Robin Smith is a Republican candidate for House District 26
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A Chattanooga attorney will represent the Hamilton County Election Commission in a lawsuit filed by Tennessee Democrats over the state House District 26 election.
Election commissioners voted 3-1 on Monday to retain Stephen S. Duggins at a rate of $290 an hour, but only after a heated exchange alleging underhanded behavior by commissioners in both political parties.
In the lawsuit, the Tennessee Democratic Party is asking for an injunction to stop the use of ballots naming Robin Smith as the Republican nominee. The Democrats claim the election commission acted illegally to reopen qualifying after incumbent Republican Gerald McCormick dropped out. If a judge agrees, the only legal candidate would be Democrat David Jones.
Commissioners' hot words Monday centered around whether minority Democrats flubbed a surprise attack planned for a July 2 election commission meeting, and if majority Republicans would have behaved differently had Democrats objected earlier in the process.
Jerry Summers, one of two Democrats on the election commission, also objected to hiring outside counsel since the Hamilton County Attorney's Office already represents the election commission.
Summers said he learned the evening of July 1 that Chairman Mike Walden would be absent the next day. As secretary, Summers said, he had responsibility to serve as chairman of the meeting. He said he instructed Elections Administrator Kerry Steelman to notify the other members the meeting would be held at 8:45 a.m., so Summers could get a medical procedure done.
But instead, Republican members Ruth Braly and Chris Clem and Democrat Secondra Meadows convened at 8 a.m., voted to put Smith's name on the ballot in place of McCormick's, and adjourned after less than 10 minutes.
At the time, Clem made a point of asking Steelman and other commissioners if anyone had raised any objections to the move.
No one had, but an attorney working for the Tennessee Democratic Party would have had he been there. Instead, attorney Benjamin Gastel was about 30 minutes late and only Summers was still there.
Summers said strongly Monday the other commissioners should have respected his 8:45 a.m. meeting time.
"I'm lined up here with three Republicans and me and them trying to make me the bad guy, and all I'm trying to do is what I've done for some 20 years, as the lawyer [for] or as a member of this commission, that is that everybody gets a fair shake. You took the back door like a shot," Summers said.
But, to a question from Clem, Steelman said the time was not confirmed, and also that Summers didn't tell him the Democrats were sending someone to try to fight Smith's inclusion on the ballot.
Clem said, "Nobody gave us a clue the state Democrat party had a complaint, an objection, they went two weeks without saying anything. All we were told was that some unknown entity might have an objection and might show up. They didn't show up. We weren't going to postpone a meeting because someone might show up and object."
"What about me showing up?" Summers responded. "Am I not a member of this commission, entitled to be present? First of all, I told him that I had had contact by Mr. Gastel in regard to the fact "
"You never mentioned names," Clem interrupted.
"By God, I did," Summers insisted.
Steelman interjected, "No sir, I asked you specifically which person, what firm?"
'You wouldn't tell us who was objecting," Clem said. "You kept that from us. If you had just told us what was happening we might have postponed it. All we knew was that you weren't coming, you might be late and no one was going to object. And we do know that you knew the Democrat Party was going to file suit, and you knew who the firm was, you never told us any of that. You kept all that secret till after the meeting."
When the Democrats' lawyer did show up, he added, "They already had a 20-page complaint ready to go, and a 15-page objection letter, which they obviously had prepared the prior week. They kept it quiet. They didn't want us to know what they were going to do."
That lawsuit was filed July 2 in Davidson County, dismissed there last week and refiled in Hamilton County Chancery Court. That caused another complication, as the case landed on the desk of Chancellor Pamela Fleenor McNutt, who paid Smith around $41,000 for professional and other services in her 2014 campaign for the seat.
The chancellor may recuse herself in favor of Chancellor Jeffrey Atherton. A hearing is set Aug. 6, four days after Election Day.
The timing of the case is a huge problem, Walden said Monday.
"Let me tell you what I care about," he said. "I care about the 10,000 people who have already voted early in Hamilton County. I care about 25 percent of those people who have already voted in District 26. That's 2,760 that have already cast a ballot."
Not only that, Walden added, early voting is more than half over, the nursing home vote has been taken and absentee ballots mailed to military members.
"The cake is baked. The election is happening," he said.
"This is ridiculous, this is much to do about nothing," he added.
"Jerry, I believe if you're sincere about wanting to save the money, then the Democrats from Nashville should quit filing frivolous lawsuits with no standing that will have the same results as happened there. The people in the 26th District will make the selection who represents them, not Nashville Democrats."
Contact staff writer Judy Walton at jwalton@timesfreepress.com or 423-757-6416.