This is the last of our seven posts on key races and issues on the November 4, 2014 ballot. Back in River City earlier covered Amendments One, Two, Three, and Four; Tennessee Senate District Races 29 and 30; and City of Memphis ordinance 5512. Early voting is underway at these locations. For a sample ballot, click here.
9th Congressional District
Tennessee’s 9th Congressional District was created in 1823. It survived until 1973, when Tennessee was cut down to eight districts because the 1970 census showed our population had not grown proportionately with the rest of the U.S. After better results in the 1980 census, the 9th District was re-established in 1983. New boundaries were drawn to create a black-majority district, according to Wikipedia. Harold Ford, Sr. was elected to represent the new district in 1983, after representing the old 8th district since 1975. His son Harold Ford, Jr. followed as congressman from the 9th District from 1997-2007.
Click here for interactive map of the 9th District.
Rep. Steve Cohen
Steve Cohen ran unsuccessfully against Harold Ford, Jr. in the 1996 primary. When Harold, Jr. decided to run for the U.S. Senate in 2006, Steve Cohen ran again. This time, he trounced Jake Ford (Harold, Jr.’s younger brother) and Rep. Mark White, winning 60% of the vote and breaking the Ford dynasty’s hold on the seat. (Jake Ford ran as an independent candidate.) Rep. Cohen has since easily beaten three African-American challengers in Democratic primaries for the seat: former Ford aide Nikki Tinker in 2008; former Mayor of Memphis Willie Herenton in 2010, and Memphis Urban League president and Memphis City Schools board member Tomeka Hart in 2012. He also sailed through each general election. Republicans made no attempt to capture the seat in 2008. In 2010, Rep. Cohen won with 74% of the vote over black Republican Charlotte Bergmann. In 2012, the Congressman walked away with 75% of the vote against challenger Dr. George Flinn, a white Republican.
By most accounts, Steve Cohen does what a congressman representing Shelby County is expected to do. He stays true to the liberal Democrat Party platform and supports President Obama. His office is responsive to constituent concerns. He works to bring home federal grant money. He seldom misses the funeral of an influential African American who dies in Memphis, and makes time to show up for barbecue in Orange Mound when he’s in town. He even attempted to join the Congressional Black Caucus (CBC) when he first arrived in Washington in 2007. (The CBC said, uh, thanks, but No.)
For the most part, Rep. Cohen is liked by his district, 60 percent of which is African American. He is smart and hard working. He earned his political spurs by serving for 24 years as a state Senator. He is revered by Midtown white liberals and ardently supported by East Memphis Jewish voters (Rep. Cohen is Tennessee’s first Jewish congressman.) So popular is Rep. Cohen that many Memphians claim he is unbeatable.
But all is not sparkling with fairy dust in Cohen-land. He embarrassed himself and his constituents in 2013 when he was caught tweeting ILU (texting abbreviation for I love you) to a voluptuous, 21-year old blonde model during the President’s State of the Union message.He initially denied romantic involvement with Victoria Brink, then divulged that she was his daughter by a former friend-with-benefits. Later, a paternity test revealed that Ms. Brink was not his daughter; he had been misled. Rep. Cohen then made national news by tweeting about a tow truck driver’s josh to him that he must be black because his Cadillac had broken down and he was having paternity issues. News commentators deplored the tweet as racist. Rep. Cohen’s response to the flak was,
“My constituents don’t look at me as a white person. They say, ‘You’re one of us. And I took it was [sic] a compliment. I hear it in Memphis all the time.”
Rep. Cohen’s 9th District detractors – both black and white – called the comment pandering to the African-American voting block that keeps him in office.
Despite Rep. Cohen’s robust and widespread popularity among local Democrats, a significant percentage of his African-American constituency want him replaced, either because he is too white or too liberal. He is a member of the Congressional Progressive Caucus and supports gun control, gay marriage and the legalization of marijuana – positions that rankle both blacks and whites with traditional views.
