redistricting

New TNJ alert: Never mind the constitution, here’s the new state Senate districts

The Tennessee Supreme Court building is seen in Nashville on Dec.8, 2021. (Erik Schelzig, Tennessee Journal)

The new print edition of the Tennessee Journal is out. Here is what’s in it:

— Supreme Court finds election commission deadlines are more important than pesky constitutional language on state Senate districts.

— Party politics: Lee slow walks (in)action on residency requirements for congressional candidates, dumping 5th District hot potato in lap of state GOP.

— From the campaign trail: 41 state House members get free pass to re-election, Anti-Skulduggery Act to kick in after Brenda Gilmore’s announces plans to withdraw candidacy, and Andy Ogles drops mayoral bid to focus on Congress.

Also: Scott Cepicky wants to tear public education down to the “bare bones,” Butch Spyridon denies “bait and switch” on football stadium, former Nashville Banner executive editor Joe Worley dies, and Todd Warner’s Dixieland band.

As always, access the your copy of the TNJ here.

Or subscribe here.

Redistricting lawsuit tests judicial philosophy on Tenn. Supreme Court

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)

When the applicants for a recent state Supreme Court vacancy were being interviewed, most went out of their way to declare a dedication textualism — the judicial philosophy focusing on the words as written in law books or the constitution rather than the intent behind why they were drafted that way.

The state’s highest court has agreed to take on state’s challenge of a recent ruling throwing out new state Senate maps because lawmakers ignored a provision in Tennessee Constitution that multiple districts within a single county must be consecutively numbered. Under the plan passed in January, Nashville would be home to districts 17, 19, 20, and 21 — meaning three of four seats would come up for election in the same year.

Here is what the Tennessee Constitution says on the matter:

In a county having more than one senatorial district, the districts shall be numbered consecutively.

A three-judge panel made up of two Republicans and one Democrat determined that while state Attorney General Hebert Slatery’s office had made a “detailed and nuanced” argument for why lawmakers had arrived at the House maps, the record did not include a sufficient explanation for why federal law or the U.S. Constitution “mandated the non-sequential numbering” of Senate districts.

Slatery’s office in a legal response to the lawsuit backed by the state Democratic Party argued the case should be thrown out for the plaintiff’s lack of standing, the absence of harm to voters, and because opponents had taken too long sue.

“The consecutive numbering of senatorial districts is solely an administrative distinction,” according to the state.

Supporters also argued past failures to consecutively number districts had gone unchallenged, though the historical record suggests otherwise.

The state Supreme Court has agreed to skip the intermediate Court of the Appeals and take up the case directly. Plaintiffs have until 1 p.m. Central on Monday to file their response the government’s motions to overturn the ruling and to lift an injunction on implementing the new maps while the challenge is underway.

UPDATE 1: The court’s newest justice is former associate solicitor general Sarah Campbell. She said during confirmation hearings she would recuse herself from cases involving legal matters she had personally bee involved in while at the AG’s office. A courts spokeswoman says Campbell did not participate in the legal advice given to Republican lawmakers during the redistricting debate.

Campbell previously recused herself from an appeal of the state’s school voucher law and by a man seeking consideration of early release from his life sentence for first-degree murder when he was 16 years old.

UPDATE 2: Plaintiffs have filed their motions. Here’s an excerpt:

In setting out the supposed parade of horribles that will flow from the injunction and touting the State’s compelling interest in the integrity of its election process, not once do Defendants acknowledge the bedrock requirement that the General Assembly must comply with the Tennessee
Constitution in enacting its voting district maps. This is a striking omission. Indeed, the State’s compelling interest in its election process is rendered meaningless if the State can run roughshod over the Constitution simply because fixing the problem is not convenient.

How soon we forget? Senate numbering was part of 1981 challenge

Senate Majority Leader Jack Johnson (R-Franklin) attends a floor session on March 16, 2020. (Erik Schelzig, Tennessee Journal)

Republican senators have argued it’s OK for them to have ignored constitutional provisions requiring consecutively-numbered districts in counties with more than one seat. Similar arrangements have occurred in the past, they said, and nobody challenged them. Not so, according to the historical record.

