The Tennessee General Assembly often passes laws that dance delicately on the penumbra of constitutionality. Rarely, though, are legislators so blatant in their acknowledgement that a bill defies the United States Constitution and Supreme Court decisions that flow from it as they have been with Senate Bill 2616.
An even more ancient tradition is the legislature passing laws aimed at a specific entity. Thus the cavalcade of census exceptions in various laws, designating that some measure does or does not apply to, say, “a county with a population between 22,650 and 22,660 in the 2020 census.” (That’s Grainger County.) The state’s liquor laws are full of these things — Assembly Food Hall, for example, is described as, among other things, “across a public street from a live performance venue that was originally constructed in 1892 as a religious facility” and “adjacent to a facility originally constructed in 1925 that houses the Grand Lodge of Free and Accepted Masons of Tennessee.”
SB 2616, which is awaiting Gov. Bill Lee’s signature, isn’t quite so comically specific. But it too is aimed squarely at very specific people.
In short, the bill requires: “In order to qualify as a candidate in a primary election for the United States senate [sic] or for member of the United States house of representatives [sic], a person shall meet the residency requirements for state senators and representatives contained in the Tennessee constitution.”
The Tennessee Constitution requires that each member of the legislature be a resident in their district, and requires that legislators be Tennessee residents for three years.
The worst-kept secret on Capitol Hill is that lawmakers are aiming to disqualify Republican congressional hopefuls Morgan Ortagus and Robby Starbuck, neither of whom has lived in Tennessee for three years. Presumably, removing them from the ballot would boost the chances of former state House Speaker Beth Harwell, who — like Starbuck and the Trump-endorsed Ortagus — is seeking the Republican nomination in the newly redrawn 5th Congressional District.
Supporters of Ortagus filed a lawsuit in U.S. District Court last week to enjoin the state from enforcing the law (which, as of press time, has yet to be signed). The plaintiffs seem to have plenty of legal heft behind them. The United States Supreme Court has ruled time and time again that states cannot enact more stringent requirements on congressional candidates than those prescribed in the United States Constitution. It’s kept states from enacting term limits and from requiring representatives to live in the district they represent. The legal underpinning is that the list of qualifications set by the Framers is an exhaustive one, unable to be supplanted by the states.
None of this should catch supporters of the bill by surprise. After all, Senate Republican Caucus Chairman Ken Yager said he had some “real serious considerations” about the bill’s constitutionality. (These concerns did not keep Yager from voting for the bill.)
The legal counsel for the state Senate’s State and Local Government Committee told the panel, “There have been cases like this before, and they have all been ruled unconstitutional.” Only one member thereafter voted against moving the bill along.
The technicality the bill’s sponsors are pinning their hopes on is that the bill applies only to primary elections, not the general election. It doesn’t prohibit Ortagus or Starbuck from running as independents, after all. It’s an argument likely to be found wanting by a judge. The only supplemental bars to the primary ballot, beyond those specified by the Constitution, are the party bona fides of candidates, and even those are determined by the political parties themselves rather than the legislature.
While the law is universally on their side, the calendar isn’t doing Ortagus and Starbuck any favors. The qualifying deadline for the August primary is April 7. Unless Lee exercises his veto — in Tennessee, a very weak protest that can be overcome by simple majority votes in the legislature — the bill will become law with or without his signature April 9.
In what was already a scrambly pre-primary season while candidates awaited district maps, the latest move by the legislature threw yet another spanner in the works.Â