Conservative black ministers in Memphis have long been offended by Rep. Cohen’s progressive stances, reaching back to his persistent and ultimately successful sponsorship of a state lottery when he was a Tennessee State Senator. In 2005, he was one of only three Senators to vote against the Tennessee Marriage Protection Amendment, later approved by voters in a statewide referendum. In this year’s campaign for re-election, Rep. Cohen faced Rickey Wilkins, a well known black attorney with strong Memphis political ties. A commenter on a September 2013 article in the Memphis Flyer put into writing a rumor heard throughout the city:
What Cohen fail [sic] to understand the [sic] majority of the black ministers are not going to allow him in their churches to speak as they did in he [sic] past….The word is out “Shut Cohen Out”
In the end, Rep. Cohen defeated Mr. Wilkins by a typically Cohen-style margin of 66%-33%. That said, Mr. Wilkins won a higher percentage of the vote against Rep. Cohen than had any previous challenger.
The local news media, who passionately support Rep. Cohen, have not mentioned the Congressman’s greatest point of vulnerability in the 2014 election: his irrelevancy. As a Democrat in a solidly Republican House of Representatives, Steve Cohen can do little of substance for the people of Memphis for the next two years, especially in the lame duck term of an increasingly unpopular President.
Full disclosure: I met Charlotte Bergmann two years ago after seeing the movie Runaway Slave, which she helped to bring to Memphis. She introduced me to Frederick Douglass Republicanism (more about this below) and quickly became a dear friend to both Eddie and me. With the license granted to bloggers but not to professional journalists (and with apologies to Rep. Cohen, whom I do not know personally), I will refer to her as Charlotte.
It takes a gutsy Republican to go up against popularity and voter loyalty on the scale of Steve Cohen’s. Not one bothered to run in 2008 against the Democrat incumbent after his first term. Then, out of nowhere, Charlotte Bergmann appeared in 2010. A political newbie who was unknown to the public, Charlotte won 25% of the vote against Rep. Cohen in the general election in 2010. She ran again in 2012, but lost in the primary to Dr. George Flinn. Dr. Flinn ran a $1.6 million campaign, primarily financed by his own funds. In the general election against Steve Cohen, Dr. Flinn amassed only a third of the 33,000 votes Charlotte Bergmann won in 2010 on a $250,000 budget.
The word plucky was invented to describe people like Charlotte Bergmann, attempting now for the third time to replace Steve Cohen as congressman for the 9th District. Charlotte has known hard times and what it takes to beat them.
The contrasts between the two contenders could hardly be more stark. One is a white, male, Jewish child of privilege; son of a Memphis pediatric psychologist; a career politician; never married; loyal to liberal causes. The other is black, female, unabashedly Christian; daughter of a pastor/postal worker; previously married with time also as a single mother of three, now a grandmother to 14; and a committed conservative. He graduated from high school in Coral Gables, Florida while his father completed a medical fellowship; earned an undergraduate degree from Vanderbilt University and a law degree from Memphis State (now the University of Memphis). She graduated from Northside High School in Memphis, worked her way through both State Technical Institute (now Southwest Tennessee Community College) and Christian Brothers University (CBU awarded her a partial scholarship).
Though brought up in a typical black Memphis family, with pictures of John F. Kennedy, Robert Kennedy and Dr. Martin Luther King on the living room mantle, Charlotte Bergmann found her way to the Republican Party through her commitment to ensuring a good education for her children in the Memphis City Schools. One day in the 1980’s, Charlotte boarded a bus for Nashville with fellow PTA members to lobby for Gov. Lamar Alexander’s Better Schools Program. It was her first experience with politics, a seed that grew and blossomed. Along the way she realized that the Republican Party aligned more with her traditional values than the Democratic Party she grew up with. She worked on several Republican campaigns, including 7th District Congressman Ed Bryant’s 2002 senatorial bid against Lamar Alexander.
Like many black Memphians, Charlotte Bergmann owes allegiance to FedEx for giving her entree to the workplace and an opportunity to grow and thrive in the corporate world. Sorting packages in the hub helped pay her way through community college. Her CBU degree, IT skills and organizational know-how eventually landed her a respected and responsible position in FedEx’s IT project management. Financially secure at last, Charlotte moved into her dream house in an East Memphis subdivision, complete with a pink Jacuzzi. Then calamity struck. After ten years at FedEx, her position was eliminated in a 2000 corporate cutback.Her journey back to financial stability has been bumpy but resolute. The Memphis job market was tight. A marketing firm she launched with several partners failed to thrive in a depressed economy. Charlotte fought with all she had, but eventually lost her home to foreclosure. She was homeless for awhile, living with family and friends and eventually out of her car.
