Nashville judge dismisses suit seeking to keep Republican Smith off ballot; Democrats could appeal or refile

Robin Smith is a Republican candidate for House District 26
photo Robin Smith is a Republican candidate for House District 26

NASHVILLE - A Nashville judge on Tuesday dismissed Tennessee Democrats' lawsuit against the Hamilton County Election Commission, which was filed when commissioners let Republican Robin Smith replace state Rep. Gerald McCormick, R-Chattanooga, on the primary ballot after the withdrawal deadline for the Aug. 2 election.

Davidson County Chancellor Claudia Bonnyman, who had just decided to transfer the suit to Hamilton County courts, agreed to dismiss it at the request of Nashville attorney Ben Gastel, who was representing the state Democratic Party.

Calling it an "odd situation," Gastel told Bonnyman, "I'd almost prefer this be dismissed than the transfer."

That prompted further discussion. With no objections from Nashville attorneys Tim Warnack and Greg Reynold, who are representing Hamilton County, Bonnyman dismissed the suit and directed Gastel to draft a proposed order.

Gastel had no immediate comment after the hearing, saying he needed to speak with state Democratic Party officials.

But Tuesday's dismissal of the case could enable state Democrats either to appeal to the Tennessee Court of Appeals or file suit in Hamilton County Chancery Court.

Early voting in the election began last week and continues through July 28.

Tuesday's hearing in Bonnyman's courtroom was the third since the suit was filed July 2. That was the same day the Republican-controlled local election commission approved Smith coming onto the ballot in the Aug. 2 state primary election.

The suit accused the local election commission of improperly reopening candidate qualifying after McCormick abruptly dropped out in mid-June after the regular deadline for withdrawal.

Successfully removing Smith from the ballot was a move virtually guaranteed to let Democrat David Jones win the Nov. 6 general election in the Republican-leaning House District 26 now held by McCormick.

"As far as Ms. Smith is concerned, she's very pleased with the outcome," said Nashville attorney Ben Rose, who is representing her after the decision.

Rose said Smith "understands the process is not completed, wishes this had never happened. It should never have been filed in Nashville. You don't go to Nashville to resolve a Chattanooga election."

While not a party in the lawsuit, Smith hired Rose's firm to fight any effort to make her part of it.

The suit stems from McCormick, a real estate broker, telling commissioners in a letter last month that he had to withdraw from the race after the normal deadline because he is taking a job in the Nashville office of a Chattanooga-based engineering firm. It requires him to live in Nashville full time, he said, and no longer be a Hamilton County resident under state election law.

A candidate who is required by an employer to relocate outside the area he or she seeks to represent is one of several limited circumstances in state law that lets local election commissions reopen candidate qualifying after the withdrawal deadline has passed.

Smith, a former Tennessee Republican Party chairman, quickly assembled the required signatures of voters. Commissioners voted July 2 to let her run and OK'd a new ballot with her name on it.

State Democrats, however, cried foul, arguing that McCormick's job-related move was a mere "pretext" improperly used by commissioners and Republicans to reopen qualifying.

The state party's aim was to keep Smith off the ballot, thus virtually guaranteeing Jones would win with no GOP opponent.

McCormick's withdrawal came not long after local Democrats began questioning whether McCormick remained a qualified resident of the district, which includes parts of Chattanooga and Hixson.

A former House majority leader who was openly planning to run for House speaker after the fall elections, McCormick and his wife, Kim McCormick, a top aide to Tennessee Board of Regents Chancellor Flora Tydings, purchased a $487,032 home in Nashville last year.

McCormick said his wife's job required her to be in Nashville full time. But he maintained he was still a lawful resident of the district he represents.

The mortgage, signed by both McCormicks, said the Nashville home was their "principal" residence. But McCormick said his residence in Chattanooga is his actual home.

State Election Coordinator Mark Goins, a Republican, investigated and declared in a letter to the election commission that after looking at McCormick's tax returns, business licenses, utility bills and other documents McCormick was a legal resident of the district.

The suit charged McCormick's claim he had to move came just five days after Goins' assertion that McCormick was legally qualified to run in Hamilton County wasn't credible.

Before Tuesday's late-afternoon developments, Democratic attorneys sought to drag the state of Tennessee into the lawsuit, a move they hoped would keep the case in Nashville.

Gastel told Bonnyman that a filing on behalf of Hamilton County Administrator of Elections Kerry Steelman revealed state Election Coordinator Goins had advised Steelman in advance of the local commission's July 2 meeting.

Contact Andy Sher at [email protected] or 615-255-0550. Follow him on Twitter @AndySher1.