The Davidson County Election Commission has not yet specified the section of the Tennessee Code Annotated (the most recent compilation of all of the current statutes of the state) by which it has the authority to change the “conditional date” of the Nashville Taxpayer Protection Act election referendum from December 5–the date specified for the election in the petition signed by 27,000 residents of Davidson County, verified by the commission, and certified by the Metro Clerk’s Office–to December 15.
The Nashville Taxpayer Protection Act referendum, if approved, would roll back Nashville Mayor John Cooper’s 34 to 37 percent tax increase.
At the September 25 meeting at which the commission voted to seek a declaratory judgment from the Davidson County Chancery Court that the Nashville Taxpayer Protection Act was not legally sufficient and unconstitutional, chose not to set a referendum election date of December 5, 2020, as is their ministerial duty under both Tennessee law, the Metro Charter, and Tennessee Supreme Court precedent, but instead chose to set a “conditional” election date of December 15, 2020, Davidson County Election Commission Chairman Emily Reynolds made reference to an earlier comment by Davidson County Election Administrator Jeff Roberts as to the date on which the “conditional” election date could be set.
“You have suggested to us, and this is based on the Tennessee Code, we can set an election date that is not earlier than November 30 and not later than December 15. Do you have a recommendation for us to consider?” Chairman Reynolds asked
“Yes, we would recommend to the commission December 15 as the date,” Election Administrator Roberts answered. (beginning at the 2:05 mark of the tape, which can be viewed below)
A review of the preceding two hours of the videotaped meeting did not immediately reveal Reynolds making that comment, nor of his specifying the relevant portion of the Tennessee Code Annotated used as the basis for Reynolds’s comment.
As of late Tuesday, Election Administrator Roberts did not cite which portion of the Tennessee Code Annotated gave Nashville Election commissioners the power to move the date.
Roberts did not respond Tuesday to The Tennessee Star’s repeated requests to obtain the citation of the specific section of the Tennessee Code Annotated that was cited by Chairman Reynolds in the September 25 meeting as the authorization for moving the election referendum date to December 15.
The Star reported extensively on Tuesday about the underlying Metro Charter provisions and Tennessee Code Annotated on the legal requirements for the setting the date of an election referendum:
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
According to the Tennessee Secretary of State’s website, members of the Tennessee General Assembly appoint seven members to the State Election Commission (SEC). Members of the State Election Commission, in turn, appoint five county election commissioners for every county in the state, including Davidson.
The SEC has the authority to remove election commissioners who fail to perform their duties.
Tennessee Secretary of State spokeswoman Julia Bruck told The Star in an email Tuesday that “removal of local election commissioners by the SEC is rare but has occurred.”
“In one case, a member was removed for creating a hostile work environment,” Bruck said.
“In another instance a member was removed for disparaging remarks about a candidate on the ballot. The comments were made in the capacity of an election commissioner. There may be other incidents but staff was busy preparing for early voting next week and did not get to look at the SEC minutes.”
Bruck did not offer more specifics about who State Election Commissioners removed or when.
As The Star reported Tuesday, members of the Davidson County Election Commission cancelled a meeting they had previously scheduled for Tuesday.
Roberts 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.”
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