Davidson County Election Commission Provides Tennessee Code Citation It Says Allows It to Move Date of Nashville Taxpayer Protection Act Referendum to December 15

Davidson County Elections Administrator Jeff Roberts on Thursday cited the portion of the Tennessee Code that the Davidson County Election Commission says permits them to move the prospective election date for voters to say yes or no to the Nashville Taxpayer Protection Act from December 5, as prescribed in the petition, to December 15, as the commission voted to do in its September 25 meeting.

Roberts responded to The Tennessee Star Thursday morning.

“The specific section of the code is 2-3-204,” Roberts said.

“The version used in your article was amended in 2016,” he added.

Roberts provided this current version of section 2-3-204 of The Tennessee Code Annotated to The Star in his email:

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 seventy-five (75) days nor more than ninety (90) 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 seventy-five (75) 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 ninety (90) 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.

The current version of Section 2-3-204 of the Tennessee Code Annotated differs from the outdated version cited in earlier Tennessee Star articles in one key regard.

Section 2-3-204 (a) currently reads:

Elections on questions submitted to the people shall be held on dates set by the county election commission but not less than seventy-five (75) days nor more than ninety (90) days after the county election commission is directed to hold the election under the law authorizing or requiring the election on the question.

Prior to 2016, Section 2-3-204 (a) read:

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. 

As reported, The Nashville Taxpayer Protection Act referendum, if approved, would roll back Nashville Mayor John Cooper’s 34 to 37 percent tax increase. As reported last month, the Nashville Election Commission voted three to two to neither approve nor reject the Nashville Taxpayer Protection Act. They instead passed the matter on to a chancery court to guide them on how to proceed, and also moved the “conditional” date of the election from Saturday, December 5 to Tuesday, December 15.

As The Star reported previously, the Davidson County Election Commission was “directed to hold the election under the law authorizing or requiring the election on the question” on September 17. December 1 is 75 days from September 17, and December 16 is 90 days from September 17.

At the September 25 meeting of the Davidson County Election Commission, Chairman Emily Reynolds stated, in a comment directed at Davidson County Election Coordinator Roberts, “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.”

During the subsequent discussion, one commissioner noted that Tuesdays and Thursdays were the days Davidson County voters were accustomed to vote in special elections.

The current version of Section 2-3-2014 (a) of The Tennessee Code Annotated makes it clear that “Elections on questions submitted to the people shall be held on dates set by the county election commission,” but also notes that it must be held 75 to 90 days, “after the county election commission is directed to hold the election under the law authorizing or requiring the election on the question.”

As The Star reported previously, “the law authorizing or requiring the election on the question” is Section 19.01 of the Nashville Davidson County Metro Chart, which can be seen below:

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.

Note that the charter  uses very specific language about the role of the petition in scheduling the date of the election:

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

According to the Find Law Dictionary, “prescribe” means “to lay down as a rule or guide; specify with authority [the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof ‘U.S. Constitution art. I’]”

The Nashville Taxpayer Protection Act prescribed Saturday, December 5 as the date of the election, for several reasons. First, greater turnout was anticipated on a Saturday, and second, 20 days before Christmas provided more time before Christmas Holiday events. In addition, it provided a buffer of more than 30 days after the November 3 general election.

Nashville attorney Jim Roberts, who organized the Nashville Taxpayer Protection Act and, with the help of Americans for Prosperity-Tennessee, secured the 27,000 signatures on the petition that required the Davidson County Election Commission to schedule the referendum election, told The Star on Thursday afternoon that he believes the commission has interpreted the law incorrectly, and that the election date should be December 5, as was prescribed in the petition signed by 27,000 Davidson County residents.

“Metro is dishonestly relying on authority the election commission has to move election dates, but they don’t have the power to change the date that the people have selected,” Roberts told The Star.

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Chris Butler is an investigative journalist at The Tennessee Star. Follow Chris on Facebook. Email tips to [email protected].
Photo “Law Library” by ONULaw23 CC3.0. 

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