What’s next with the petition referendum?

The petition referendum ballot item would be bad for Nashville. You can read about that here and here.

This post will focus on what happened at the Election Commission meeting on September 25, 2020, and what we can expect to happen next.

Context first

When thinking about what happened at the Election Commission meeting, there are several layers of context that are helpful to consider.

The petition is about much more than the property tax rate. Most people still don’t realize that the petition is about more than property taxes. You can find a link to the full language here. You’ll see that the petition would severely limit the Metro government’s power to issue bonds and also hamper the city’s ability to buy, sell, or lease real estate. Instead of the Mayor and Council passing laws, the petition would move the city toward a never-ending California-style series of referendum elections about all sorts of things.

As one example, the Council just passed legislation at its September 15 meeting to approve a lease with Belmont University. If the petition were law already, this lease to Belmont for a batting cage facility would have required a countywide referendum election! Same with the tax rate legislation that the Council passed in June. Same with the capital spending plan passed in March. I suspect there are probably more. But there would have been at least these three referendum elections held just in 2020 so far. This would make government more expensive and much slower.

The petition is also written in an unusual way. The Metro Charter is a formal legal document. It lays out how Metro must operate in often very technical language. The Charter is written this way for reason — in order to stand the test of time and provide clarity for all, a charter should be clear and precise in what it says. The referendum petition is not written this way. Instead, it includes argumentative political language and does not indicate how or where it would fit into the Charter. I have called it more of a Facebook post than a legal document. This is a problem that dominated much of the Election Commission’s discussion and will continue to be a major topic during any lawsuits.

Lawsuits about the petition will be confusing. One reality in litigation is that, even if a court gets to the correct answer in the end, the identity of the lawyers can impact the pace and clarity of how the case unfolds. Here, lawyer Jim Roberts appears to be both the lead author of the petition and the lead lawyer for the team behind the petition. I suspect that he may be a factor in how the case unfolds. Mr. Roberts has been disciplined previously by the Tennessee Board of Professional Responsibility with a six month suspension of his law license. You can read the hearing panel’s judgment against him here, but they used words like untruthful, evasive, misleading, and deceitful to describe his testimony and actions.

Why does this matter in how you think about what’s happening with the referendum? Based on experience, talking to others who have litigated cases with him, and the attorney disciplinary findings, my opinion is that people should expect more of the same here. He’s already called former Attorney General Bob Cooper a liar in front of the Election Commission, and I think the upcoming litigation will be unpredictable in part because of who is involved.

The Election Commission has 3 Republican appointees and 2 Democratic appointees. State law allows the party in power in the State to have majority representation on the election commissions for all 95 counties. Sometimes I see people suggesting that the Davidson County Election Commission is under the control of the mayor’s office or the Democratic party. That’s not accurate. The Davidson County Election Commission has 3 Republicans and 2 Democrats. There are multiple lawyers on the Commission — both Democrats and Republicans. The lawyers and non-lawyers on the Commission are all smart and experienced. They are definitely not as a group taking direction from anyone.

The Election Commission got a ton of legal advice before its September 25 meeting. It has been reported that the Election Commission had multiple executive sessions with Bob Cooper before its September 25 meeting. Knowing the lawyers involved and watching the meeting, it seems clear that the Commission members walked into the meeting having received substantial legal advice and, for at least two of them, having done their own independent legal research.

Timing matters. Absentee ballots started going out for the Presidential Election in mid-September, which was about six weeks before the November election. We can assume the Election Commission would like the same timing to apply for a referendum. If the referendum were held on December 5, that would leave until about mid-October to get a final answer from any litigation. In the referendum is held later, then there is more time for litigation to give us an answer about having or not having the election.

What happened at the 9/25 Election Commission meeting?

The summary is that the Commission voted 3-2 (not on party lines) to ask legal counsel to file a declaratory judgment lawsuit in Davidson County Chancery Court to determine whether the Commission has an obligation to put the petition on a referendum ballot. The Commission voted unanimously to “conditionally” set December 15 as election day if the courts order the vote to go forward. Finally, the Commission voted unanimously to also conditionally set a second ballot item coming out of the Metro Council on December 15 if there is an election that day.

One takeaway from the meeting was that all 5 Commissioners — both the Democrats and the Republicans — believed that the petition language was legally flawed. They disagreed about how much of the petition was flawed, but it was clear that all five members thought at least some of the petition should not appear on a ballot.

