The Davidson County Election Commission on Friday voted along party lines to appeal a Nashville chancellor’s order canceling a planned July referendum election related to the city’s taxing authority.
The commission approved a draft set of actions prepared by their legal counsel — James Blumstein of Vanderbilt University and Austin McMullen of Bradley Arant Boult Cummings. The commission agreed to cancel the planned July 27 election, as ordered by the judge, while also appealing the decision to the Tennessee Court of Appeals, and set a conditional date in September for a new election should they prevail at court.
The proposed charter revision, brought by anti-tax group 4 Good Government, would limit Nashville’s taxing authority, make it easier to recall elected officials and roll back last year’s property tax increase. Metro Charter experts — and the chancellor who ruled on the lawsuit early this week — say that the process has been legally flawed on several fronts: in form because it was not submitted properly, and in substance because if approved by Nashville voters it would strip taxing authority granted by the state constitution from the county elected body.
The vote was taken shortly before 5 p.m., and the commission’s lawyers said they would file a notice to appeal within minutes. The commission will meet again early next month for an update from their lawyers.
Commissioner Tricia Herzfeld, one of the two Democrats on the five-member board, raised repeated questions about the legal process and the cost to taxpayers. Blumstein said he was charging $800 per hour, and the commission has racked up more than $50,000 in legal costs before the debate even reached the trial court. Herzfeld was also concerned that the legal team was communicating exclusively with commission chair James DeLanis, a Republican appointee, and that Blumstein advised 4 Good Government leader Jim Roberts prior to being retained by the election commission — a new admission.
“We’ve essentially taken over the representation in this case for 4 Good Government on the taxpayer dime, and continuing to move forward concerns me as a commissioner and a citizen,” Herzfeld said.
Also on party lines, the commission voted down Herzfeld’s request that the lawyers inform other commissioners about progress in the case, rather than just DeLanis.
Legal counsel said they would look into asking the Tennessee Supreme Court to take up the case instead of the appeals court in an effort to expedite consideration of the matter.
DeLanis dismissed concerns about the cost of the litigation, arguing that the commission would waste the money already spent by giving up on the case.
“I’m afraid if we don’t appeal we’re just going to kick the can down the road,” he said.
Metro Councilmember Bob Mendes has been one of the most aggressive critics of both the 4 Good Government proposal and the election commission’s support for it. In a letter to the commission, he begged them not to appeal the chancellor’s ruling.
“I believe that you already know that Chair DeLanis’s intentions from the start were to push the referendum onto the ballot no matter what,” he wrote. “I believe you know that instead of letting unbiased legal advice dictate the conclusion, Chair DeLanis’s preferred conclusion dictated what the legal advice was going to be.”
