State of Tennessee Files Petition Asking Appeals Court to Vacate Lower Court Decision Putting Starbuck Back on TN-5 GOP Primary Ballot

The state of Tennessee filed a petition asking the Court of Appeals of Tennessee at Nashville to vacate Davidson County Chancery Court Judge Russell Perkins’ order putting Robby Starbuck on the August 4 Republican primary ballot.

Attorney General Herb Slatery, Deputy Attorney General Kleinfelter, and Solicitor General Andree Blumstein are listed as signees on the filing.

The petition says in part:

Petitioners Tre Hargett, in his official capacity as Tennessee Secretary of State, and Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee, petition this Court pursuant to
Tenn. Code Ann. § 16-4-110 for a writ of common law certiorari and supersedeas vacating the June 3, 2022 mandatory injunction order of the Davidson County Chancery Court directing Petitioners to restore Plaintiff Robert Starbuck Newsom’s name to the ballot as a candidate in the August 2022 Republican primary election for the office of U.S. House of Representatives for the 5th Congressional District.

The state of Tennessee is asking for an expedited review of its petition, because of the looming absentee ballot printing deadline.

Petitioners are requesting expedited review of their Petition as the mandatory deadline for sending absentee ballots to military personnel and overseas citizens is June 20, 2022. See Military and Overseas Voters Empowerment Act (MOVE”), 42 U.S.C. § 1973ff-1(8) and Tenn. Code Ann. § 2-6-503(a). To meet this deadline, the county election commissions for the six counties within the 5th Congressional District (Wilson, Davidson, Williamson, Maury, Marshall and Lewis counties) need sufficient time to prepare the ballots for the August elections, submit the ballots to the State Election Coordinator for review and approval pursuant to Tenn. Code Ann. § 2-5-207(e) and then print the ballots. As there are currently only eight (8) business days before the June 20th deadline, Petitioners seek expedited review of their Petition for commonlaw writ of certiorari and supersedeas.

The state of Tennessee noted that Perkins issued an order to the Secretary of State’s office regarding placing Starbuck on the ballot when they were not named defendants in Starbuck’s suit. Additionally, the state claims the injunction violates Tennessee law.

Petitioners are not named parties and were not served with process in accordance with Tenn. R. Civ. P. 4. in the chancery court case. Thus, the chancery court has/had no personal jurisdiction over Petitioners and was without authority to enjoin them to restore Plaintiff to the ballot. Additionally, the injunction was issued in violation of Tenn. R. Civ. P. 65.04(1) as Petitioners were not provided notice.

The state filing reiterated that point several times:

Simultaneously with his complaint, Plaintiff filed an application for temporary injunction, but in that application, Plaintiff made no reference to directing or instructing the State or any state officials to reinstate Plaintiff s name to the ballot. (App. at 182-83.) Plaintiff did not serve a copy of his application for temporary injunction or otherwise give notice to Petitioners that he was seeking injunctive relief requiring “the state to reinstate Mr. Starbuck’s name on the ballot.” That same day, the chancery court issued an order setting a hearing on Plaintiff s application for June 2, 2022. (App. at 185.)

In another section, the state argued:

If the chancery court or Plaintiff relies on Tenn. R. Civ. P. 65.04(1) to support the court’s “temporary injunction,” that reliance is fruitless. Rule 65.04(1) provides that [n]o temporary injunction shall be issued without notice to the adverse party.” No notice was provided to either of the Petitioners that Plaintiff Newsom was seeking a temporary injunction “to direct the state to reinstate Mr. Starbuck’s name on the ballot for the August 2022 federal primary election for U.S. Representative of Tennessee’s 5th Congressional District.” (App. at 38.)

Accordingly, the chancery court had no authority to issue a mandatory injunction directing all “appropriate public officials,” including Petitioners, to restore Plaintiffs name to the ballot, and therefore, in doing so clearly exceeded its jurisdiction.

The filing also notes that the deadline has already passed for candidates to be placed on the ballot and the withdrawal of a political party’s determination that a candidate was not bona fide.

For purposes of the upcoming August 4, 2022, election, the deadline for a political party executive committee to give the State Coordinator of Elections notice that it had determined that a candidate was not a bona fide party member and should be removed from the ballot was noon on April 14, 2022, and the deadline for withdrawal (i.e., reversal) of
determination of a candidate’s disqualification was close of business on April 21, 2022.

In filing this writ to vacate Perkins’ ruling ordering Starbuck on the ballot, the state of Tennessee has thrown its weight squarely behind the Tennessee Republican Party’s legal arguments.

This action puts Starbuck’s ballot status very much in doubt, according to legal observers.

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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. 

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