Following the passage of legislative redistricing plans in 1981, independent state Sen. Bill Jim Davis, an independent from Covington, sued to block the new maps. Among his allegations was that the plan had failed to consecutively number districts in counties with with more than one senator. The plan was thrown out in chancery court, but the judge reserved a ruling on the numbering issue because he had already determined the maps to be unconstitutional for other reasons.

The state Supreme Court took up an appeal, and ultimately lifted an injunction against holding elections using the new maps. But the court ordered legislature to come up with new maps that met constitutional muster — including over district numbers.

According to the opinion written by the late Justice Frank Drowota:

In addition to equal protection, preserving minority voting strength, and not crossing county lines, constitutional standards which must be dealt with in any plan include contiguity of territory and consecutive numbering of districts.

The state is appealing a ruling by a three-judge panel throwing out the new Senate maps approved in January. The Supreme Court on Friday agreed to skip the intermediate Court of Appeals in taking up the case.

State files appeal of order halting new Tennessee Senate maps

Senate Speaker Randy McNally (R-Oak Ridge) presides over the chamber on June 1, 2020. (Erik Schelzig, Tennessee Journal)

The Attorney General’s Office has filed a challenge to a three-judge panel’s order halting Tenenssee Senate redistricting maps with the state Court of Appeals. The state is also asking the court to lift an injunction on the current districts and reverse the decision to move the candidate filing deadline from today until May 5.

“The trial court’s injunction requires Defendants to immediately and drastically modify the already-ongoing procedures for elections,” the state said in its appeal. A motion for the Supreme Court to reach down and bypass the intermediate Court of Appeals is expected on Friday.

The state requests an expedited review of its appeal (though the plaintiffs will no doubt be sure to point out that the state successfully opposed efforts to expedite their case on the trial court level to go to summary judgement by March 9).

According the state:

The trial court’s decision to extend the qualifying deadline to May 5, 2022 throws this process into disarray. Now the withdrawal and disqualification deadlines are May 12, 2022, and the appeal deadline and state executive committee review deadline are May 19, 2022. The injunction leaves only 21 business days for the county election administrators to do everything that is necessary to have ballots ready to mail to military and overseas voters by the federal deadline.

The appeal plows similar ground as the state’s original response to the lawsuit, which includes arguments that the plaintiffs don’t have standing, won’t be harmed by the new maps, and waited too long to file their lawsuit.

Judges block state Senate redistricting plan, let House maps stand

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 issued an injunction against Tennessee’s new state Senate maps, but allowed the House plan to stand.

The panel in a 2-1 decision enjoined Senate elections from moving forward under the original timetable, ordering lawmakers to come up with new maps to fix defects within 15 days. If they can’t meet the deadline, the court will come up with its own interim plan. The order moves the candidate filing deadline for Senate candidates from Thursday to May 5.

The lawsuit backed by the state Democratic Party argued Senate Republicans failed to meet a requirement in the state constitution that multiple districts within single counties must be consecutively numbered.

The ruling came from Nashville Chancellor Russell Perkins and Bradley County Circuit Judge J. Michael Sharp. Jackson Chancellor Steven W. Maroney dissented.

As The Tennessee Journal has previously reported:

Under the new state Senate maps, Republican Sen. Ferrell Haile’s District 18 no longer extends from its Sumner County base into the eastern sliver of Nashville. GOP mapmakers instead added about 68,000 people from the city’s diverse Antioch area to neighboring Republican Sen. Mark Pody’s District 17 in Wilson County. The changes, Democrats note, mean the four Senate districts meeting in Metro Nashville are no longer sequentially numbered (the Democratic seats are the 19th, 20th, and 21st).

The Tennessee Constitution’s language is unambiguous when it comes to the topic: “In a county having more than one senatorial district, the districts shall be numbered consecutively.” The idea behind the requirement is that since odd and even numbered districts’ four-year terms are staggered, counties shouldn’t have a disproportionate number turn over at the same time.

Republicans followed the numbering requirement in neighboring Williamson County, which became too large to accommodate Senate Majority Leader Jack Johnson’s old District 23. After handing off a 32,000-person area to Sen. Joey Hensley’s District 28, Johnson’s seat was renumbered as the 27th. Similarly, Sen. Bill Powers’ District 22 in Montgomery County had 3,977 too many residents, so fellow Republican Sen. Kerry Roberts picked them up and had his district renumbered from 25 to 23.

