As reported by
Kleinheider, likely lame-duck "Democratic" Senator Rosalind Kurita just dumped a huge contribution of $32,500.00 from her "Kurita Majority PAC" into the coffers of the (Republican) Tennessee Legislative Campaign Committee, making her the
sixth largest contributor in that Republican PAC's Pre-General report submitted on 10/28/2008, as shown by
this link on the Tennessee state government official site for election finance dislosures.
University of Memphis law professor, Shelby County Commissioner, and former U.S. Assistant Attorney General in the Civil Rights Division
Steve Mulroy wrote an excellent memorandum which was circulated to the State Executive Committee in support of the rights of Tennessee's Democratic Party to set aside Kurita's primary election, if justice and fairness required it, and to select a nominee anew by one of several legal methods.
Because of the time pressure created by Tennessee's statutory procedural deadlines, many thoughtful and loyal Tennessee Democrats did not get the benefit of seeing Professor Mulroy's explanation of the law and political issues involved.
Therefore, with his permission, I am posting the full memorandum here to promote understanding and acceptance of the process, which so far has been acquiesced in by the federal courts in which Kurita has challenged it.
I. THE DEMOCRATIC STATE EXECUTIVE COMMITTEE HAS THE SOLE AND NONREVIEWABLE AUTHORITY TO SET ASIDE THE INSTANT PRIMARY ELECTION
Section 2-17-104 of the Tennessee Election Code provides that the “state primary board” of the state party shall have the power to hear any primary election contest. TCA §2-17-104. In doing so, it shall have the power to effect any disposition of the contest “which justice and fairness require,” including “setting aside the election if necessary.”
Id. For this and other purposes, the State Executive Committee of the state party shall function as the “state primary board.” TCA §2-13-102.
Under Section 2-17-104, the state executive committee has “exclusive jurisdiction” to consider and resolve a primary election contest and determine who is the proper nominee of that party.
Taylor v. State Democratic Executive Committee, 547 S.W. 716, 717 (Tenn. 1978). As the Tennessee Supreme Court has noted, the legislative intent of this provision was that “intra-party squabbles” over nominations are “a political matter which are to be resolved by the party itself without judicial intervention.”
Id. The Court has explained that the party’s own “machinery” is “much better equipped” than the courts to resolve these types of disputes.
Id. For this reason, decisions by the state executive committee resolving primary election contests are not subject to judicial review in Tennessee courts.
Id.In
Taylor, the plaintiff challenged the state executive committee’s nomination of a candidate for State Supreme Court Justice on the grounds that the executive committee’s exercise of authority to nominate was not in accordance with the party’s rules, as required under then-Section 2-1315 of the Election Code (current TCA §2-13-203). 547 S.W. at 716-717. The Court stated that the plaintiff’s proper route—indeed, his only route—was to challenge the nomination before the state primary election board, whose resolution of said challenge would be final and unreviewable.
Id. The Court noted that this was so regardless of whether the plaintiff characterized his claim as a challenge to the nomination or a violation of an independent statutory requirement: since the gravamen of the complaint was who would represent the party as its nominee, the state party itself had the final and exclusive say.
See id.The Tennessee Supreme Court reaffirmed this principle in
State ex rel. Inman v. Brock, 622 S.W.2d 36 (Tenn. 1981). Like
Taylor,
Inman concerned a claim that the state party had improperly nominated a candidate for the State Supreme Court in violation of party rules—in this case, by using a secret ballot. Citing
Taylor, the Court ruled that state courts lacked jurisdiction to hear such claims, because the state party had sole and exclusive authority in such matters.
Id. at 42. The Court again stated the “clear” legislative intent behind Section 2-17-104 “to keep the court and the public sector out of intra-party actions.”
Id. The Court also cited
Heskell v. Ledgewood, 234 S.W. 1001 (Tenn. 1921), which held that the action of a State Primary Board is “final and conclusive, and is not subject to review by the courts.”
Id.Further, for reasons made clear in Section II,
infra, the state executive committee’s resolution of the primary contest will likely not be challengeable in federal court either.
II. BOTH FEDERAL AND STATE CASE LAW SHOW THAT THE STATE EXECUTIVE COMMITTEE HAS A WIDE RANGE OF GROUNDS TO CONSIDER IN MAKING ITS DECISION
This judicial deference to a political party’s selection of nominees is not only a matter of Tennessee statutory construction, but federal constitutional requirement. The Supreme Court has emphasized that the First Amendment grants political parties important freedom of association rights in determining its nominees.
See California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (striking down California’s “blanket primary” law on First Amendment free association grounds). Specifically, the Court has stated that “[i]n no area is the [party’s] right …more important than in the process of selecting its nominee,” a “crucial juncture” in the party’s expression of its First Amendment rights.
