MEMPHIS, Tenn. -- The American Civil Liberties Union of Tennessee released the following statement in response to the Memphis City Council filing a lawsuit after state election officials refused to allow a referendum proposed by the Memphis City Council to be placed on the November ballot and state lawmakers’ threats to withhold sales tax revenue from the city:
“The ACLU of Tennessee fully supports the Memphis City Council's lawsuit as it is a step towards justice and accountability following Tennessee state officials' recent attempts to unlawfully interfere in a local election and prevent the citizens of Memphis from trying to make their city safer through the democratic process.
The General Assembly leadership is threatening to withhold Memphis’s share of sales tax revenue – tax dollars paid by the citizens of Memphis – unless the Memphis City Council agrees to remove several proposed city charter amendments concerning gun violence and public safety from the November ballot. This is the latest example of a disturbing trend of authoritarian, antidemocratic power-grabs by state leaders looking to deny local communities the ability to govern themselves and shape their own future.1
Even more troubling is the refusal of Secretary of State Tre Hargett and Coordinator of Elections Mark Goins to allow the proposed referendum to be placed on the upcoming November ballot, citing their opinion that the proposed charter amendments are preempted by state law.
Tennessee law2 allows the coordinator of elections to approve a sample ballot in advance of an election. However, state law3 limits the coordinator of elections’ ballot approval authority to ballot design issues such as font color, size and layout. No state law grants the secretary of state or coordinator of elections the ability to approve or deny ballots based on the substance of the referendum to be voted on, and the Tennessee Supreme Court has made it clear that the coordinator of elections and county election commissions cannot prevent a charter referendum ordinance from appearing on the ballot merely because they believe it to be unlawful.4 Whether an ordinance is unlawful is for judges to decide—not election officials.
Memphis City Council Referendum Ordinance No. 5908 was legally voted upon and timely submitted to the Shelby County Election Commission by the duly elected members of the Memphis City Council for inclusion on the November ballot. Instead of performing their ministerial duties as required by state law, Secretary Hargett and Coordinator Goins are attempting to act as judges by placing a bureaucratic gag on democratically elected officials and the communities they represent. These actions far exceed their legal authority to administer elections and demonstrate vast executive branch overreach that raises grave separation of powers concerns.
Any legal issues raised by the potential passage of these city charter amendments will no doubt be resolved in a court of law, as is standard practice when there is a dispute between state and local governments in Tennessee. But for state actors to threaten to punish an entire city by depriving its citizens of their own tax dollars – simply because the local elected body wants to give constituents a chance to vote on how best to keep their own community safe – is a malicious abuse of power that should be deeply troubling to all Tennesseans.”
1See Tennessee lawmakers advance bill to undo Memphis' traffic stop reforms after Tyre Nichols death | AP News; TN bill banning community oversight boards for police signed into law (tennessean.com); House subcommittee passes bill targeting local short term rental rules (tennessean.com); How Tennessee lawmakers tilted the scales toward developers to make it harder for cities to get affordable housing | (wpln.org
2Tenn. Code Ann. § 2-5-206(c).
3Tenn. Code Ann. § 2-5-206(a).
4 City of Memphis v. Shelby Cnty. Election Comm'n, 146 S.W.3d 531, 535 (Tenn. 2004).
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