[EL] Tennessee election law contretemps

[Derek Muller]

In an analogous context, California and Colorado had conditioned the right
to vote for a replacement in a recall election on voting "yes" or "no" on
the recall. (Self-promotion: I've blogged about these issues here
<http://excessofdemocracy.com/blog/2013/8/is-colorados-recall-mechanism-unconstitutional>
and here
<http://excessofdemocracy.com/blog/2014/1/recall-elections-and-the-right-to-vote-in-colorado>.)
A California federal court and the Colorado Supreme Court struck them down.

The basic approach has been to follow *Burdick*, conclude that this is a
"severe burden" on a right to vote, must be justified by a compelling
interest and narrow tailoring, and fails. The best justification for that
two-step system is articulated by the dissent in Colorado's case,
explaining that in the old days, the recall consisted of a list of all the
candidates, including the sitting politician, and the winner would simply
win the recall (or, the sitting politician would win and never be
recalled). States broke this into two steps--yes or no, and then a vote on
the recall, which empowers voters who support the incumbent but would still
want a "say" in the recall down ballot.

Regardless, that narrow possible justification for recalls does not, I
think, tie in any way to the proposed novel interpretation of Tennessee's
law. It strikes me (at least) as fairly onerous to compel voters to vote
for one office in order to have the privilege of having their votes counted
for initiatives--at least, not without some even plausible justification
along the lines articulated in the recall dissent (which is, I think,
certainly a matter for meaningful debate).

At least, that's my initial (admittedly, perhaps fairly strong) view.

Best,

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341


On Thu, Nov 13, 2014 at 8:31 AM, Edelman, Paul <
paul.edelman at law.vanderbilt.edu> wrote:

>
>
>   The provision of the Tennessee constitution that specifies how to pass
> an amendment requires  voters must “approve and ratify such amendment or
> amendments by a majority of all the citizens of the state voting for
> governor, voting in their favor.” This has always been interpreted to mean
> that the number of votes to pass an amendment must exceed both the number
> of votes against AND be more than half of the number of votes cast in the
> governor’s race.  Of course, on plain reading, the wording would seem to
> say that the requirement is that it requires the majority of the votes of
> people who vote BOTH for governor AND the amendment.  A law suit
> challenging the former interpretation has been filed in federal court.
> See  http://dockets.justia.com/docket/tennessee/tnmdce/3:2014cv02182/61699
>
>   My question for the list is whether the second interpretation, tying the
> counting of one’s vote in the amendment race to participation in the
> governor’s race, would be a constitutional violation, either under a
> “forced speech” analysis or some other unconstitutional condition
> analysis.  Are there any cases really on point here?
>
>
>
>
>
>
>
> Paul H. Edelman
>
> Professor of Mathematics and Law
>
> 615-322-0990
>
>
>
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>
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