When challenged about the disparity in the floor debate [in January], Johnson said there were previous examples of nonsequential districts when Democrats controlled the redistricting process. The Franklin Republican also warned that renumbering senators’ current districts could unconstitutionally shorten or extend their four-year terms. While other solutions are “not impossible, it’s quite impractical to meet that requirement,” Johnson said.

Rep. Jerry Sexton says he won’t run again

Rep. Jerry Sexton (R-Bean Station)

State Rep. Jerry Sexton, a Bean Station Republican best known for his efforts to declare the Bible the official book of Tennessee, isn’t running for another term in the House.

Sexton made the announcement at the Grainger County Lincoln Day Dinner, according to an attendee.

Sexton was drawn together with Rep. Rick Eldridge of Morristown as part of this year’s redistricting process, meaning the two incumbents would have had to run against each other in the Republican primary to try to hold on to the seat. But Eldridge was expected to have the advantage because his home county of Hamblen has a larger share of the population on the new district than Sexton’s Grainger County.

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

New TNJ edition alert: Redistricting lawsuit, oral arguments over vouchers, 5th District field grows

The latest edition of The Tennessee Journal is out. Here’s what’s in it:

— Democratic lawsuit claims GOP remap unlawful for county splits, district numbers.

— Likely swing vote silent in Supreme Court rehash of voucher arguments.

— Harwell, Winstead join 5th District race despite Trump endorsement.

— Slatery slams legislative proposal to move consumer advocate office.

— After pandemic-related stagnation, lobbying spending on rise in 2021.

Also:

Lee unveils details of proposed overhaul of school funding formula, Juneteenth holiday runs into House roadblock, HBO’s John Oliver mocks John Ragan, and a fee to access to the Sunsphere observation deck.

As always, access the your copy of the TNJ here.

Or subscribe here.

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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Democrat Stewart to retire from state House

Rep Mike Stewart (D-Nashville) speaks to reporters on the House floor in Nashville on May 1, 2019. (Erik Schelzig, Tennessee Journal)

State Rep. Mike Stewart, a former House Democratic caucus chair from Nashville, announced he is retiring from the General Assembly. Under initial Republican redistricting plans, Stewart was going to be drawn together with fellow Democrat John Ray Clemmons. But the majority party relented in a last-minute change, leaving the two incumbents in their own districts.

Here’s Stewart’s statement:

NASHVILLE — Today Mike Stewart announced in a Facebook Live appearance on the Tennessee Holler that he is not running for the state house seat he has held since 2008.  “I consider the opportunity to serve in the Tennessee General Assembly as one of the great honors of my life and I am grateful to all the people who have helped me along the way,” Stewart said.

Stewart intends to shift his political energy to protecting America’s democratic system, which is under serious internal attack for the first time since the 1850’s.  “We are facing a threat that I never expected to deal with during my lifetime; a former President and his followers attempting to invalidate a Presidential election and with it the system we use in this country to allow the people to choose their leaders.  I was one of those who mistakenly thought that President Trump was just being a sore loser when he made claims of election fraud; now it has been revealed that those claims were part of an orchestrated effort to cancel the 2020 election, thwart the will of the people and retain political control illegally.  It is the sort of thing that I expected to see only in other countries and in science fiction movies,” Stewart observed.

“As a lawyer and a person who has been deeply involved in elections for many years, I hope to do what I can to protect the democratic process in the upcoming 2022 and 2024 elections,” Stewart observed.  Specifically, I will be working with leaders around the nation to ensure that polling places are adequately monitored to prevent false claims of fraud, working to ensure that state legislatures are not controlled by anti-democratic leaders, and working to develop legal strategies to check those who continue to make false statements undermining our system of elections.”  

“Many citizens I’m talking to are feeling overwhelmed and defeated.  They grew up in the world’s most stable and admired democracy, and now see a former President, as well as Senators and Congressmen, debasing themselves on national television repeating claims they know are entirely untrue.  I plan to do everything I can to ensure that such people are not allowed to tamper further with our sacred system of elections so that the people have a fair opportunity to repudiate such irresponsible and, ultimately, immoral leadership.  Many are talking about the threat; it is time to develop concrete plans to respond to it on a state-by-state level.”

Stewart added, “I’d like to close this chapter by saying it has been a privilege to serve the people in House District 52 and I intend to continue fighting for you, as well as the rest of the country, in my new role.”