NASHVILLE -- Some 16 years after questions cropped up that a Tennessee governor might have become temporarily unable to discharge his powers and duties because of illness, voters will be asked on the Nov. 8 ballot to decide whether to approve a proposed state constitutional provision establishing a process to provide for a temporary replacement.
Amendment 2 asks voters to decide whether to insert the new process in the state constitution for the temporary exercise of the powers and duties of the governor by the speaker of the Senate, who also has the title of lieutenant governor.
The amendment also provides the duties fall to the speaker of the House if there is no Senate speaker in office while the governor is incapacitated.
Tennessee's Constitution already makes it clear if a vacancy occurs in the office of governor due to the governor's death, removal or resignation, the Senate speaker becomes governor. The only time that's happened was in 1927, when Gov. Austin Peay died in office. He was replaced by Speaker of the Senate Henry Horton.
But unlike at least 48 other states, Tennessee's Constitution is silent on what happens if the governor becomes ill or incapacitated. It logically would fall to the Senate speaker, currently Republican Randy McNally, who also has the title of lieutenant governor. However, the state constitution prohibits anyone from serving in the executive and legislative branches at the same time.
Gov. Bill Lee, a Republican, has not engaged on the amendment.
"We're neutral and defer to the General Assembly and Tennessee voters," stated Lee communications director Casey Sellers in a text Friday to the Chattanooga Times Free Press.
The last known issue of a governor possibly becoming temporarily incapacitated to serve came in 2006 when then-Gov. Phil Bredesen, a Democrat, was hospitalized for four nights with flu-like symptoms for a suspected tick bite. Bredesen later traveled to the Mayo Clinic for a consultation but doctors were unable to diagnose the illness. He later was well enough to run and win re-election and serve a second four-year term.
But a few years later, there was an unsuccessful push for a constitutional amendment to provide for an elected lieutenant governor who could take over in the event of governor's inability to conduct business.
Proposed amendments to the Tennessee Constitution are presented as yes or no questions. A yes vote is a vote to amend the constitution and adopt the proposed language in the amendment. A no vote keeps the current language in the constitution unchanged.
Two things must occur for an amendment to pass and become part of the constitution. The first is the amendment must get more yes votes than no votes. The second is that the number of yes votes must be a majority of the total votes cast in the gubernatorial election.
State Sen. Becky Massey, R-Knoxville, the Senate sponsor of Amendment 2 now before Tennessee voters, said she believes providing for the temporary assumption of office by the Senate speaker or, if necessary, the House speaker, is needed.
"In the unusual event the state's highest elected official is temporarily unable to meet the needs of the office, it is important for the stability of our state that Tennessee's constitution lays out a clear path for the transfer of power," Massey said in a recent statement. "It is good practice to plan for all scenarios. I hope we never need to invoke this provision, but if it is ever needed, it will be really needed. It's time Tennessee joins all other states and adds this provision to our constitution. I urge all citizens to vote 'yes' on Amendment 2."
Under the provision, Massey said, if it is a "planned incapacitation" such as a major surgery, the governor would declare in writing the powers and duties of the office would be temporarily discharged by the Senate speaker. If unplanned, then a majority of the members in the governor's cabinet would submit the written declaration.
The acting governor would be authorized to perform the duties of the office until the governor transmits that he or she is able to resume responsibilities. While acting as governor, the Senate or House speaker would not receive any increase in salary.
House Majority Leader William Lamberth, R-Portland, carried the measure in the House.
"It's one of those type things where there needs to be at least rule or an arrangement so if there is a temporary incapacity of the governor that the lieutenant governor could step in or the speaker if need be and then be able to return to their duties if there is truly a temporary capacity," Lamberth said in a phone interview Friday. "To me, it just kind of makes sense."
Lamberth said he believes "most voters are pretty savvy.
"I think they'll go in, they'll read the amendment and if they feel like that's needed in the constitution, then they'll vote yes. I'll certainly be voting yes and encouraging others to do so."
During the first 2019 Senate floor debate, some of Massey's fellow Republicans raised a number of questions about the amendment which originally provided that just five members of the governor's cabinet would make the call on whether they should move to declare the governor incapacitated.
Sen. Frank Niceley, R-Strawberry Plains, said that could allow just "three rogues" to make mischief to oust a sitting governor without good cause.
Then-Senate Judiciary Committee Chairman Mike Bell, R-Riceville, agreed.
"That puts an awful lot of power in the hands of three commissioners who could declare a governor incapacitated," said Bell, calling it a "fatal flaw" in his view. Noting the U.S. Constitution's 25th Amendment requires a majority of the entire cabinet, Bell said "it would be better to require a majority at the state level too."
That would protect the integrity of the governor's office, Bell said. Otherwise, he warned, "we could thrust ourselves into a constitutional crisis."
The language was changed to include the governor's entire cabinet which is 22 people or, Bell said, 23 if the TennCare director is counted, to make the decision. Massey agreed to the change.
Amendment 2 is one of four proposed amendments to the Tennessee Constitution that voters will see on the Nov. 8 general election ballot.