Lawsuit hearing on Tennessee House District 26 ballot delayed

Hamilton County Chancellor Jeffrey Atherton is shown in this 2012 staff file photo.

Tennessee Democrats are having a tough time getting their lawsuit over what they say is an illegal ballot substitution in a state House race into court.

Hamilton County Chancellor Jeffrey Atherton said Monday afternoon he can't hear the case until jurisdictional issues are resolved.

"Jurisdiction is jurisdiction," Atherton said during the first scheduled hearing on the lawsuit in Hamilton County. He said he needs to see an order stating the Tennessee Court of Appeals will not take up an appeal of the case.

As soon as he sees an order from the court of appeals, Atherton said, "we 'll have a hearing in as expedited a fashion as the parties can accomplish."

He set a new hearing at 1 p.m. Thursday but warned "this case will not be lingering" and if need be he'll convene court on Saturday.

The Tennessee Democratic Party sued the Hamilton County Election Commission and state Elections Coordinator Mark Goins in July after Rep. Gerald McCormick dropped out of the District 26 race and the commission voted to put Robin Smith's name on the GOP primary ballot.

The Democratic Party contends McCormick's withdrawal didn't fall under the limited set of circumstances that would allow another candidate to be chosen. The party sought an injunction to keep Smith's name off the ballot. Should it succeed, the only House District 26 candidate on the Nov. 6 ballot would be Democrat Jean-Marie Lawrence, who defeated David Jones in that party primary.

Davidson County Chancellor Claudia Bonnyman dismissed the suit for lack of jurisdiction, and the Democrats' attorney refiled it in Hamilton County Chancery Court.

But in the first hearing Monday, attorney Steven Duggan, representing the Hamilton County Election Commission, said Atherton didn't have jurisdiction as long as the case was still alive at the appeals court. He said he learned Monday the Democrats had only recently filed a motion to dismiss it.

"There's not one ounce of discretion there," Duggan said.

Attorney Benjamin Gastel, representing the Tennessee Democratic Party, tried several arguments hoping to get Atherton to take up the case. First of all, he said, the Democrats were not appealing the dismissal in Davidson County and Goins wouldn't either, since he got what he wanted. He also suggested Atherton might have provisional jurisdiction pending the appeals ruling.

And there's judicial efficiency, he added. Not only he and Duggan were present, so were Deputy Attorney General Janet Kleinfelter, on Goins' behalf, and attorney Ben Rose, representing Smith.

Nope, Atherton said. He can't act without jurisdiction.

"I get dismissed in Davidson County for lack of jurisdiction, I get dismissed in Hamilton County for lack of jurisdiction, where can I go for relief?" Gastel asked plaintively.

The cases aren't the same, Atherton replied. He hasn't dismissed the case here, but he doesn't yet have authority to hear it.

Atherton disposed of one possible stumbling block at the start of the hearing. The case landed in his court after fellow Chancellor Pam Fleenor recused herself. Fleenor had hired Smith to run her 2014 election campaign.

Atherton said he wanted both sides to know that he lived in District 26 and if they wanted him step aside, he would. None of the attorneys objected.

Gastel didn't get a chance to air the meat of the lawsuit: that the election commission made no effort to verify whether McCormick's withdrawal qualified under the limited exceptions allowing a substitute candidate. In his case, it was a provision allowing a replacement if the candidate's employer forces him to relocate for his job.

In mid-June, after questions were raised about his residency, McCormick had gotten a ruling from Goins saying he did live in the 26th District and could run for the seat. Less than a week later, he sent a letter to the election commission saying he had a job opportunity and had to move to Nashville.

Gastel said the election commission made no effort to verify McCormick's claim: commissioners didn't talk to him, or to his boss; he wasn't at the July 2 meeting where they voted to put Smith on the ballot, and the meeting was "rushed through" by majority Republicans despite a request from a Democratic commissioner for a delay.

He is seeking to interview McCormick and his employer under oath about the sudden job transfer, but Duggan, the election commission's attorney, has a motion to quash that also could be heard if and when Atherton clears himself to hear the case.

Contact staff writer Judy Walton at [email protected] or 423-757-6416.