Today she is managing partner of an elder care business started by her sister, in addition to co-hosting a weekly talk show on KWAM 990 with fellow black conservative Charles Johnson. Charlotte also spends a great deal of time in community service. She is a board member of Sober House Homeless Mission, program chairman for the Golden K Kiwanis, member of the Memphis Gavel Club, and a volunteer for the American Cancer Society.
The years of trial were pivotal to the growth of Charlotte Bergmann’s interest in politics. Frustrated by the lack of employment opportunities in Memphis, Charlotte began to lobby elected officials in Washington, DC to bring more jobs to Memphis. She financed multiple trips to DC from her FedEx severance package. Gradually, Charlotte learned how to gain access to the halls of power and the people who occupy them. She developed contacts and friendships with political luminaries who appreciated her integrity, intelligence, charm, authenticity, tenacity, and growing political astuteness.
While in Washington, she was introduced to the burgeoning black conservatism movement and Frederick Douglass Republicanism. It was then that Charlottte Bergmann knew she had found her political soul. Frederick Douglass Republicans (FDRs) are people of all races, creeds, and economic classes with a passion for liberty. They believe in four principles that defined the remarkable life’s journey of former slave and venerated human rights activist Frederick Douglass:
- Respect for the Constitution.
- Respect for life.
- Belief in limited government.
- Belief in personal responsibility.
Frederick Douglass Republicans are not a branch or official subset of the Republican Party. They represent what the Republican Party was at its founding, and what it could be again under the leadership of statesman-patriots who are unafraid of paying allegiance to founding American principles.
Most people who are FDRs don’t know it yet because they haven’t heard of Frederick Douglass Republicanism. (That group used to include me. Now, because of Charlotte Bergmann, I proudly proclaim my only political alliance: not Democrat, not Republican, no longer Independent, but a Frederick Douglass Republican.)
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The local news media, solidly behind Steve Cohen, have ignored Charlotte Bergmann as much as possible. Former diplomat, UN Ambassador, and presidential candidate Dr. Alan Keyes, one of this era’s most gifted speakers, visited Memphis twice to support Charlotte’s campaign. Local news outlets (including the Tri-State Defender) were generally oblivious, as they are to any prominent black conservative, up to and including Dr. Ben Carson. It is too embarrassingly clear that most local and national black opinion leaders are determined to keep African Americans manacled to the Democratic Party, even though it no longer represents the values of those who are socially conservative and Christian; takes their votes for granted; and has left most African Americans no better off after fifty years of liberal entitlement policies.
But black conservatism has established a foothold in Memphis. In addition to Straight Down the Line with Charlotte and Charles, KWAM AM 990 also airs the Herman Cain show. News-talk radio WKIM FM 98.9 airs the popular Andrew Clarksenior six days a week. Nineteen months after we first wrote about Dr. Ben Carson on Back in River City, that post drives more traffic every week to this blog than anything we have ever written.
In the end, it will be black Memphians who decide whether Charlotte Bergmann will replace Steve Cohen in Washington to represent the 9th District. While the district was redrawn in 2010 to encompass parts of Whitehaven and Millington with a higher proportion of people who consider themselves to be Republicans or moderate-to-conservative Independents, it is still the 39th strongest Democrat stronghold in the U.S. House of Representatives.
Charlotte Bergmann has been part of the black community in Memphis all her life. Everywhere she goes, she has told us, African Americans whisper to her that they support her, but fear reprisals from their friends and neighbors if they do so openly.
What a voter does “behind polling booth curtains” no one else need know.
It will be interesting to see what happens when all the ballots are counted on November 4th. Whether she wins this race or not, Charlotte Bergmann has won hearts and minds in every neighborhood in this city. She has broken new political ground that bodes a better future for a community struggling to find prosperity, peace, and racial harmony.
We are proudly voting for our friend Charlotte Bergmann.
This post has been updated from its original version.
This is the sixth of seven posts Back in River City is publishing about key races and issues on the November 4 ballot, including proposed Tennessee Constitutional amendments One, Two, Three and Four; Tennessee Senate District 29 and District 30 races, and today’s explanation of proposed Memphis City ordinance 5512 governing civil service appeals. Our next and final post will cover the 9th District Congressional race between incumbent Steve Cohen and Republican challenger Charlotte Bergmann. Early voting is underway at these locations. Click here for a sample ballot.
