The Tennessee Republican Party (TRP) filed its appeal on Monday morning with the Court of Appeals of Tennessee at Nashville regarding the ruling made by Davidson County Chancery Court Judge Russell Perkins ordering disqualified TN-5 candidate Robby Starbuck to be placed on the August 4 primary ballot.
The Court of Appeals ordered Starbuck to respond to the TRP’s filings by 4 p.m. on Tuesday.
The Court said in its order:
This matter is before the Court upon the application for an extraordinary appeal and motion for stay filed by the Tennessee Republican Party and the Tennessee Republican Party State Executive Committee. Pursuant to Tennessee Rules of Appellate Procedure 7(a) and 10(d), the appellee, Robert Starbuck Newsom, a/k/a Robby Starbuck, shall file an answer to the application for an extraordinary appeal and motion for stay on or before 4:00 PM on Tuesday, June 7, 2022.
The TRP’s appeal contained two filings: an emergency motion asking for a stay of Judge Perkins’ injunction placing Starbuck on the TN-5 ballot, and an application for extraordinary appeal from the order of the Davidson County Chancery Court.
The TRP has requested expedited relief.
The emergency stay request says in part:
Defendants, the Tennessee Republican Party (“TRP”) and the Tennessee Republican Party State Executive Committee (“TRP SEC”) (collectively the “TRP Defendants”), have contemporaneously filed a Rule 10 application for extraordinary appeal of the trial court’s June 3, 2022 temporary mandatory injunction order (the “Injunction”), which was issued 45 days after Plaintiff Robert Starbuck Newsom (“Starbuck”) concedes he first learned that he would not be restored to the TRP ballot for the 5th Congressional District.
It continues in another section:
If the Injunction is not stayed immediately, the State will need to print and finalize the ballots, the TRP Defendants will have no ability to stop the violation of their First Amendment Freedom of Association rights, and the Tennessee Republican Party will be forced to proceed with a primary that lists as a Republican candidate someone who the TRP has determined is not a bona fide Republican. California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (“In no area is the political association’s right to exclude more important than in the process of selecting its nominee.”); see also LaRouche v. Fowler, 152 F.3d 974, 996 (D.C. Cir. 1998) (“The Party’s ability to define who is a ‘bona fide Democrat’ is nothing less than the Party’s ability to define itself.”).
A motion for stay has not been filed with the Chancery Court because, as detailed further in this motion, the ballots must be completed (at the latest) just four days from now, by June 10, 2022, and therefore any further consideration in the trial court without immediate review by the Court of Appeals would be impracticable. Tenn. R. App. P. 7(a).
In another, it says:
Starbuck submitted “vouching letters” from certain TRP officials as an attempt to satisfy the decision-makers that he was a bona fide Republican in accordance with the TRP bylaws. App. at 023-24 ¶¶ 31, 34. The TRP SEC considered this information, but on April 19, 2022, it voted to uphold (i.e., not withdraw) Starbuck’s earlier removal from the ballot. App. at 026 ¶¶ 39-40, 48; App. 191 ¶¶ 6-7; see also Tenn. Code Ann. § 2-5-204. Because Starbuck failed to vote in three out of the last four Republican primary elections, it was Starbuck’s burden to prove his party bona fides “to the satisfaction of the decision makers” and the TRP SEC had authority to require “additional verification that [Starbuck] is indeed a bona fide Republican.” App. at 058. The TRP SEC reviewed the information submitted by Starbuck, but were not satisfied by his bona fides. App. 191 ¶¶ 6-7. Starbuck has known since April 19, 2022 that he was removed from the ballot. Id.
The motion for emergency stay of the injunction argues, “The TRP Defendants Are Highly Likely to Succeed on the Merits of Their Appeal,” “The TRP Defendants Will Suffer Irreparable Harm If the Injunction is Not Immediately Stayed,” “Staying the Injunction will not injure Starbuck,” “Staying the Injunction Would Resolve Significant Injury Caused to Various Interested Parties and is in the Public Interest.”
TRP’s appeal is based on the following factors:
- “The Injunction Directly Violates the TRP Defendants’ Freedom of Association Rights Guaranteed by the U.S. Constitution”
- “The Chancery Court Committed a Fundamental Violation of the Law by Ruling that TOMA Applies to a Private Political Party’s Decision About Bona Fide Party Status Under Tenn. Code Ann. § 2-13-104”
- “The Chancery Court Erred by Not Denying the Injunction under the doctrine of laches.”
- “The Chancery Court Failed to Consider Closely or to Balance the Required Factors in its Decision to Grant Injunctive Relief”
- “The Chancery Court Failed to Adequately Consider the Harm to the TRP Defendants”
- “The Chancery Court Failed to Give Adequate Consideration to the Harm to the Public Interest”
- “The Injunction Fails to Comply with Tenn. R. Civ. P. 65.02(2) Because It Fails to Enjoin the TRP Defendants or Any Person Acting in Concert with the TRP Defendants.”
The TRP’s appeal cites at least 30 previously litigated cases in supporting its claims, including the recent federal case that Starbuck withdrew against the Tennessee Republican Party after Judge Crenshaw denied his motion for an injunction.
Several options exist in how the Court of Appeals can react to these filings by the TRP.
The Court of Appeals can grant the stay and then quickly proceed to an emergency hearing. The Court could also grant the stay and proceed to a hearing much further into the future, which would effectively kill Starbuck’s chances at getting on the ballot.
The Court could also elect to do neither.
Read the filings:
Read the court’s order:
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Aaron Gulbransen is a reporter at The Tennessee Star and The Star News Network. Email tips to [email protected]. Follow Aaron on GETTR, Twitter, and Parler.
Photo “Robby Starbuck” by Robby Starbuck. Background Photo “Courtroom” by Karen Neoh. CC BY 2.0.