Id.In
Jones, the Supreme Court explained that while a nomination process cannot flagrantly violate the Constitution by discriminating on the basis of race [
id. at 572,
citing,
inter alia,
Smith v. Allwright, 321 U.S. 949 (1944)], party nomination processes are
not “wholly public affairs that States may regulate freely.”
Jones, 530 U.S. at 572-573. Indeed, the Court explicitly distinguished
Allwright and other “white primary” cases, noting that they “do not stand for the proposition that party affairs are public affairs, free of First Amendment protections.”
Id. at 573. Thus, state regulations which interfere with a party’s nomination process are constitutionally suspect.
Id.;
see also Libertarian Party of Ohio v. Blackwell, 462 F.2d 579 (6th Cir. 2006) (citing
Jones in striking down a requirement that minor parties file papers a year before the election).
From the above, it follows that while a state executive committee hearing such a challenge may consider the types of grounds which a chancery court considers in a traditional election challenge, it is not
limited to such grounds. Thus, for example, the committee could consider whether there were a number of illegal votes shown to be cast which exceeded the margin of victory in the election.
See Emery v. Robertson County Elec. Comm’n, 586 S.W.2d 103, 108-109 (Tenn. 1979) (setting out a two-prong test for voiding challenged election results in general election contests). It could also consider whether sundry election irregularities cumulated to render the election “incurably uncertain.”
See id. But under
Jones, it could further consider any rational ground which did not independently violate the Constitution.
Specifically, the executive committee could legitimately consider evidence that an unusually high amount of “crossover” voting by Republicans or other non-Democrats skewed the results of the election. In
Jones, the U.S. Supreme Court emphasized the legitimate interest parties had in avoiding “party-raiding,” which it defined as members of one party switching to another party to alter the outcome of the second party’s primary.
Jones, 415 U.S. at 572. Indeed, it relied on this interest in striking down California’s “blanket primary” law, which allowed Republican voters to vote in Democratic primaries for statewide office.
Id. at 572-576.
The Court also cited (
id. at 576) its similar decision in
Democratic Party of United States v. Wisconsin ex rel La Follette, 450 U.S. 107 (1981), where it invalidated a Wisconsin law requiring that delegates to the Democratic National Convention vote in accord with the state’s “open” presidential preference primary. The
La Follette Court noted that the party’s legitimate interests conflicted with a system in which non-Democratic voters could potentially determine the party’s nominee for President.
La Follette, 450 U.S. at 126.
Numerous courts have followed
La Follette and
Jones in emphasizing the legitimacy of this concern about party-raiding.
See,
e.g.,
Lopez Torres v. New York State Bd. of Elec., 462 F.3d 161, 202 (2d Cir. 2006) (preventing party-raiding is a “compelling” state interest).
[1]III. IF THE EXECUTIVE COMMITTEE SETS ASIDE THE ELECTION, IT COULD NAME A NEW NOMINEE THROUGH PARTY CAUCUS, CONVENTION, OR ANY OTHER METHOD AUTHORIZED UNDER THE RULES OF THE PARTY
It is clear that in hearing the instant challenge to Ms. Kurita’s nomination, the state executive committee has the authority to set aside her election.
See 2-17-104(c). If it does so, the next question is what remedies the executive committee may pursue to determine its nominee. Given the short time before the November general election, a primary election may not be feasible. For example, overseas absentee ballots must ordinarily be mailed out 45 days prior to the election—in this case, by September 20.
See TCA §2-6-503.
[2] But the executive committee may legally arrange for alternative methods of nomination.
The statutory scheme bears examination. Section 2-13-203 provides that political parties may nominate candidates “by any method authorized under the rules of the party
or by primary election.” TCA §2-13-203(a) (emphasis added). This language would contemplate a party caucus, party convention, or other non-primary election method.
However, this Section so provides “for any office other than those listed in § 2-13-202.”
Id. The referenced section, 2-13-202, in turn requires that parties nominate candidates
by primary election for Governor, General Assembly, U.S. Senate, and U.S. House. At first glance, this could be read to preclude the use of non-primary means of nomination in this case.
But these statutes appear in Chapter 13 of the Election Code, which sets out the normal procedures for nomination of candidates in the first instance.
[3] They do not “trump” the separate provision in Chapter 17 of the Code (TCA §2-17-104), providing for special procedures in the unusual case of a successful contest of a primary election. This conclusion follows from the “well-settled rule of statutory interpretation” that “the specific controls the general.”
State v. Cauthern, 967 S.W.2d 726, 735 (Tenn. 1998).
The Tennessee Supreme Court’s decision in
Dobbins v. Crowell, 577 S.W.2d 190 (Tenn. 1979), is directly on point. In
Dobbins, candidate Davis won the August Democratic primary for State Senate District 33, but had failed to file a timely pre-primary finance disclosure per TCA 2-1001
et seq, which disqualified him under an applicable state statute.
