SB 2616 Requires Tennessee Residency Prior to April 2019 for Candidates to Qualify for 2022 GOP Primary in TN-5

On Wednesday the sponsor of SB 2616 told The Tennessee Star if the bill becomes law, candidates for the August 2022 GOP primary in Tennessee’s 5th Congressional District would qualify for the primary ballot only if they established Tennessee residency prior to April 7, 2019, three years before the April 7, 2022 filing deadline for this year’s primary.

The bill passed in the State and Local Government Committee of The Tennessee State Senate on Tuesday in a bipartisan 5-1 vote.

The bill’s sponsor, State Senator Frank Niceley (R-TN-08), told The Star on Wednesday that the residency requirements for qualifying in a Tennessee primary election for the U.S. Senate or the U.S. House of Representatives are quite clear, as the text of the bill, as amended prior to passage on Tuesday, indicates:

In order to qualify as a candidate in a primary election for United States senate or for member of the United States house of representatives, a person shall meet the residency requirements for state senators and representatives contained in the Tennessee constitution.

The date for qualifying as a candidate in the 2022 primary elections in Tennessee is April 7, 2022.

Niceley told The Star on Wednesday that the Tennessee Constitution requires three years of residency for state senators and state representatives, and with an April 7, 2022 filing deadline for primaries in the state, “SB 2616 would require the establishment of state residency in Tennessee prior to April 7, 2019 in order to be on the August 2022 primary ballot.”

“The bill would go into effect immediately upon signing into law,” Niceley added.

SB 2616 only addresses eligibility for primary races, and would not prevent candidates for the U.S. Senate or U.S. House of Representatives in Tennessee from running as independent candidates in the November 2022 general elections.

Regardless of whether the Tennessee General Assembly passes SB 2616, existing Tennessee Republican Party bylaws present additional hurdles for TN-5 candidates who recently arrived in the state to get on the August 2022 primary ballot.

Tennessee Republican Party Chairman Scott Golden told The Star on Wednesday that any TN-5 Congressional candidates whose bona fides are challenged prior to the April 7, 2021 petition filing deadline are considered off the GOP primary ballot unless and until they provide the Tennessee Republican Party State Executive Committee (SEC)  with evidence that they qualify as bona fide Republicans. A challenged candidate can restore their eligibility for the Republican primary ballot in two ways – either by (1) providing a voting history that shows they voted in three out of four of the most recent statewide primary elections or (2) are vouched for as bona fide Republicans – and the majority of a 13-member committee of the SEC approves them as bona fide in a majority vote.

The deadline for TN-5 Congressional GOP primary candidates who are challenged to present that evidence is April 9, 2022.

The 13-member committee of the SEC that will adjudicate those attempts to get back on the ballot will finalize their decisions on whether those candidates who have been challenged will be restored to the ballot by April 21, 2022, the day on which the ballots for the August 2022 Republican primary are finalized.

Sources have told The Star that challenges to the Republican bona fides of both Robby Starbuck (whose legal name is Robert Starbuck Newsom) and Morgan Ortagus were filed earlier this week, but GOP Chair Golden told The Star on Wednesday that he has not yet received any challenges to any TN-5 Congressional candidate.

As The Star reported last month, publicly available voting records show that Robby Starbuck fails to meet the TN GOP bylaws standard of having voted in three of the four most recent statewide Republican primaries. Though he registered as a Republican voter in Tennessee in July 2019, Starbuck did not vote in either the March 2020 or August 2020 Tennessee Republican primaries. He did vote in a “direct primary” in California in 2018, as well as a presidential preference primary in California in 2016, and has provided 2017 records from the State of California that he was registered as a Republican in that state.

Morgan Ortagus has not yet provided evidence to demonstrate she has met the TN GOP bylaws standard of having voted in three of the four most recent statewide Republican primaries. Tracking down her voting history is a bit complicated, as she apparently lived in Washington, D.C., from at least 2019 to 2021; New York City from possibly 2013 to 2017 to 2019; and prior to that in Washington, D.C.

In the event SB 2616 becomes law in this session of the Tennessee General Assembly, and Ortagus and Starbuck succeed in their separate efforts to be restored to the ballot if challenged under the TN GOP bylaws, each would also face the additional hurdle of meeting the SB 2616 residency standard.

In the case of Ortagus, she would clearly fail the SB 2616 requirement to have established her Tennessee residence prior to April 7, 2019. Until 2021 she was a resident of Washington, D.C., and registered to vote in Tennessee for the first time in November 2021.

In the case of Starbuck, public records indicate that he first registered to vote in Tennessee on July 25, 2019, more than three months after the April 7, 2019 residency date established in SB 2616.

Starbuck also complicated his case for Tennessee residency with his own statement in a February 3, 2022 interview with Dan Mandis of 99.7 WWTN radio in Nashville, in which he explained that he had not voted in the March 2020 or August 2020 statewide Tennessee Republican primaries because at that time, “I wasn’t a full-time resident [of Tennessee]”:

I was confused was because what we had been told recently, up to that day, was that because I was registered to vote in Tennessee, I should have voted in these primaries [March 2020 and August 2020]. But the problem is, I wasn’t a full-time resident. I had gotten my license when we had gotten a rental house here and we were sort of transitioning our kids here and transitioning – I was still closing down my business in California.

Public records indicate that Starbuck voted in the November 2020 general election in Tennessee.

Should SB 2616 become law, any TN-5 candidate disqualified to appear on the August 2022 GOP primary ballot could challenge the constitutionality of the law in federal court.

The outcome of such a potential challenge to SB 2616, a bill that has not yet become law, is uncertain.

In the 1995 case U.S. Term Limits v. Thornton, the Supreme Court ruled in a 5-4 decision that it was unconstitutional for the State of Arkansas to impose term limits on candidates for the U.S. House in the general election. Justice Clarence Thomas wrote the dissent in that case, and was joined by Justice Antonin Scalia, Justice Sandra Day O’Connor, and Chief Justice William Rehnquist.

In the 1941 case United States v. Classic, the Supreme Court ruled that a primary election in the one-party State of Louisiana was tantamount to a general election, and therefore the state’s claim that it alone controlled the rules of primary elections did not apply. Earlier, in a 1921 case, Newberry v. United States, the Supreme Court ruled that states controlled the rules of primary elections.

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Michael Patrick Leahy is the Editor-in-Chief of The Tennessee Star and The Star News Network.