAINT

Over the course of approximately two weeks in January 2022, the Tennessee General Assembly engaged in an unprecedented reapportionment of voters, redrawing state House and Senate maps to ensure maximum partisan advantage for the incumbent Republican supermajority. Redistricting decisions were made largely out of view of the public and largely without input from representatives of the minority party. These one-sided decisions denied voters any real opportunity to participate in – much less stop – fundamental changes to the process through which Tennessee voters choose their elected representatives.

Crucially for purposes of this lawsuit, the Tennessee General Assembly supermajority and Governor Bill Lee ignored the plain, unambiguous text of the Tennessee Constitution in order to enact their partisan redistricting scheme. They did so in two ways: first, by dividing more counties than necessary to create House districts with roughly equal populations, and second, by numbering state senatorial districts nonconsecutively. These actions both contravene the language of the Tennessee Constitution.

Regardless of the supermajority’s motives, the Tennessee General Assembly’s and Governor’s redistricting maps are facially unconstitutional according to the text of our state’s founding document. The above-named Plaintiffs – on behalf of all voters of Tennessee – file this action seeking a swift declaration and injunction requiring that the Tennessee General Assembly and Governor immediately adopt maps that conform with the Tennessee Constitution.

INTRODUCTION

1. This lawsuit challenges the Tennessee General Assembly’s recent reapportionment of the Tennessee House of Representatives and Tennessee Senate for violating two provisions of the Tennessee Constitution.

2. First, the legislature’s reapportionment of the House of Representatives divides more counties than necessary to ensure that all districts have roughly equal populations.

3. Second, the legislature’s reapportionment of the Senate fails to consecutively number the four senatorial districts included in Davidson County.

4. County Divisions: The Tennessee Constitution prohibits legislators from dividing individual counties when creating multi-county legislative districts, and the Fourteenth Amendment to the federal Constitution requires the creation of legislative districts with roughly equal populations. The Tennessee Supreme Court has reconciled these two provisions by holding that the General Assembly must create as few county-dividing districts as is necessary to ensure that all legislative districts contain roughly equal populations.

5. The General Assembly’s reapportionment of the House of Representatives violates this constitutional mandate by creating significantly more county-dividing House districts than necessary to maintain districts with roughly equal populations. The newly-enacted House apportionment plan crosses 30 county lines, despite the fact that significantly fewer county divisions could have been achieved while also maintaining roughly equal populations in each district. The legislative history illustrates this constitutional violation, as one alternate map submitted to the legislature contained just 23 county divisions, while also achieving closer population parity than the plan that the General Assembly approved. The General Assembly’s failure to reduce county divisions in its House plan violates the Tennessee Constitution.

6. Senate District Numbering: When a single county contains more than one senatorial district, the Tennessee Constitution requires the districts in that county to be numbered consecutively. This requirement ensures that half of a large county’s senatorial districts will be on the ballot in presidential election years and half of a large county’s senatorial districts will be on the ballot in gubernatorial election years, given that even-numbered districts are on the ballot in presidential election years and odd-numbered districts are on the ballot in gubernatorial election years.

7. The General Assembly’s new Senate map creates four senatorial districts within Davidson County, including three districts that are entirely within Davidson County and a fourth district that includes a portion of Davidson County along with all of Wilson County. The General Assembly numbered these districts 17, 19, 20, and 21, ensuring that three districts will be on the ballot during gubernatorial elections and just one district will be on the ballot during presidential elections. Before enacting this map, an amendment was proposed that would have corrected this deficiency by properly numbering Davidson County’s senatorial districts. The General Assembly rejected this amendment.

8. The General Assembly’s Senate apportionment map violates the Tennessee Constitution’s express requirement that senatorial “districts shall be numbered consecutively” in counties having more than one senatorial district. Tenn. Const. art. II, Sec. 3.

9. These constitutional violations can be, and should be, corrected before the August 2022 legislative primary elections. This Court should provide the General Assembly with fifteen days to enact new apportionment plans that correct these violations, as required by T.C.A. § 20- 18-105(a). If the General Assembly fails to enact such new maps by the Court’s deadline, the Court should then “impose an interim districting plan,” as authorized by T.C.A. § 20-18-105(b). Such interim districting plan would only apply to the 2022 legislative election cycle. Id.

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Tennessee sportsbook sues to undo suspension by Lottery

Tennessee Action 24/7 is asking a court to undo a first-in-the-nation decision by the state Lottery to suspend its sportsbook license due to fraud and money laundering, the Associated Press reports.

Action 24/7, which is run by executives of short-term lender Advance Financial, is questioning the regulatory process used to issue the suspension.

According to Lottery investigator Danny DiRienzo, the company self-reported suspicious activity on March 17, which was several days after the alleged fraud took place. In one instance, he said, a player made a $10 deposit into his betting account, which was then followed by 124 deposits with seven cards in as many different names. The account holder then withdrew money without placing many bets.

“It is serious, serious criminal activity, probably in the tens if not hundreds of thousands of dollars worth of damages done with multiple real individuals and business victims,” DiRienzo said during an emergency meeting of the Lottery board on Friday.