Republican Commissioner Jim Delanis worked hard during the hearing to “save” the petition from its legal flaws. Mr. Delanis suggested that the Commission could delete all of the argumentative political language in the petition, delete the argumentative section headings that appears in bold in the petition, and delete the section called “Issuance of Bonds.” I’ve known Mr. Delanis for years and have worked on legal matters with him in the past. To me, the fact that a strongly Republican Commissioner who is a skilled lawyer wanted to delete these portions means there’s a strong argument that at least these parts are not legally valid. He was not trying to work against the petition. He was trying to fix the most flawed aspects of the petition.

Mr. Delanis’s effort failed. None of the other Commissioners wanted to follow his lead. I suspect that the reason was that the other Commissioners (Republican and Democratic) were not comfortable with trying to guess whether registered voters would have still signed the petition with these portions deleted. Once Mr. Delanis’s effort failed, the Commission’s choices were to put the petition on the ballot, reject it, or ask a court to figure it out for them. After lengthy debate about multiple legal deficiencies in the petition, they decided to ask a court to figure it out for them.

I think the Republican Commissioners’ votes were interesting. My thought as I watched was that all five Commissioner’s were convinced that there are at least some legal flaws in the petition. I think the Republicans (other than Mr. Delanis) did not want to place a clearly flawed petition on the ballot, but they also didn’t want to reject it entirely. That left them punting it to the courts to decide what to do.

What happens next?

With the Election Commission setting December 15 as the conditional election day, any lawsuits will have to be over by roughly the end of October so the Election Commission has time to run their normal absentee ballot process. Thirty-five days to resolve litigation like this is not much time. And — for these timing issues, the reality is that if any of the lawyers engage in unconventional antics, everything will take longer.

The Election Commission agreed to meet again on September 29 with their new legal counsel. (Since the Metro government will likely have to be sued by the Election Commission as part of the upcoming lawsuit, Metro Legal will have a conflict of interest and they will not be able to represent the Election Commission in the lawsuit.) I hope the Election Commission will file its lawsuit by the end of next week and that it will ask the Chancery Court to set an expedited trial. If that were to happen in two weeks or less, I would be surprised. But if it did, that would leave only two more weeks to get through any appeals before the end of October. This timing is not impossible, but it is challenging.

Trying to predict beyond this would be difficult. There are too many variables and parties involved to see clearly what might happen beyond that.

The million dollar question is whether the courts are going to let the election go forward or not. I’ve not received any Metro legal briefing on this, but I have talked to some of the lawyers in town who litigate election issues. I think the law is designed to err on the side of allowing a citizen petition to make it onto a ballot. A petition has to be seriously flawed in its form to be rejected. This petition does have serious flaws though…enough serious flaws that Republican Commissioner Mr. Delanis felt compelled to try to fix it…enough serious flaws that a majority Republican Election Commission decided to ask a court for guidance.

Despite these flaws, there is a very real possibility that the petition will be placed on a December 15 referendum ballot.

Nashville has strong fundamentals. Most cities would gladly trade their problems for ours. It is true that the city government is undergoing a cash shortage that is largely self-inflicted. We all know this, it was a main topic for the 2019 mayoral and Council elections, but it doesn’t change the fact Nashville is a great place to be. I believe the petition goes too far and would send our city onto a bad track. While the litigation plays out, our main effort should be to beat the petition at the ballot box. And, if you signed the petition, please know that the rest of us respect your interest in how Nashville works…but please reconsider your position.

Thank you.

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UPDATE — September 28, 2020

Metro Legal issued a lengthy legal opinion today arguing that the petition language “is not legal and enforceable.” A few people have asked me what this means. One person asked me whether this means the petition is “over.”

The legal opinion doesn’t decide or determine anything. This is Metro Legal’s analysis of why Metro believes the petition is not enforceable and therefore should not be placed on a ballot. After the Election Commission’s decision on September 25 to ask the courts for guidance, people have been asking about exactly what issues will be litigated. I am assuming Metro Legal issued this opinion today at least partially in response to these questions.

I have only done a quick review and much of its looks to be well-reasoned. But this legal opinion should be viewed as argument. Metro Legal will make these arguments to a court and then the court will decide how the arguments impact the proposed referendum.