NASHVILLE — Tennessee Democrats legally could strike their controversial U.S. Senate nominee, anti-gay rights activist Mark Clayton, from the November ballot and replace him with another candidate, according to State Election Coordinator Mark Goins' office.
"The process requires one of the losing candidates to contest the election within that five-day window after certification," said Blake Fontenay, a Goins spokesman, Friday.
"Then," Fontenay said, "the party must decide if 'justice and fairness' make it necessary to set aside the election results."
The decision could be made with the executive committee acting as the State Primary Board.
"If that decision is reached, then [the executive committee] could choose a new nominee," Goins said.
Goins' confirmation came after an attorney well versed in state election law earlier stated Democrats could indeed act if one of the six other candidates contested Clayton's election. The attorney spoke on condition of not being quoted by name.
Goins, a Republican, previously has stated there is not adequate time between now and the general election for Democrats to seek a redo of Senate primary.
Tennessee Democratic Party Chairman Chip Forrester, who did not respond to an interview request, publicly disavowed Clayton last week. In doing so, he cited the Southern Poverty Law Center's description of a group in which Clayton serves as vice president, Public Advocate of the United States, as an anti-gay "hate group."
Clayton has said it is not a hate group and instead promotes traditional values such as marriage between a man and a woman as well as opposition to abortion. He has threatened legal action if Democrats seek to overturn the election.
Forrester has said primary records show the only time he voted in Democratic primaries came in 2008, when he ran unsuccessfully for the party's U.S. Senate nomination, and this year. In all other cases, he voted a GOP primary ballot, Forrester said.
The chairman has come under sharp attack from fellow Democrats for what they say was his failure to vet candidates, leaving them what they call a right-wing "fringe" candidate to face U.S. Sen. Bob Corker, R-Tenn.
But Democratic officials have maintained that the executive committee's authority to knock Clayton off the ballot is a "gray" issue, legally speaking, which they're still researching.
Democrats have been in an uproar after Clayton unexpectedly emerged as the victor in the seven-person Aug. 2 primary, winning nearly 50,000 votes or 30 percent of the vote. He bested Gary Gene Davis, who came in second, and Park Overall, an actress who was quietly backed by the party.
Democratic Executive Committee member Jim Bilbo of Cleveland, an attorney and chairman of the party's bylaws committee, said that despite the assertions of Goins, a Republican who cites state statutes, be believes the issue is far from clear based on court rulings.
In 2008, the state Democratic Party's executive committee vacated the nomination of state Sen. Rosalind Kurita after she scraped by with a19-vote victory over Tim Barnes.
His attorneys alleged wide scale crossover voting by Republicans, who fielded no candidate, and charged Barnes supporters had been told to vote in the wrong primary. Kurita later ran as an independent and lost. She also filed suit against the party's action. Just recently, the U.S. 6th Circuit Court of Appeals upheld Democrats' actions.
Bilbo recalled that when Democrats "went through all of that," they were relying on one of two issues from a previous court ruling. They had to show either that there was some type of fraud committed. The second factor was "that there was so much going on that the outcome was uncertain."
But Clayton won by 48,126 votes, more than double what Davis received.
"I don't think that either one of those criteria exist in this case," Bilbo said.
Andy Sher is a Nashville-based staff writer covering Tennessee state government and politics for the Times Free Press. A Washington correspondent from 1999-2005 for the Times Free Press, Andy previously headed up state Capitol coverage for The Chattanooga Times, worked as a state Capitol reporter for The Nashville Banner and was a contributor to The Tennessee Journal, among other publications. Andy worked for 17 years at The Chattanooga Times covering police, health care, county government, ...