The Davidson County Election Commission set Thursday, May 24 as the date of the special election for the Mayor of Nashville at an emergency meeting Wednesday afternoon, the day after the Tennessee Supreme Court struck down their earlier decision to set August 2 as the special election date.
“The vacant District 1 council seat that was set to be on the May 1 ballot will also be on the May 24 special election,” WSMV reported:
A new deadline to qualify to be on the ballot for mayor and District 1 has been set for Thursday at noon. Early voting would be held May 4-19 at the Howard School and expand to all satellite locations on May 11.
A run-off election, if necessary, would be held on June 28.
At least fourteen candidates have already qualified for the special election, including Acting Mayor David Briley, At-Large Metro Council Member Erica Gilmore, former Vanderbilt professor Carol Swain, State Rep. Harold Love, jeff obafemi carr, and Ralph Bristol.
The final field will be set by the end of day on Thursday, after petitition signatures submitted by any additional candidates prior to the noon deadline are reviewed and verified.
From there, it will be a six week sprint until special election day on May 24, only three weeks after voters go to the polls on May 1 to either approve or reject the $9 billion transit plan.
The responsibility for this unusual situation–and the estimated $1 million plus in additional election expenses that taxpayers in Nashville and Davidson County will be forced to pay–rests squarely with the three Republican members of the Davidson County Election Commission and the new administration of Acting Mayor David Briley, and in particular Metro Legal Director Jon Cooper and his staff.
On March 9, in the immediate aftermath of former Mayor Megan Barry’s resignation in disgrace, these three Republican commissioners sided with the politically contrived and legally unsound position of the new Briley administration and rejected a proposal by the two Democratic members of the commission to set the date for the special mayoral election at May 1, the same date as the referendum election in Davidson County on the $9 billion transit plan.
“Three of the five members of the Davidson County Election Commission ignored the plain meaning of Tennessee law and voted to set August 2, 2018 as the date for the special election to select a new mayor of Nashville late Friday afternoon, thereby plunging the city into a likely firestorm of lawsuits and threatening the legitimacy of an election held on that date,” The Tennessee Star reported at the time:
The meeting was convened in response to the resignation of Mayor Megan Barry on March 6, and the swearing in of Vice Mayor David Briley the same day as acting mayor. Briley has already declared that he will be a candidate for mayor in the upcoming special election.
Commission Chairman Jim DeLanis, Commissioner Jesse Neil, and Commissioner Emily Reynolds, all Republicans, formed the three member majority who voted in favor of the motion to set the election date at August 2. Commissioner Tricia Herzfeld and Commissioner A.J. Starling, both Democrats, formed the two member minority who voted against the motion.
By the same three to two margin, the commission rejected an earlier motion by Commissioner Herzfeld, an attorney, to submit a request for declaratory judgment before the Chancery Court on Monday to obtain an official ruling on the proper interpretation of state law and metro charter as it relates to the legal date for the upcoming special mayoral
“Commissioner Herzfeld has raised an approach which, I don’t think we have considered before, which is to apply for a declaratory judgment action. That’s to me uncharted water. I don’t know how that would be viewed by the court,” Chairman DeLanis said, explaining in part his opposition to this motion.
Also by a three to two margin, the commission rejected another earlier motion by Commissioner Herzfeld to set May 1 as the date for the special election to select a new mayor of Nashville.
Ludye Wallace, a mayoral candidate, challenged the decision by the Davidson County Election Commission in Chancery Court, but Judge Claudia Bonnyman sided with the commission an Metro Nashville Government and agreed that August 2 should be the date for the special mayoral election.
The following day, The Tennessee Star interviewed Professor Judith M. Stinson, Executive Associate Dean of the Sandra Day O’Connor School of Law at Arizona State University and a recognized national expert on the distinctions between legal holdings and “dicta,” about Judge Bonnyman’s decision.
Stinson “told The Tennessee Star that if the decision by Chancery Court Judge Claudia Bonnyman to set the date for the special mayoral election in Nashville at August 2 treated dicta as binding, that places the integrity of that election, as well as the entire judicial system in the state of Tennessee, in question.”
Only a legal holding in a case on the issue argued by both sides establishes legal precedent, Stinson told The Star in a phone interview on Thursday.
