Davidson County Election Commission Meets Today to Finalize Date of Election to Select a New Mayor

The Davidson County Election Commission will hold a special called meeting today, Friday, at 3:30 p.m. to finalize the date of the election to select a new mayor. The resignation of former Mayor Megan Barry prompted the special meeting.

The stated purpose of the meeting is to add the office of Mayor to the August 2nd, 2018 election ballot, the date of the Tennessee primary elections for state and federal offices, and the Davidson County general election “for Chancery Court Part 2, county clerk, criminal court clerk, Criminal Court Division 2, General Sessions Court Division 3, General Sessions Court Division 10, juvenile court clerk, public defender, register of deeds, sheriff, and trustee.”

Local attorney James Roberts, however, says holding the election to select a new mayor on August 2 will be a violation of Tennessee law.

Roberts wrote a letter on Thursday to the Davidson County Election Commission in which he stated that the August 2 date to elect a new mayor is not in compliance with Tennessee law. In order to be in compliance with the law, Roberts wrote, the election must be held either on May 1, the date of the general election for the $9.2 billion mass transit referendum, or a date between May 21 and May 26.

Roberts appears to consider the mass transit referendum a general election that takes place on the same day as the local municipal judge and sheriff primary election.

Interestingly, when the Metro Council decided to hold the mass transit referendum, they gave supporters and opponents less than 90 days to fund and organize their campaigns for and against the proposal before the election.

On February 6, “The council voted overwhelmingly 34-2 to give final approval to add Mayor Megan Barry’s transit referendum to the local primary election ballot on May 1,” the Tennessean reported.

Here is a  brief summary of the governing Tennessee law and the Charter of the Metropolitan Government of Nashville and Davidson County, Tennessee as it relates to the date of an election to select a new mayor when the elected mayor resigns from office prior to the completion of his or her term:

Sec. 5.05 of the Charter of the Metropolitan Government of Nashville and Davidson County, Tennessee states:

In the event the office of mayor becomes vacant, the vice mayor shall serve as mayor and be compensated as such until the vacancy is filled at a special election or at a general election, as provided in section 15.03 of this Charter.

Section 15.03 of Charter of the Metropolitan Government of Nashville and Davidson County, Tennessee states:

There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor and in the office of district council member whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election. The special election shall be ordered by the county commissioners of elections and they shall give notice thereof as provided by Tennessee Code Annotated section 2-14-105.

When a vacancy exists in the office of vice mayor or in the office of council member-at-large, said office shall remain vacant until the next general election at which time such vacancy shall be filled; however, in no event shall a special election be held to fill such vacancy.

Section 2-14-102 of Tennessee Code Annotated states:

(a) Special elections shall be held not less than seventy-five (75) days nor more than eighty (80) days after the officer or body charged with calling the election receives notice of the facts requiring the call. An election for an office shall be held on the same day in every county in which it is held. (Emphasis added.)

(b)(1) If it is necessary to hold a special election to fill a vacant seat in the United States house of representatives, a vacancy in a county office, or a vacancy in any municipal office, and the date for such election, as established under subsection (a), falls within thirty (30) days of an upcoming regular primary or general election being held in that district, the governor, or the county election commission, as specified in § 2-14-103, may issue the writ of election for the special election for the date which will coincide with the regular primary or general election. (Emphasis added.)

(b) (2) If the date of the election is adjusted, as provided in subdivision (b)(1), all other dates dependent on the date of election shall be adjusted accordingly, and any filing of candidacy, or qualifying petitions, financial statements, or other acts shall be timely done if performed in accordance with the revised dates.

Section 2-14-105 of the Tennessee Code Annotated states:

Within ten (10) days after receipt of an order to hold a special election or notice of facts requiring a special election, the county election commission shall publish, in a newspaper of general circulation in the county, a notice of the date and purpose of the election.

Attorney Roberts told Dan Mandis on WTN 99.7 Thursday afternoon that he plans on attending today’s meeting, and will ask the members of the Davidson County Election Commission to present their legal argument for setting the election date for August 2, given the fact that state law is clear that the special election must be held on either May 1 or between May 21 and May 26.

Should the Commission fail to provide a persuasive argument, but goes ahead and sets the election date for August 2, Roberts said it is quite likely that he or someone else will have good grounds to immediately request the local court to rule the August 2 date as invalid, and require a date be set in May.

The final outcome of the election date may hinge on the definitions used for the types of elections identified in the governing Tennessee statutes and Metro Charter. Those laws refer to special metropolitan elections, general metropolitan elections, general elections, special elections, and primary elections, which, as best we can determine, are defined as follows:

Special metropolitan election–The casting of the ballots by residents of Nashville and Davidson County for the sole purpose of electing a new mayor upon a vacancy in the office. A vacancy in the vice mayor’s office or in a council member at large seat cannot be filled in a special metropolitan election, but must be held at the next general metropolitan election.

General metropolitan election-The casting of ballots by residents of Nashville and Davidson county for the purpose of electing a mayor and members of the City Council to four year terms on the first Thursday in August at four year intervals that began in 1963, the year of the first general metropolitan elections.

General election— Refers to any final county wide election, and can include a general metropolitan election, such as the August 2015 general election at which former Mayor Barry and David Fox emerged as the two top candidates to qualify for the runoff election Barry won the following month, the municipal judge and sheriff elections scheduled for August 2, 2018, and, in the opinion of Attorney Roberts, the mass transit referendum scheduled for May 1, 2018.

Special election–A final election for a vacated office scheduled at a time other than a general election. Appears to be used to refer special elections to replace a council member is a specific district, or a special metropolitan election to replace the vacated office of mayor or an at large council member. Notably, the charter prohibits the election of vice mayor at a special election.

Primary election–A preliminary election held prior to a general election, usually for the purpose of selecting the nominee for a party to be on the ballot in a general election.

Part of the confusion is that different types of elections can be held at polling places on the same day.

For instance, the May 1 election appears to be both a general election for the mass transit referendum and a primary election for municipal judges and the sheriff. Voters may cast their ballots in both these elections at the same time.

Similarly, the August 2 election appears to be both a primary election for state and federal offices, and a general election for municipal judges and sheriff.

WKRN reports that newly-minted acting Mayor David Briley has confirmed that he will add his name as a candidate for mayor on the date picked by the Davidson County Election Commission for the election to select a new mayor.

The Special Called Meeting is set for Friday afternoon at 3:30pm, in the Davidson County Election Commission Conference Room, located in the Metro Southeast Building at 1417 Murfreesboro Pike, Nashville. for driving directions, click here.

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