Stirring the recall muddle

Stirring the recall muddle

January 7th, 2012 in Opinion Times

Just when it seemed likely that a needless fringe effort to recall Mayor Littlefield over a justifiable tax increase might at last be resolved in Circuit Court next week, the issue has been elevated from a misbegotten farce to a longer running absurdity. Chris Clem, the part-time attorney for the county Election Commission, gave it longer legs Thursday with his surprise decision -- without the election commission's approval -- to expand the legal conflict to new and novel fronts.

On one front, he has wrongly undertaken to counter-sue the mayor for the cost of his challenge over the election commission's apparent failure to comply with state recall provisions for acceptable signatures and petitions before certifying a contested recall election. Clem's lawsuit, which he filed under the name of the election commission, further challenges both the constitutionality of the state recall law, as well as the state attorney general's office for its defense of the state law, which a lower court has said prevails over the city's own muddled recall statute.

Clem's counterclaims, particularly his unexpected third-party complaint against Tennessee Attorney General Robert E. Cooper Jr. over the alleged unconstitutionality of the state's recall law, is especially unusual and over-reaching. Circuit Court Judge Jeff Hollingsworth reasonably deferred his scheduled Monday hearing on the matter until February to consider the new dimensions of the conflict.

Tennessee's county election commissions operate under the Tennessee Department of State. Their duty is to fairly administer elections in an orderly, timely manner as prescribed under state law. Though majority control of the commissions rotates to the political party of the governor, these public service agencies, as an arm of the state, are supposed to function without partisan bias.

So it is unique, if not out of order, for an election commission to challenge the constitutionality of a state election law, which, having been vetted at the time of its enactment by the state attorney general's office, automatically carries the state's presumption of constitutionality. It certainly is unusual -- if not overtly partisan -- for a part-time county election commission attorney to take it upon himself to challenge both the state's recall law, and to name the state attorney general as a defendant on that grounds. Hopefully, it will be quickly kicked out when it comes to court.

The mayor has reasonably claimed that the state recall law which takes precedence over the city's less strenuous recall ordinance. Clem now alleges that the state recall law is unconstitutional because it exempts Tennessee's two largest counties.

In fact, Clem, a former state legislator, surely is aware that many state laws exempt counties and municipalities of a certain size for a variety of reasons. Exemptions may be granted, for example, because some counties and municipalities, under own charters, have already enacted laws that are more strenuous than minimal state laws.

Indeed, the only reason the state law has come into play in the city's present recall issue is because of the controversy over whether the city's own recall ordinance meets the state's minimal standards for recall elections, and whether it was legally incorporated into the city's charter.

So Clem's attempt to make an issue of the constitutionality of the state recall law is curious, and more so because he has done so without the election commission's formal approval.

The timing and breadth of Clem's response to the mayor's rather routine legal challenge is vexing for other reasons. It needlessly extends the legal wrangling, even as the commission has already wrongly begun to issue qualifying petitions for an August election to replace Mayor Littlefield, though his office has not yet legally been declared vacant. The sum of those actions reeks of broad, wrongful partisan motivation in support of the recall's sponsors.

Mayor Littlefield has a legitimate responsibility to protect his office from the dictates of a small, myopic and disgruntled minority of the city's registered voters whose recall petitions apparently fail the state's minimum standards, and turn the electoral process upside down. The election commission's apparent bias to advance the recall has been disturbing from the beginning. Clem's actions make it look worse.