State Rep. Tim Rudd: Ortagus, Starbuck, Winstead, and Baxter Lee Ineligible for TN-5 Primary under TN GOP Bylaws, ‘Based on What Members of the Party Are Telling Me’

Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. –  host Leahy welcomed State Representative Tim Rudd (R-TN-34) to the newsmaker line to discuss the bill passed on Monday by the Tennessee State Senate, SB2616, which would establish a three-year residency requirement for candidates for the U.S. House and U.S. Senate to qualify for the 2022 primary ballot.

Rudd addressed the constitutionality of that bill. In addition, he noted that he served on the Tennessee Republican Party State Executive Committee for 18 years, and that ” based on what members of the party are telling me, Winstead, Baxter Lee, Morgan, and Starbuck, those four [candidates for the Republican nomination in the new Fifth Congressional District of Tennessee] do not meet the bona fide status,” and therefore are not eligible, based on the Tennessee Republican Party bylaws, to be placed on the August 4 Republican primary ballot.

You can read the transcript of the interview here:

Leahy: We welcome to the newsmaker line, our good friend, State Representative Tim Rudd from Rutherford County. Good morning, Tim.

Rudd: Good morning, Michael.

Leahy: Hey, thanks so much for joining us. Really appreciate it. I know it’s busy up there with the Tennessee General Assembly and all the things going on.

You’ve been in Rutherford County politics for a lot of time. You’re a real estate agent, so you really know what’s going on in Rutherford County, right?

Rudd: I try to keep abreast of it all. I’ve been involved for over 30 years.

Leahy: That’s exactly right. A Tennessean through and through. The other thing that we know about you, Tim, and we’ve known each other for some time.

When you look at an issue and you are convinced you are right, you stick with it no matter what anybody else says, unless they make a better argument. I think you’ve demonstrated that many a time.

And that’s one of the reasons I was delighted you were going to come on because you are the chairman of the Elections and Campaign Finance Subcommittee, and you will be looking at this bill that sailed through the state Senate yesterday, 31 to 1, this SB2616.

And the language of it as passed by the Senate, says “in order to qualify as a candidate in a primary election for the U.S. House, a person shall meet the residency requirements for state senators and representatives contained in the Tennessee Constitution.”

That’s three years. And I think I read that you’re the chairman of this committee. David Wright, who is on the committee, is sponsoring the bill there.

He may have a twist and turn on it. But I think you said, in your view that you were opposed to this bill because you didn’t believe it’s constitutional. Do I have that right?

Rudd: Yes. As written now, the Senate bill passed is blatantly against five Supreme Court rulings. We cannot interfere with a party’s nominating process. I think what they’re trying to do is, many attempts in the past for other states to try to define above the constitutional definition of residency and qualifications for Congress, that they’ve struck it down.

So they’re trying to tell the parties what to do. But that, too, has been struck down over and over again because it violates the freedom of assembly. A political party is not owned or controlled or established by the government. It is a private entity.

There is no difference in the Republican Party than the Rotary Club or the Lions Club. They are private, non-government-funded organizations, and we can give them access to the ballot, and we can empower them to act in our stead and then have limited control over that process. But we can’t control their nominating process.

Leahy: Let’s see if I can present an alternative view. You ready?

Rudd: Yes.

Leahy: Okay. I don’t share that view, and let me explain my thinking on it. First, the Constitution simply says that to run for the U.S. House of Representatives, you must be a resident of that state, and over 25 years of age.

So by that count, anybody could run for the U.S. House of Representatives, just being 25 years old and being a resident of the state. So you could run in the 5th district of Tennessee but not live in that district according to the Constitution. We would agree on that, correct?

Rudd: Yes.

Leahy: Okay. Now let’s go back to the issue of whether or not states can set rules for folks that are running for the House of Representatives. We go back to precedent, and the most recent precedent from the Supreme Court was the 1995 decision, U.S. Term Limits v. Thornton.

The U.S. Term Limits, a group that sued the Secretary of State of Arkansas, who had ruled that the law there said you couldn’t run for Congress after three terms, was unconstitutional. That went up to the Supreme Court.