According to the the lawsuit, company representatives wanted to be heard during the meeting, but the panel “refused to hear their position.”

The lottery’s actions were “an inadequate or sometimes complete lack of review of the evidence, an unwillingness to hear Action’s side of the story, and a rush to judgment, ultimately resulting in a destruction of Action’s business,” according to the lawsuit.

Tennessee Action said the total number of fraudulent deposits totaled about $37,400, of $14,700 has been recovered.

Second lawsuit seeks to block school voucher law

Another lawsuit has been filed in Nashville Chancery Court aiming to block Gov. Bill Lee’s signature school voucher law from going into effect.

The lawsuit was filed behalf Nashville and Shelby County parents by lawyers representing the state chapter of the American Civil Liberties Union, the Southern Poverty Law Center, and the Education Law center.

A previous lawsuit was filed by the governments of Nashville and Shelby County.

Here’s the press release announcing the latest litigation:

Nashville, Tenn., March 2 – Public school parents and community members in Nashville and Memphis today filed suit in the Chancery Court for Davidson County challenging the Tennessee Education Savings Account (ESA) voucher law as an unconstitutional diversion of public education funding to private schools.

In the lawsuit, McEwen v. Lee, the plaintiffs contend that diverting millions of dollars intended for Memphis and Nashville public schools to private schools violates public school students’ rights to the adequate and equitable educational opportunities guaranteed under the Tennessee Constitution. The lawsuit also charges that the voucher law violates the constitution’s “Home Rule” provision, which prohibits the state legislature from passing laws that apply only to certain counties.

The Tennessee voucher program would siphon off over $7,500 per student – or over $375 million in the first five years – from funds appropriated by the General Assembly to maintain and support the Metro Nashville Public Schools (MNPS) and Shelby County (Memphis) Schools, according to the lawsuit. The controversial state law could go into effect as early as the 2020-21 school year.

The voucher law passed by a single vote in May 2019, over the objections of legislators from Shelby and Davidson Counties, as well as others.

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Nashville and Shelby County sue to block school voucher law

Gov. Bill Lee delivers his second State of the State address in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

The governments of Metropolitan Nashville and Shelby County have filed a lawsuit seeking to block Tennessee’s school voucher bill from going into effect.

The lawsuit filed in Nashville Chancery Court on Thursday claims the law violates home rule provisions of the state constitution by “unilaterally and arbitrarily” having the Education Savings Account, or ESA, Atc affect only students in Nashville and Shelby County.

“The General Assembly cannot impose its will on only two counties without their approval,” according to the lawsuit. “If the legislature believes that education savings accounts are good policy, it may pass a bill of general application so that all counties share the purported benefits of the program. If the legislature prefers to limit the bill’s application to two counties, it must include a local-approval option and hope the program’s merits will convince the affective counties to choose to participate. The ESA Act does neither and is the very model of such prohibited legislation.”

Lawmakers narrowly passed the voucher last year after the Lee administration agreed to back away from initial efforts to have the bill apply to the state’s four largest counties. Lawmakers from other parts of the state felt so strongly about excluding (or “protecting,” as some put it) their districts from the bill that they included a provision stating that if a judge were to rule that limiting the bill to just Nashville and Shelby County were unconstitutional, the whole program would be canceled rather than have it apply statewide.  The “reverse severability clause” has become a major focus of efforts to defeat the voucher legislation in court.

Supporters of the legal challenge point to a  2012 ruling by U.S. District Judge Hardy Mays that struck down a state law allowing six Shelby County municipalities to hold referendums on creating new school systems. Mays, a onetime chief of staff to former Republican Gov. Don Sundquist, found the legislation paving the way for those votes violated the state constitution because it affected just one county.

In examining the legislative history of the bill, Mays determined it “never would have passed had it not been intended to apply only to Shelby County.” Opponents of the voucher bill say the same applies to last year’s legislation, with the caveat that the measure also included low-income students enrolled in Nashville.

Mays noted in his 2012 ruling that the state Supreme Court had upheld the power of the General Assembly to have laws apply to a certain class of counties (e.g., those with a population of 300,000 or more), but only if it was based on “reasonable, rational and pragmatic rules [of construction] as opposed to theoretical, illusory, or merely possible considerations.” The judge determined that the municipal school bid had been passed with “a wink and a nod” about its intentions.

The voucher bill didn’t use population brackets to tie the law Nashville and Shelby County, instead basing eligibility on how many schools have fallen among the state’s worst in the past — a static measure, meaning no other district could join the ranks of voucher eligibility in the future.

Gov. Bill Lee in his State of the State address this week pledged to press ahead with implementing the voucher law.

“We created the Tennessee Education Savings Account Program, which will serve low-income students in districts with the highest number of low-performing schools,” he said. “Disruption is hard and sometimes controversial. But we cannot expect extraordinarily different outcomes without extraordinarily different inputs, so I’m proud of these initiatives, and I look forward to their success.”