City of Memphis Charter Amendment (Ordinance 5512)
Charter ordinance 5512 proposes changes to the Memphis city charter in the way civil servant appeals and promotions are handled by the City of Memphis. The ballot wording is inexplicit:
Improve effectiveness of Civil Service hearings
Shall the Home Rule Charter of the City of Memphis, Tennessee be amended to update the Charter provisions relating to the Civil Service Commission to: 1) increase the number of Civil Service Commission members, 2) make administrative updates to civil service hearing process and procedures and 3) allow the Director of Personnel to consider performance as a measure for personnel evaluations?
This is the kind of proposal that many would consider ballot filler. It is obscure, arcane, and arguably irrelevant to the average Memphis voter.
So just check any box or skip it completely and move on, right?
Please don’t. Ordinance 5512 requires a change to the city charter (which is why its passage is subject to a referendum by the people), so be a good citizen and take a closer look.
The Civil Service Commission (CSC) is a board appointed by the mayor to “conduct hearings to review disciplinary actions, limited to suspensions, dismissals or demotions.” According to Memphis City Councilman Kemp Conrad, problems with the current process include a large backlog of appeals that may take up to two or three years to be heard. The city charter provides for appeals to be heard within 60 days of filing.
Councilman Conrad helped to craft the amendment and sponsored it before the Council. He wrote the following summary as an explanation to voters. Councilman Jim Strickland recently shared the summary with Eddie Settles of Back in River City.
In November the citizens will vote to change the Charter (e.g. Constitution) of the City of Memphis, Tennessee. If approved by a majority of voters the civil service commission would change as follows:
1. Increase the number of civil service commission members,
2. Give the ability to make Administrative updates to civil service hearing process and procedures, and
3. Allow the Director of Personnel to consider performance as a measure for personnel evaluations. [It is breathtaking to discover that promotions and pay increases are being granted to civil service employees, including fire and police, without consideration to actual job performance.]
MAIN REASONS TO VOTE YES
1. Better People means Better Service. This amendment allows us to take care of the good employees.
· We have some really good employees in the government. The problem is it’s hard to retain them. Right now if you want to give a raise to a government worker, everyone gets the same amount. No matter how well they do their job. With these changes we can do more to take care of the people that work harder.
· These changes allow us to take care of the good employees that take their job seriously and truly do a good job.
2. Stop rewarding bad behavior.
· Currently if an employee faces criminal charges, they can place their civil service matter in abeyance and receive back wages. This leads to lengthy and expensive continuances. This amendment puts an end to that. Employees would still be able place a matter in abeyance during criminal proceedings, but would no longer receive back wages during this time.
3. We need to make faster better decisions when dealing with employees.
· It could take months for the current board to make decisions or hold employee hearings. A simple fix of changing the civil service board structure will make a big difference.
· There are currently no procedural rules are in place for conducting evidentiary hearings. The Commission should be allowed to adopt procedural rules which would govern the proceedings and get more cases resolved faster, creating better outcomes for both the city and the employees. This amendment allows for those procedures to be established.
In addition to those named above, specific changes authorized by passage of 5512 would include:
- Increasing membership of the Civil Service Commission from seven to 14. [The CSC’s webpage only shows two existing members, both of whose terms expire November 30, 2014.]
- Requires that seven members be lawyers, judges, or administrative hearing officers.
- Provides for one of the judicially trained members to serve as a hearing officer, but an employee may appeal the decision of the hearing officer to the full commission. [Hearing officers would be selected “at random.”]
What Are the Arguments Against 5512?
According to an October 21, 2014 Commercial Appeal article and Memphis Police Association (MPA) Facebook posts, MPA objects to 5512’s inclusion of language allowing job performance to be considered in promotions and pay raises. MPA President Michael Williams alleges that provision was inserted by city officials after MPA agreed to the body of the ordinance, and is urging MPA’s members to vote against it.
[This is evidence to us at Back in River City that Michael Williams and the MPA live in an alternate universe where merit should not affect salary increases and promotions. If Mr. Williams runs for mayor of Memphis in 2015 as expected, it could be an entertaining campaign.]
