Slow your roll…

Just because he won, doesn't mean his seat is vacant
Just because he won, doesn’t mean his seat is vacant
With the election of State Senator Jim Kyle (D-Memphis) to the Chancery Court here in Shelby County, there will have to be a process to fill his State Senate seat.

On the face of it, this all sounds simple enough, but State Law has complicated the issue, as it is known to do, and that’s causing a bit of controversy surrounding the process of selecting a Democratic nominee to replace the Senator.

See, most people who didn’t know any better would think there’d just be another primary election (possibly on the date of the State/National general election in November), followed by the general election (sometime thereafter), but that’s not the case.

Because of the timing of Senator Kyle’s as yet unannounced resignation, select members of the Shelby County Democratic and Republican Executive Committees will have to select a nominee to the November General election.

How you get to that point, depends on how you read the law.

The State Party’s Prescription

Late Sunday night, the County Party sent members of the Executive Committee an advisory on who should be a part of the Caucus. The release, which is covered here, calls for a meeting of the Executive Committee on August 21st to determine the process, then the beginning of nominations on August 28th.

Now, setting the process early isn’t a bad thing. And there’s nothing that prohibits the Party from doing so before there’s actually a vacancy. But setting the beginning of the nominating process for any time before there is a vacancy is problematic.

In legaleese, the issue isn’t ripe (or ready for action).

Until Sen. Kyle submits his resignation to Gov. Haslam (as prescribed in TCA §§ 8-48-104) and the Governor issues a writ of election, there is no vacancy to fill.

So beginning any process to fill an unrealized vacancy is jumping the gun.

What if Sen. Kyle suddenly decides he likes the State Senate and doesn’t want to resign (unlikely, but possible)?

Truth be told, Sen. Kyle is in the driver’s seat, until the very moment he transmits his resignation to the Governor (sometime before he is sworn in as Chancellor). At that point, its up to the Governor to issue a writ. When that happens, then and only then is the process in the hands of the County Party.

So, to recap: Setting up a process before the a vacancy has occurred isn’t entirely bad, but starting the actual call for candidates before the vacancy occurs is problematic.

But that’s not the only problem with the party’s plan for filling the, as yet, non-existent vacancy.

Reside versus Represent

In the Draft release sent to the Executive Committee, the state process quotes Tennessee law.

Tenn. Code Ann. § 2-14-202 is the relevant section of code for this circumstance. But what the code means is another thing entirely…and especially here in Shelby County, where, by virtue of our size, and the bang-up job the Tennessee General Assembly did on gerrymandering the heck out of the House Districts, it gets complicated.

Here’s the relevant section that everyone’s quoting:

(d)(3) If a vacancy as described in subdivision (d)(1) occurs after the sixth Thursday before the primary election, the members of the county executive committees who represent the precincts composing such senate district may nominate a candidate to appear on the November election ballot by any method authorized under the rules of the party.

“represent” is bolded for emphasis

Now, this all sounds easy enough, except, the County party isn’t organized by precincts or State Senate Districts, we’re organized by House districts. And those House Districts are all over the place when it comes to crossing with Senate District 30.

Click to enlarge Senate Dist 30 is bordered in white  Overlapping districts are in orange
Click to enlarge
Senate Dist 30 is bordered in white
Overlapping House Districts are in orange
Here’s an idea of what that looks like.

As you can see from the image on the right, there are a lot of House Districts that intersect with Senate Dist. 30, and none of them are completely inside the district.

In all, there are 8 of Shelby County’s 14 House Districts that intersect at some point with Senate District 30. They are House Districts: 83, 85, 86, 88, 90, 93, 97, and 98.

If you’re an Executive Committee member representing one of those districts, you represent every precinct in that district

And that’s where the TNDP’s plan fails or the County Party misinterpreted the statute.

Here’s the email sent out to Executive Committee members announcing the Special Called Meeting. You’ll note that the final paragraph says this in part:

Per State Statue, Executive Committee members who reside in Senate District 30 and House District Chairs representing Districts that overlap with District 30 will make up the Caucus that will be responsible for electing a person to fill the Senate District 30 vacancy.

again, bolded for emphasis

Now, go back to the statute I quoted above. Nowhere does it say the people who “represent precincts” in the Senate District must also “reside” in the district.

We are a representative body, elected by people in all of the precincts of our district, as set forth by our bylaws which are approved by the State Party.

Excluding anyone who represents anyone in District 30, no matter how small of an area, is effectively creating a class of plaintiffs that could sue, effectively tying the outcome of the process up for a very long time. I don’t think anyone wants that. I certainly don’t.

Sure, that will mean there will be more than 40 people (more than half of the Executive Committee) participating in the process, but the people who chose to participate in the Ward and Precinct Caucus last year, as well as the Convention, selected people to represent them in matters of this nature.

Doing anything (purposefully or inadvertently) to ignore that process effectively disenfranchises them and ultimately makes them a part of any lawsuit class that might arise from getting it wrong.

Party Rules

Tenn. Code Ann. § 2-14-202 (d)(3) mentions “party rules” near the end of the quoted statute. It should be noted, that means how the winner is named, and nothing else…ie: majority of the vote or a plurality.

The party can set the rules in that manner, but the statute is clear on who is a qualified elector…and the Party can’t change that.

As for the method, that may be less clear. But it bears noting that in primary elections, a majority, as prescribed by the State party’s plan, is not the method normally used. Here’s the portion of TCA §§ 2-8-113 that applies.

(a) On the fourth Thursday after a primary election, the state coordinator of elections shall publicly calculate and compare the votes received by each person and declare who has been nominated for office in the primary or elected to the state executive committee. The candidates who receive the highest number of votes shall be declared elected or nominated;

bolded for emphasis

As we’ve seen in nominating procedures in the County Commission…voting until there’s a majority can yield unexpected and bizarre results. It can also lengthen the nominating time a great deal.

I can find nothing in state law that would mandate either a “most votes/plurality” position, nor a “majority” position for a caucus, but I would submit that the plurality will cause the process to run more smoothly, with less possibility of confusion.

Everyone understands the concept that the person with the most votes wins.

Final Thoughts

In the wake of some of the less pleasant things that have occurred in both State and County politics of late, the last thing either group wants to see happen is controversy arise in the act of fulfilling a fundamental process of these entities.

We have a full month before this has to be decided. Heck, we have nearly 10 days before Senator Kyle must resign to be sworn in as Chancellor.

Its critical we get this right.

For that reason, I hope both the Shelby County Democratic Party, and the Tennessee Democratic Party will take a step back and reconsider the process they’ve laid out thus far.

That may mean voting on the process issue closer to the Sept. 4th meeting (which would give the potential electors time to review any new process that arises). But voting on a potentially flawed process now only means more confusion in the end.

We can make this clean, clear, and completely right with the law if we keep ourselves from rushing through the process.

I hope we’ll take a step back and make sure we get it right.

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