In a five-four decision, they ruled, yes, the state can’t do that. Significantly, the dissent in that case was written by Clarence Thomas. Scalia agreed with him and said, look, the Constitution is silent on this, and the state can and should be able to do whatever they want. Your thoughts on that dissent?

Rudd: Well, again, I’m not questioning whether a state can or cannot declare residency and exceed the constitutional minimal. My whole argument against the bill as passed in the Senate is it talks about the primary nominating process.

And that’s getting very iffy in order to infringe on a party’s right to choose their political nominee. I was just going to say if they want a constitutional challenge, then we just need to declare the residency requirement of three years without mentioning the nominating process.

Leahy: There are some precedents on the issue of primaries. And there are two cases on that. One was the 1941 case which was the United States v. Classic. And in that case, the Supreme Court ruled that the primary in Louisiana, a one-party state, was tantamount to the general election, and therefore, the state could not limit primary activity.

But in 1921, in Newberry v. United States, the Supreme Court clearly said that the rules of the primary were the right and privilege of the state. Your thoughts?

Rudd: I’ll have to look at that decision. I think it’s five decisions from both the ’80s and ’90s, and I believe it was a 6th Circuit opinion. There are different opinions on the way it’s worded on a party’s nominating process.

You can’t infringe on it. Now, I think Wisconsin, they passed the Democratic-controlled legislature there, passed a similar bill about telling them how to nominate.

They appealed to the state Supreme Court, they appealed to the legislature, and then the state party did not appeal that beyond the state Supreme Court. So that really never went beyond the state boundary.

I think Dave Wright got an amendment that he filed for the Wednesday meeting that will eliminate that and require a three-year residency of anyone running for the House or Senate unless you’re already in office.

Of course, you wouldn’t apply it if someone was just elected. He’s got that. So it’s slightly worded different than what passed in the Senate. He writes that.

Leahy: Let me ask you this question: If there’s a slight difference between what the House passes and the Senate passes, it goes to the conference committee, right?

Rudd: Yes.

Leahy: How does that conference committee work? How do they work that out? I’m told that often the state Senate has more primacy in those conversations in conference committees than the House. Is that right or not?

Rudd: No, they are both equal. They’re both equal members. They negotiate. You would have Niceley and you’d have Wright. And then the Speaker of the Senate and House would appoint other members to negotiate at the table and then they’d come back. It really gets down to who gives them first, or who has the best constitutional argument in the conference committee.

Leahy: Got you.

Rudd: And they compromise and they come back and see what they can live with.

Leahy: Tim, when this bill comes up before your committee with the amendment from Dave Wright tomorrow, are you prepared to tell us how you intend to vote, or are you going to wait till tomorrow on that?

Rudd: I can tell you how I’m leaning. I never like to say I’m solid one way or another until I hear all the arguments and the committee. But as of right now, I could not personally vote for Frank Niceley’s [version of the bill] because I feel it’s infringing on the party.

I could vote for Dave Wright. It really boils down to, as a member, that we really wouldn’t even need to be doing this if the state party would just enforce its bona fide status.

Leahy: Very good point.

Rudd: I used to be on the state executive committee and bylaws committee for 18 years before I was a state legislator.

And I can tell you right now, based on what members of the party are telling me, Winstead, Baxter Lee, Morgan, and Starbuck, those four do not meet the bona fide status.

Leahy: That’s a very good point, Tim. That’s a very good point.

Rudd: I think Morgan’s argument is she comes from New York and in New York, she only had the opportunity to vote in one statewide primary therefore, that part of our rule shouldn’t apply to her. But in my opinion, we don’t make our rules at the state party for other states. We make it for our state. And our state says you have to vote it in three out of four [of the most recent statewide Republican primaries].

Leahy: I see that exactly the same way that you do, Tim. Exactly the same way. Hey, one last thing, Tim. Thanks for your time. Hey, will you come to our National Constitution Bee in October for high school kids? I’d love to have you there.

Rudd: Just send us the information. If I don’t have a conflict, I’ll try to make it.

Leahy: Thanks so much for joining us, State Representative Tim Rudd. I hope you have a great day up on the Hill.

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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.