“Dicta” is entirely irrelevant and is not solid grounds for a legal precedent.
Last Friday, the Davidson County Election Commission ignored the plain meaning of the law and voted 3 to 2 to set August 2 as the date for the special mayoral election.
On Wednesday, Judge Bonnyman sided with the commission and ruled that August 2 should be the date for the special mayoral election.
On Thursday, Jamie Hollin, attorney for plaintiff and mayoral candidate Ludye Wallace, appealed Judge Bonnyman’s ruling to the Tennessee Supreme Court
The Star pointed out that “the key part of Judge Bonnyman’s ruling in Wallace vs. Metropolitan Government of Nashville and Davidson County, et al., as handed down on Wednesday, which relied on “dicta” from the 1983 Tennessee Supreme Court case Wise v. Judd rather than that case’s legal holdings, in the opinion of all of the more than half dozen Tennessee attorneys The Star discussed the case with:
The Tennessee Supreme Court has interpreted the phrase metropolitan general election in Metro Charter 15.01 to mean any election where Metropolitan offices are being elected. The Metropolitan Charter Section 19.01 requires that a petition for a referendum on a proposed amendment be signed by 10 percent of the number of registered voters of of Nashville-Davidson County voting in the preceding general election. And the issue in that case that the Supreme Court decided was whether the reference was to a preceding metropolitan general election, and was there such a thing, what was it; or the previous state general election which occurred in November 1982. If the August 1982 or August 1979 metropolitan election meant, facially, the petitions contained a sufficient number of signatures.
The Chancellor held that since the subject involved is the amendment of the Metropolitan Charter, the intent of the Charter Commissioners was to refer to the number of votes cast in the metropolitan election rather than to the number in a state or national election. The Charter provides for metropolitan general election and refers to them as such. We think the reference in 19.01 under consideration is to municipal elections; that is a broad meaning of the term general metropolitan elections rather than the narrow term which is touted by and argued by the plaintiffs.
The Court also finds in regard to the memorandum underlying Wise versus Judd that the August 1982 election was not the every four year general election but was the more generic broad general metropolitan election. Therefore the Supreme Court has interpreted Chapter 15.01 to mean any election where votes are cast in the metropolitan election. (emphasis added)
The Tennessee Supreme Court agreed to hear Wallace’s appeal, and on Thursday ruled unanimously that the August 2 date selected by the Davidson County Election Commission was unlawful, precisely on the grounds that the Star identified back in May: the claim by both the commission and the Metro Nashville Government Legal Department that its decision in the 1983 Tennessee Supreme Court case Wise v. Judd provided absolutely no precedent upon which to violate black letter law and move the election date from either May 1 or May 21 to 25 to August 2.
Here’s the specific language in the Tennessee Supreme Court’s decision Tuesday on the relevance of Wise v. Judd to the date of the special mayoral election:
Metro and the Commission also contend that we previously decided the issue in this case and reached a contrary conclusion in State ex rel. Wise v. Judd, 655 S.W.2d 952 (Tenn. 1983).
The meaning of the phrase “general metropolitan election” as used in section 15.03 of the Charter and whether that phrase and the phrase “general election” as used in the Charter have the same meaning were not before the Court in Wise.
In Wise, the parties did not raise or address, nor did the Court analyze, the issue which is now before us. Rather, the issue in Wise was whether the phrase “preceding general election” as used in section 19.01 of the Charter is limited to a municipal general election or includes a state or federal general election.
There was in Wise no dispute that both the August 1979 “general metropolitan election” and the August 1982 “general election” were municipal general elections which would qualify for purposes of section 19.01.
The question was whether the November 1982 state general election also would qualify. Id. Our holding in Wise was that the phrase “preceding general election” as used in section 19.01 of the Charter refers to municipal general elections, not to state or federal general elections.
We did not hold, nor did we intend to hold, that the phrases “general metropolitan election” and “general election” are synonymous for purposes of section 15.03 of the Charter.
As attorney Jamie Hollin told The Star at the March 9 hearing at which the Davidson County Election Commission erred by setting the special election date at August 2, the law was so clear on this issue “any fourth grader” could understand it.