The Davidson County Election Commission cancelled a previously scheduled meeting that was to be held on Tuesday in a notice published Monday on the Metro Nashville Government’s website.
Individual election commissioners and members of Nashville Mayor John Cooper’s office did not return requests for comment Monday. Metro Legal Director Bob Cooper also did not reply to our messages Monday.
Election Administrator Jeff Roberts, though, said the agenda for the now cancelled meeting was a light one.
“The only thing that we had on the agenda for tomorrow’s meeting was my report on the status of the November election so we decided to cancel the meeting,” Roberts said.
“I’ll just be sending that [report] around by email.”
The Tennessee Star asked Roberts whether officials cancelled because of the revelations in the article, “Metro Nashville’s Claim of Election Commission ‘Non-Ministerial Role’ to Keep Property Tax Off Ballot Contradicted by 2004 Tennessee Supreme Court Decision: No Legal Authority to Question Constitutionality”, published in The Star early Monday morning:
The 2004 Tennessee Supreme Court decision in City of Memphis v. Shelby County Election Commission that found the “Commission exceeded its authority by refusing to place Referendum Ordinance No. 5072 on the November 2, 2004, ballot based upon the State Election Coordinator’s opinion that the Ordinance is unconstitutional,” may blow a major hole in Metro Nashville Legal Director Bob Cooper’s argument made to to the Davidson County Election Commission at its September 25 meeting that “the commission’s role here is not purely ministerial,” and that a 2004 Tennessee Supreme Court decision “said that the commission can consider the form of a referendum petition and suggested that it could review the petition’s facial or procedural legality.
Roberts said no.
“When we established the meeting we said that we were putting it on the calendar as an option because before the August election we had scheduled about a once-a-week meeting just in case we needed it. But since nothing is urgent at this point in time we made the decision that it was not necessary to meet,” Roberts said. (emphasis added)
“We will notice any meeting where a discussion is going to happen and what the discussion is about. If there is a meeting where the commission is going to vote on anything [then] there will be, definitely, notice ahead of time with an agenda and all of that other kind of stuff.”
Nashville attorney Jim Roberts, who helped secure the signatures for the Nashville Taxpayer Protection Act charter amendment, said Sunday that Metro Legal Director Bob Cooper “seems to believe that somehow the Election Commission has a lot more authority than it does.”
As The Tennessee Star reported in August, the Nashville Taxpayer Protection Act would roll back Cooper’s 34-37 percent tax increase and limit property tax rate increases to 2 percent every year without voters approving it.
Attorney Jim Roberts and Americans for Prosperity-Tennessee filed more than 20,000 petitions to place the referendum to amend the charter on the ballot on August 27. Subsequently, the Davidson County Election Commission verified that the petition contained the requisite 11,000 signatures needed to place it on the ballot. The Davidson County Metro Clerk’s Office verified those signatures on September 17.
Section 19.01 of the Nashville Davidson County Metro Charter describes the legal duties of the Davidson County Election Commission subsequent to that certification:
[U]pon petition filed with the metropolitan clerk, signed by ten (10) per cent of the number of the registered voters of Nashville-Davidson County voting in the preceding general election, the verification of the signatures to be made by the Davidson County Election Commission and certified to the metropolitan clerk. Such resolution or petition shall also prescribe a date not less than eighty (80) [days] subsequent to the date of its filing for the holding of a referendum election at which the electorate of the metropolitan government will vote to ratify or to reject the amendments proposed.
The metropolitan clerk shall immediately certify to the county commissioners of election copy of such resolution or petition and it shall thereupon be the duty of said commissioners of election to hold a referendum election with respect thereto.
The ballot shall be prepared so as to set forth a brief description of the amendment worded so as to convey the meaning of said amendment, said description to be set forth in the original amendatory resolution, that the language of each amendment in full be posted conspicuously in the voting place and be published in a local newspaper, numbered as the same is numbered in the resolution of the council or in the petition, and to provide the voters a choice to vote “For Ratification” and “Against Ratification” of each proposed amendment.
The charter clearly states that “The metropolitan clerk shall immediately certify to the county commissioners of election copy of such resolution or petition,” a certification that was accomplished on September 17. Notably, the petition was in compliance with the charter requirement that it set a date certain for the holding of the referendum election that was “not less than eighty (80) days subsequent to the date of its filing.” The date specified in the petition to hold the referendum election was December 5. Since the petition was filed on August 27, and December 5 is “not less than eighty days subsequent to” August 27, the charter is clear December 5 is the date the election commission should have set for the election.
After that certification, “it shall thereupon be the duty of said commissioners of election to hold a referendum election with respect thereto.”
But, as The Star reported, the Davidson County Election Commission voted three to two on September 25 not to perform its duty as set forth in the charter “to hold a referendum election with respect” to the petition of the Nashville Taxpayer Protection Act:
On Monday, Cooper – who served as Tennessee Attorney General from 2006 to 2014 and is a graduate of Yale Law School – issued a legal opinion that said, in part, that “the proposed charter amendment [the Nashville Taxpayer Protection Act referendum that would, among other things, repeal the recently enacted 34 percent property tax increase] is not legal and enforceable” and is “defective in form and conflicts with Tennessee Constitution and state and local laws in [various] ways.”
Cooper noted that the Davidson County Election Commission decided in a three to two vote at its September 25 meeting to “seek a declaratory judgment from Davidson County Chancery Court on the proposed amendment’s legal validity and set a conditional referendum date for December 15.”
At the September 25 meeting, Election Administrator Jeff Roberts told the election commission that “based on the Tennessee Code” it could set the “conditional date” for the referendum election between November 30 and December 15.
Title 2, Chapter 3, Part 2, Section 204 of the Tennessee Code Annotated states the law in Tennessee on place and times of elections, specifically for elections on questions:
2-3-204. Elections on questions.
(a) Elections on questions submitted to the people shall be held on dates set by the county election commission but not less than forty-five (45) days nor more than sixty (60) days after the county election commission is directed to hold the election under the law authorizing or requiring the election on the question. If the election is to be held in more than one (1) county, the county election commissions shall meet and set the date jointly.
(b) Resolutions, ordinances or petitions requiring the holding of elections on questions submitted to the people which are to be held with the regular August election, the regular November election, any regularly scheduled municipal election or the presidential preference primary shall be filed with the county election commission not less than sixty (60) days prior to such election.
(c) If the date for an election on a question, as set by a county election commission or by two (2) or more commissions jointly, falls within thirty (30) days of an upcoming regular primary or general election being held in the jurisdiction voting on the question, the commission or commissions may reset the date of the election on a question to coincide with the regular primary or general election, even though this may be outside of the time period established herein. All dates dependent on the date of the election shall be adjusted accordingly and any acts required to be done by these dates shall be performed timely if done in accordance with the adjusted dates.
September 17 was the date the county election commission was directed to hold the election under Section 19.01 of the Metro Charter, that direction coming in the form of the certification of the petition by the Nashville Davidson County Metro Clerk’s Office.
A petition on an election question certified on September 17 in a county that did not specifically state in its charter, as Metro Nashville Davidson County does, that the petition must name the date of the election, would, under state law, be required to schedule that election no more than 45 days nor less than 60 days from September 17, which would be between November 1 and November 16.
The law authorizing or requiring the election question – Section 19.01 of the Metro Nashville Davidson Charter – specifies that the petition itself must include the date of the election. In this instance, the petition states December 5 as the date.
As of Tuesday, October 6 – nineteen days after the Davidson County Election Commission was first directed to hold the referendum election – the commission has yet to perform its legal duty to schedule the referendum election for the Nashville Taxpayer Protection Act.
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