The first hearing in a lawsuit by the Tennessee Democratic Party over the House District 26 Republican primary is set for Friday in Nashville.
State Rep. Gerald McCormick, R-Chattanooga, speaks alongside Tennessee Secretary of State Tre Hargett as he launches the state's new online voter registration system Wednesday in Hixson, Tenn. at Dominion Senior Living.
Robin Smith
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State Democrats filed suit Monday against the Hamilton County Election Commission for allowing a new candidate to be chosen after incumbent Rep. Gerald McCormick abruptly quit the race after the withdrawal deadline.
On Thursday, election commissioners voted to hire a Nashville attorney Tim Warnock, with Riley Warnock and Jacobson, to defend the commission. They approved a rate of $400 an hour with a maximum expenditure of $50,000.
Commissioner Chris Clem, an attorney, told his colleagues he researched several firms in Nashville and Warnock was one of two attorneys recommended to him.
Commission Chairman Mike Walden said a Nashville attorney is needed because the lawsuit is filed in Davidson County Chancery Court. The attorney who filed it on behalf of the Tennessee Democratic Party is Benjamin A. Gastel, of Branstetter Stranch and Jennings LLC in Nashville.
The suit accuses the election commission of improperly opening candidate qualifying after McCormick dropped out in mid-June.
McCormick told the election commission he had to withdraw because he had taken a job that would require him to move out of the district.
That's one of the limited circumstances that would allow reopening candidate qualifying after the normal withdrawal deadline. Local businesswoman and GOP activist Robin Smith then qualified for the seat, and the commission voted Monday to approve a new ballot with her name on it.
Democrats, though, contend McCormick's job-related move was a mere "pretext" commissioners improperly used to reopen qualifying.
According to the lawsuit, after a question was raised about his residency, McCormick had just gone to a lot of trouble to prove he lived in Hamilton County and was qualified to run for and hold the District 26 seat.
The suit contends McCormick's claim just five days later that he had to move to Nashville for his job is not credible. The election commission has not filed a reply to the suit, but Clem and Walden both noted at Thursday's meeting that no questions or objections were raised between McCormick's Jan. 18 withdrawal and Monday's vote to put Smith's name on the ballot in his place.
After that meeting was adjourned, Gastel came to the election commission office and gave Elections Administrator Kerry Steelman a letter objecting to the action. He filed the suit later that day.
The lawsuit asks for a declaration that McCormick's withdrawal doesn't actually fit into the list of reasons why qualifying may be reopened and an injunction to stop the commission from using ballots with Smith's name on them.
If a judge agrees, the Republicans wouldn't have a candidate on the District 26 ballot and Democratic candidate David Jones could expect to win.
Tennessee Democratic Party Chairman Mary Mancini said in an emailed statement that the county election commission "failed to meet" its obligation "to independently research the circumstances surrounding Rep. McCormick's abrupt departure and ensure the law was followed."
"This turn of events deserves proper scrutiny. The voters of HD-26 should be able to participate in a democratic process that's unmarred by political motivations, and where all candidates rightfully earn their spot on the ballot," Mancini added.
"Democratic candidate and local business owner David Jones will work hard to serve his neighbors in the Legislature, and is ready to step up and fight for better-paying jobs, a quality education for every child, and affordable health care for all."
Smith, who attended the commission meeting, said afterward that she intends to keep campaigning for the seat.
She said Democrats "have a long history of being unable to win at the ballot box" and said that while Republicans "win hearts and minds with policy," Democrats "resist, litigate and attempt to steal elections and disenfranchise the voters."
Smith said she will hold a campaign kickoff July 16 "to allow voters of District 26 to voice their preference, and not the courts in Nashville."
District 26 includes Harrison, Lakesite, Red Bank, Soddy-Daisy and part of Chattanooga.
Early voting starts July 13 for the Aug. 2 election.
Contact staff writer Judy Walton at jwalton@timesfreepress.com or 423-757-6416.