Back in River City’s Take on 5512
There are many unanswered questions about 5512, including, What is the fiscal impact?
The Commercial Appeal’s article on the proposed ordinance quoted Councilman Conrad as saying that,
” . . . members [of the CSC] are paid $400 for a full day hearing, $200 for a half day hearing, and $100 for writing a formal opinion…”
Prior to October 1, 2013 (5512 was passed on its third reading by the Memphis City Council August 20, 2013), CSC members were paid $200 per day for a full hearing. Trusted sources have told Back in River City that the pay hike is intended in part to improve CSC attendance (some meetings have apparently been cancelled for lack of a quorum) and to attract the seven new attorney members provided for in 5512.
No one has informed the public how much it will cost taxpayers to double the size of the CSC and to double their pay. How many meetings will be called? How many hearing days will be necessary to hear the backlog of cases and ensure that appeals filed in the future will be heard within the 60 day period required by law?
By comparison, Shelby County’s civil service commission has six members, each of whom receives $50 per diem for their service. On average, they hear 30 cases per year.
We don’t know how many cases are waiting in the purgatory of the Memphis CSC’s backlog. We don’t know why doubling the size of the membership will facilitate the work of the CSC (especially when they are already having problems getting a quorum. Coordinating seven practicing attorneys’ schedules plus seven other Commission members?). We don’t know the average number of cases heard by the CSC each year. We don’t know all we would like to know as taxpayers about the annual number of appeals resulting from criminal charges against Memphis civil service employees; or the frequency and amount of back wages awarded when such appeals have been held in abeyance.
We don’t know why the labor unions reportedly wanted all 14 members of the CSC to have legal training (the final version of 5512 calls for seven). More importantly, what would prevent those lawyers (or other hearing officers) from benefitting, either directly or indirectly, from their service on the CSC (aside from the direct meeting fees paid)? Are provisions in place to prevent direct conflicts of interest?
Here’s an idea: why couldn’t the two existing Memphis City Court judges be used as civil service hearing officers?
Since Memphis voters are asked to approve this new mechanism, is it too much to ask for more explanation about what’s broken about the current system, and why 5512 is the best way to fix it?
We at Back in River City understand that changes need to be made to improve existing civil service procedures. We’re all for treating good employees well and allowing the city to rid its ranks of poor performers. We respect and appreciate the efforts made by Councilman Conrad and others who worked hard to seek solutions and to write an ordinance acceptable to all parties involved. We are not convinced that 5512 is the best solution, however, because we haven’t been given enough information.
Our friend and favorite government watchdog Joe Saino, who covered 5512 on his blog MemphisShelbyInform.com, shares some of our misgivings. Joe says he will vote Yes on 5512, but “reluctantly.” If 5512 is voted down, it will be back to the drawing board for a different, hopefully better, version. That version would likely not come before the voters until November 2016. In the interim, Memphis will elect a new mayor and city council. Will the new team be more fiscally conscientious? Work as effectively with unions? Have better ideas? Share more information with the voters when asking us to approve a change in the city charter?
As we’ve said before in this series,
Back in River City is all about making government accountable for good public policy. Because of the questions outlined above, we are voting No on 5512.
Message to City Council and local news media:
Most of us want to be smart voters. We care about Memphis and want it to be a better place to live for everyone. To do our jobs as good citizens, we need facts and background about the issues. Don’t expect us to vote Yes on everything you put before us, or depend on editorials to forge our opinions on issues. Educate us, engage us, and respect us. We are all on the same team.
This is the fifth in a series of articles Back in River City is publishing on key issues and races in the November 4, 2014 election. Early voting is already underway; you may vote at these locations through October 30th. Click here to see a sample ballot.
Tennesseans approved a state constitutional amendment in 2002 to permit a state lottery. That amendment also allowed non-profit organizations falling under section 501(c)(3) of the Internal Revenue Service Code to incorporate raffles and certain other games of chance into their annual fundraising events. Each event requires legislative approval by a 2/3 vote of the Tennessee General Assembly (TGA). Organizations are eligible for tax-exempt 501(c)(3) status if their primary purpose is charitable, religious, educational, scientific, literary, testing for public safety, fostering amateur sports competition, or preventing cruelty to children or animals.