Id. at 191. The County Democratic Committee responded by convening on October 2, barely a month before the general election, and renominating him.
Id. at 192.
The Court upheld this nomination procedure: “We hold that Davis was eligible to receive that nomination
by convention and to be a candidate in the general election…”
Id. (emphasis added). At the time of the Court’s decision, the election statutes contained similar general language requiring primary elections to nominate General Assembly candidates. The statutory provision in question was Section 2-1314, the prior version of current Section 2-13-202.
See TCA § 2-13-202 (referencing Acts 1972, ch. 740, § 1; TCA § 2-1314; 1995, ch. 305, §60). In other words, the statutes were in all pertinent respects the same as today, but this state’s Supreme Court nonetheless allowed for a post-August nomination of a General Assembly candidate by a means other than a primary election.
A year later, the Tennessee Attorney General issued an opinion along the same lines, on all fours with the matter now before you.
See Tenn. Op. Atty. Gen. No. 80-401 (Aug. 11, 1980). A State Representative asked what would happen if, after the August primary election, a winning State Representative candidate was disqualified by court decision: could a “replacement candidate be chosen by the Republican Party and, if so, by what procedure”?
Id. at 1. The Attorney General responded that the party’s “county executive committees from the respective counties in the legislative district involved may decide how to fill such a vacancy,” provided they did so by the applicable deadline for finalizing the general election ballot.
Id.[4]Crucially, the Attorney General squarely discussed the issue before us, regarding Section 2-13-202’s requirement that General Assembly nominations be
done by primary election only.
Id. at 2. The Attorney General began by explaining that the statute dealing with disqualification by a court, Section 2-13-204, said then (as it does now) that a new nomination could occur by “any method authorized by Section 2-13-203.”
Id. at 1. The referenced Section 2-13-203 in turn said (as it does now) that parties may nominate their candidates
for any office other than those listed in § 2-13-202 by any method authorized under the rules of the party...”.
Id. at 2 (emphasis added). The Attorney General acknowledged that the referenced Section 2-13-202 stated generally that General Assembly nominations normally occur through primary elections, but concluded that that requirement did not apply to the special case of a nominee being disqualified between the August primary and the November general election.
Id.Here is a crucial passage:
Even though § 2-13-202 requires political parties to nominate candidates for the general assembly by primary election in the regular August election, this provision would not preclude the selection of a new nominee pursuant to §2-13-204 should the winner of the primary be disqualified. The election laws are to be construed in pari materia. See Tenn. ex rel Cassity v. Turner, 601 S.W.2d 710 (Tenn. 1980). Therefore, §§ 2-13-202 and 2-13-203 should not be interpreted so as to render § 2-13-204(a)(4) meaningless.
Id. at 2 (emphasis added). The Attorney General concluded by relying on
Dobbins v. Crowell,
supra, where the exact same situation occurred.
Thus, both the Tennessee Supreme Court and the Attorney General have concluded that should a General Assembly nominee be disqualified after the August election, the party in question may name the nominee by procedures provided for in its rules, and are
not required to conduct a primary election. In this case, the State Executive Committee could call for a caucus, an emergency convention, or even simply a meeting of the executive committee, to decide whose name shall appear on the ballot, depending on the provisions of the party’s rules.
Note particularly the Attorney General’s statement above that the general requirement of a primary election (Section 2-13-202) should not be so construed as to render “meaningless” the specific statute (Section 2-17-104) establishing a right to contest a primary. Applying the primary election requirement in that overly restrictive way truly
would render Section 2-17-104 meaningless.
To see why, consider the time frame involved. There are approximately 90 days between the August primary and the November general election. A losing candidate has 5 days to file his contest, TCA §2-17-104(b), and state law requires that overseas absentee ballots must be mailed out 45 days prior to the election, TCA §2-6-503.
[5] This leaves 40 days in between for (a) the state party’s determination of the primary contest, (b) a candidate qualifying period, (c) some minimum amount of time for a second primary campaign, (d) the second primary election, and (e) certification of the results to the election commission. The Legislature could not have intended for such a rushed, unrealistic procedure to be the only way of remedying problems in the primary election of offices listed in Section 2-13-202.
Indeed, if Section 2-13-202’s general requirement of a primary election really applied to the unique circumstance of a successful post-August primary contest, then the state party would almost always be forced, as a practical matter, to go to the general election without any nominee at all. Given that only an unsuccessful candidate has standing to pursue a primary election contest [
see TCA § 2-17-104(a)
and Dobbins v. Crowell, 577 S.W.2d 190, 193 (Tenn. 1979)], and that most losing candidates would find it small consolation to knock out the initial nominee without having a shot at replacing her, this interpretation would amount to the Legislature establishing a mechanism for contesting primary elections which would almost never be used. It strains credibility to ascribe such an intent to the Legislature.
