UPDATE: By Order issued 4/10/2018, Nashville’s Mayoral Election must be held in May. The Court’s unanimous opinion is available here.
“We are grateful that the Tennessee Supreme Court has issued a powerful, persuasive, and unanimous opinion vindicating Mr. Wallace’s claim that the Charter is clear and that Metro Government cannot unilaterally nullify a referendum supported by 83% of voters.” —Jamie Hollin and Daniel Horwitz, Counsel for Ludye Wallace
Yesterday afternoon, the Tennessee Supreme Court’s full gallery of onlookers was treated to an unprecedented event: an emergency appeal demanding that Metro Nashville hold a near-immediate special election to fill the vacancy in its Mayor’s office. The office became vacant on March 6, 2018, when ex-Mayor Megan Barry resigned after pleading guilty to felony theft. Following an extraordinary oral argument in which lawyers for the city argued that they had provided an “inaccurate” ballot summary to voters, the Court announced that it would issue a ruling sometime this week.
The emergency appeal—filed on behalf of Mayoral candidate and former Metro Councilman Ludye Wallace—centers on Section 15.03 of Nashville’s Metro Charter. In pertinent part, that section reads: “There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor . . . whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election.” Consequently, the case turns on when “the next general metropolitan election” is scheduled to take place. If, as Mr. Wallace argues, “the next general metropolitan election” is not until August 2019, then a special election must be held in May. If, as Metro argues, there will be a “general metropolitan election” in August 2018, however, then the election can be held then.
Helpfully, the Metro Charter expressly defines “general metropolitan elections.” One provision of the Charter—Section 15.01—is specifically titled “When general metropolitan elections held,” and it makes clear that such elections are only held every fourth August in odd-numbered years. Another Charter provision referring exclusively to those four-year August elections—Section 15.02—uses the term “the general metropolitan election” seven separate times. And another Charter provision—Section 18.06—reflects that Metro has uniformly considered those specific four-year August elections to be the only type of “general metropolitan elections” for decades.
Most clearly, however, because Section 15.03 was enacted by voter referendum in 2007, Metro was also required to provide a summary of the provision at the time that it was being considered for adoption by voters. By law, that summary had to be “worded so as to convey [the amendment’s] meaning.” Helpfully, in clear (and admittedly unambiguous) terms, the ballot summary stated: “This amendment would require that a special election be held to fill a vacancy in the office of mayor . . . whenever more than twelve (12) months remain in the unexpired term.”
Because more than eighteen months remained in ex-Mayor Barry’s term when she resigned, it would seem clear that Section 15.03 requires “that a special election be held to fill a vacancy in the office of mayor,” since all agree that “more than twelve (12) months remain in the unexpired term.” Attempting to avoid this result, however, Metro lawyers argued to the court yesterday that the ballot summary they provided to voters was inaccurate.
Responding to that claim, Mr. Wallace’s counsel argued that such a position—if tolerated—would call “the integrity of the referendum process and the democratic process itself into question.” Although that contention did not appear to be well-received by one Justice, it was certainly well supported. Under similar circumstances, court after court has held that “[t]he citizen initiative constitutional amendment process relies on an accurate, objective ballot summary for its legitimacy.” See In re Advisory Opinion to the Atty. Gen. re Additional Homestead Tax Exemption, 880 So. 2d 646, 653 (Fla. 2004). See also Zukerberg v. Bd. of Elections & Ethics, 97 A.3d 1064, 1079 n. 77 (D.C. 2014) (“the summary is very important, because it will likely form the basis of a voter’s decision.”). In a recent decision concerning Amendment 1 to the Tennessee Constitution, the U.S. Court of Appeals for the Sixth Circuit similarly explained that misleading voters without notice creates a Due Process problem.
Here, in undisputed reliance upon Metro’s “inaccurate” ballot summary, 83 percent of Nashville’s voters voted in favor of the amendment, and it carried every single precinct in the county. As Mr. Wallace has argued, the measure also ensures that Nashville’s residents will promptly be able to ensure “that their Mayor is someone who was actually elected to represent them.” Consequently, the notion that Metro can bait voters into supporting a referendum under a specifically defined set of terms and then attempt to change the provision’s meaning after the fact is, frankly, preposterous.
In a statement released to the media after the Tennessee Supreme Court exercised its jurisdiction to hear the case, Mr. Wallace’s lawyers stated that “[w]e are optimistic that the unambiguous terms of the Metro Charter and the clearly expressed will of 83 percent of Nashville’s voters will soon be vindicated.” For the sake of the rule of law—and to protect the legitimacy of the referendum process—every Metro voter should hope they’re right.
Selected Case Documents
*Tennessee Supreme Court’s Opinion and Order
–Wallace Principal Brief
–Metro’s Principal Brief
–Wallace Reply Brief
–Wallace Application for Extraordinary Jurisdiction
Selected Media Coverage
-The Tennessean: Tennessee Supreme Court moves up Nashville mayoral special election to May
-The Nashville Scene: Supreme Court: Mayoral Election Must Be Held in May
-The Nashville Post: Supreme Court moves mayoral election to May
-The Nashville Business Journal: Supreme Court strikes down August mayoral election date
-Nashville Business Journal: Tennessee Supreme Court to decide fate of Nashville mayoral election
-WPLN: Nashville Must Hold Next Mayor’s Election In May, Court Rules
-Nashville Post: Supreme Court will decide mayoral election date
-Nashville Scene: Metro Legal Could Cost the City Money for Another Election
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