The 2002 amendment excluded veterans’ organizations, which fall under IRS code section 501(c)(19) (defined as “Post or Organization of Past or Present Members of the Armed Forces).” Amendment Four would extend the same rights to 501(c)(19) organizations as those held by 501(c)(3) designates.
Arguments for Amendment Four
This isn’t mentioned in news about Amendment Four, but it may not be a coincidence that a bevy of skillful volunteers have struggled for the past two years to raise $23 million to build a much-needed West Tennessee Veterans Home. Holding an annual raffle couldn’t hurt.
Arguments Against Amendment Four
Veterans’ organizations have a very checkered history in Tennessee. The FBI’s Operation Rocky Top public integrity scandal in the 1980’s generated national headlines about Tennessee’s rigged bingo games, many run by organizations related to veterans. Fortunately, bingo is now outlawed in Tennessee, and Amendment Four’s requirement that a 2/3 majority of the TGA must approve each single event that includes gaming by an approved organization arguably affords protection against the bingo hall conditions that lured organized crime to Tennessee 30 years ago. Even so, the extension of state-sanctioned gambling creates additional opportunity and temptation for organized crime to benefit from players’ compulsive behaviors.
Veterans organizations may have been intentionally omitted from the 2002 amendment legalizing gaming for 501(c)(3) organizations. A Johnson City Press columnist wrote:
When the then Democratic-led General Assembly finally voted to place a lottery referendum on the ballot in the late 1990s, Nashville was still reeling from “Operation Rocky Top,” which was an FBI investigation into bingo and other forms of illegal gambling in Tennessee. Investigators found bingo games for several charities were being operated by professional gamblers.
These games made millions of dollars, but few of those proceeds were going back to the legitimate charities.
Tennessee Secretary of State Gentry Crowell’s office (which licensed the bingo halls) became a point of interest for investigators, so did powerful Democrats on Capitol Hill who helped gamblers get bingo licenses.
All this came to a head in 1989, which was my first year as a reporter in Nashville covering the General Assembly. The investigation resulted in one state House member going to prison and another, state Rep. Ted Ray Miller, D-Knoxville, taking his own life. Crowell also committed suicide days before he was to testify to a grand jury on the matter.
I recall Republicans in the General Assembly at the time arguing that Rocky Top proved state lawmakers could not be trusted to legislate gambling in Tennessee. They urged their colleagues to leave the constitution alone.
Ten years into the Tennessee Lottery, Many Tennesseans still oppose gambling for moral and practical reasons. State-sanctioned gambling may be sold under the feel-good guise of boosting funds for educating needy students, but gambling can also wreck the lives of individuals and families and increase taxpayers’ contributions to correctional expenses.
Back in River City’s Take on Amendment Four
Call us kill-joy moralists, but we don’t see a compelling argument for extending the scope of legalized gambling in Tennessee. It may look like a dandy source of new revenue for state coffers and for benevolent organizations who seek to do good in our communities, but gambling can have undeniable, harmful consequences.
The Problem Gambling Institute of Ontario warns that gambling addiction not only creates financial problems for many families, but can lead to depression; anxiety; isolation from loved ones; verbal and physical abuse of a spouse, child, or elder; and increase risk of suicide. The families most susceptible to being hurt by gambling are those already suffering from job loss, deprivation, and insufficient income.
A commenter to a 2010 New York Times article had this to say:
Even if one grants the premise that individuals who develop gambling problems should be held responsible for their choices, the damage that gambling causes is not limited to the individuals putting the money down on the table or into the machines. It also affects families and communities. My mother developed a gambling problem in Oregon, where the state relies heavily on gambling revenues to substitute for revenue it is either unwilling or incapable of raising through taxes. I have never understood the appeal of gambling and have never made any decision to gamble beyond blowing $10 on slot machines during my only trip to Vegas . . .
Nevertheless, gambling has ruined the past three years of my life, as I was convinced by my mother to hand over all of my available earnings in an effort to save my family’s house from foreclosure, until finding out that she had actually taken a second mortgage and gambled away all the equity. . .
people do not live in isolation from each other, and while you can criticize people like my mother for being weak-willed and “stupid” . . . I can just as easily point to the irresponsibility of voters and politicians who like government spending, but don’t want to fund it with sufficient taxes, so they choose instead to prey on the vulnerable for extra revenue. State-sanctioned gambling has cost me everything–my savings, my credit, my mother, and my mental and emotional well-being–and I didn’t have to gamble a cent for it to do so.