See City of Caryville v. Campbell County, 660 S.W.2d 510 (Tenn. Ct. App. 1983) (“It is the duty of the court to reconcile any inconsistent provisions of a statute so that no part will be inoperative, superfluous, void, or insignificant”).
Moreover, such a strained construction would severely restrict the party’s ability to determine its own nominee, raising significant constitutional questions under
California Democratic Party v. Jones,
supra. This is yet another argument against the overly restrictive interpretation: i.e., the general rule of statutory construction that statutes should be interpreted to avoid constitutional issues.
See Jordan v. Knox County, 213 S.W.3d 751, 780-781 (Tenn. 2007) (“If a provision can be legitimately construed in a variety of ways, [courts should] adopt a construction which will …avoid a constitutional conflict”).
[Footnotes]
[1] Tashjian v. Connecticut Republican Party, 479 U.S. 208 (1986), is not to the contrary. In that case, the Court invalidated a state’s “closed primary” law on the grounds that it impermissibly interfered with the state GOP’s desire to allow independent voters to vote in its primary; in doing so, it rejected the State’s argument that its closed primary law was necessary to guard against party-raiding. Significantly, the Court emphasized that the State could not substitute its judgment regarding party-raiding for that of the Republican Party.
Tashjian actually bolsters the argument that a state should defer to a political party regarding its nomination rules.
[NOTE: The above discussion is not to suggest that the Constitution forbids Tennessee's procedure allowing voters to decide on the day of the election which partisan primary (if any) they will vote in, or requires registration by party. Rather, the argument is merely that, given the importance placed on the party-raiding concern by the Supreme Court, it would be rational and permissible for the Tennessee Democratic Party to consider an unusally high amount of "crossover" voting as one factor among several in making its decision.]
[2] The relevant statute allows for a shorter time frame of 30 days prior to the election in the case of,
inter alia, a “special election,” if the appropriate qualifying or filing deadline “does not reasonably allow compliance” TCA §2-6-503(a). This language, or a court decision, could conceivably allow for overseas absentee ballots to be sent out even later, should resolving this primary contest so require.
See note 5,
infra. In any event, though, the overall time frame is compressed, making a new primary election difficult.
[3] This conclusion is transparent from the statute’s own language. Section 2-13-203(d) sets out the procedures for a primary election. It addresses only primaries which take place prior to August. Obviously, Section 2-13-203 does not contemplate some sort of “special” primary to determine a nominee after a successful primary election contest.
[4] Both the Supreme Court in
Dobbins and the Attorney General in Opinion No. 80-401 dealt with candidates disqualified candidates disqualified
by a court. Thus, the “backup nomination” procedures of TCA §2-13-204, which contemplate decisionmaking in such circumstances by members of the
county executive committees, applied. See TCA §2-13-204(a). Since the instant case would involve disqualification
by a state executive committee, those procedures would not be binding. A reasonable argument could be made that the “backup nomination” could be done by county executive committeemen by analogy to Section 2-13-204. However, the stronger argument is that the state executive committee would make the decision. After all, the statute providing for primary election contests explicitly grants to the state executive committee the power to “make the disposition of the contest which justice and fairness require.” TCA §2-17-104.
[5] This state deadline is driven by the federal requirements of the Uniformed & Overseas Citizen Access to Voting Act (UOCAVA). Actually, though, under unusual circumstances like these, a state court has discretion to allow for last-minute changes to overseas absentee ballots, despite the provisions of UOCAVA. For example, in
New Jersey Democratic Party v. Samson, 814 A.2d 1028 (N.J. 2002), the unexpected withdrawal of a statewide candidate allowed the State Democratic Party to name a new nominee only 34 days prior to the November general election.
Id. at 199-200. Though a “substantial number” of overseas absentee ballots had already been mailed, the state supreme court ordered new absentee ballots to be mailed with the new candidate’s name.
Id. The Court rejected objections based on UOCAVA, relying on the right of the voters to have full and valid choices, and explaining that, if need be, the state court could extend the state law deadline for receiving and counting late-arriving overseas absentee ballots.
Id. See also Reitz v. Rendell, 2004 WL 2451454 (M.D. Pa. Oct. 29, 2004), *1-2 (ordering State to extend deadline for receipt of overseas absentee ballots for several days past the election, as applied to federal offices). Additionally, there may be some statutory support for extending the deadline to 30 days prior to the November election in unusual circumstances.
See note 2,
supra,
citing TCA §2-6-503(c). But regardless of the exact deadline ultimately determined by a court to apply, it seems clear that accomplishing all of the above steps within a legally appropriate time frame would be a tall order.
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