We are voting No on Amendment Four.
This is the fourth in a series of Back in River City articles covering key issues and races on the November 4, 2014 ballot. Early voting is available at these locations through October 30th. Click here for a sample ballot.
Tennessee is one of only nine U.S. states that does not have a personal income tax. Like New Hampshire, Tennessee does levy a tax on certain stock dividend and interest income. The other seven states – Alaska, Nevada, Florida, South Dakota, Texas, Washington and Wyoming – do not tax any form of personal income.
Amendment Three expressly prohibits the Tennessee General Assembly from levying, authorizing or permitting any state or local tax on payroll or earned personal income. It also prohibits local and county governments from doing the same.The amendment allows for the continuation and future adjustment of state taxes on individuals’ dividend and interest income by exempting taxes in effect on January 1, 2011.
Why Is Amendment Three Needed?
Tennessee’s constitution currently states,
“The Legislature shall have power to levy a tax upon incomes derived from stocks and bonds ….”
but does not provide for a state income tax on earned income. Revenue-seeking lawmakers, however, have attempted at least five times since 1932 to pass legislation authorizing a state income tax. In 1932 and again in 1960, the Tennessee Supreme Court (TSC) appropriately ruled such attempts to be unconstitutional. Nevertheless, additional attempts were made in 1985, 1991, and in four sessions under former Gov. Don Sundquist (1999-2002). Three separate Tennessee Attorneys General have opined that, since our constitution does not expressly prohibit such a tax, the TSC might uphold legislation authorizing a tax on earned income or payroll.
Amendment Three is designed to put the issue to rest permanently. If passed, Tennessee taxpayers will be assured that future legislatures cannot consider a general income tax to balance the state budget.
In 2002, when imposition of a personal income tax seemed likely, a strident grassroots revolt led to a partial three-day shut-down of state government. Thousands of protestors flooded Capitol Hill in Nashville waving signs. Honking motorists circled the Hill for hours. The will of the people won out, and Tennessee legislators have generally refrained from broaching the subject ever since.
Arguments for Yes on Three
According to a Forbes opinion piece by entrepreneur and tax reform advocate Travis H. Brown,
A “yes” vote on Amendment 3 is absolutely critical for the continued economic growth of the Volunteer State.
Mr. Brown, author of How Money Walks – How $2 Trillion Moved Between the States, and Why It Matters, uses IRS data as evidence that Tennessee gained $10.55 billion in net adjusted gross income between 1992 and 2011 from other states. Most of this wealth bled from states with high tax burdens, including California, Michigan, and Illinois. Mr. Brown quotes the mantra of renowned economist Dr. Arthur Laffer,
“Taxation doesn’t generate revenue, it moves people.”
State Sen. Brian Kelsey (R-Germantown) sponsored the amendment legislation in the Senate and heads the statewide Yes on 3 organization. He has stated,
“Not having a state income tax has already brought jobs to Tennessee, and being able to tell employers we’ll never have one is going to bring even more jobs.”
Here’s how Tennessee’s Department of Economic Development woos new business and industry to the state:
Tennessee has long been considered a state with one of the most business-friendly economic climates in the nation with one of the nation’s lowest per capita tax burdens, no tax on personal income and no state property tax.
Arguments for No on Amendment Three
Opponents argue that Amendment Three will impose too great a burden on state budget-balancing. They also contend that eliminating the option of raising new taxes on payroll or earned income will inevitably lead to increases in sales and property taxes. Sales taxes, especially taxes on necessities such as gas and groceries, are said to be regressive because they are uniformly applied and therefore consume a higher percentage of budgets in low-income households.
Nashvillian Dick Williams leads a No on 3 group called Citizens for Fiscal Sanity. He has been quoted in the Commercial Appeal and other Tennessee newspapers as saying,
“This is not a referendum on whether or not to have an income tax or a payroll tax, but it is a question on whether we should enshrine in the constitution a limitation on future decisions that voters may feel the need to decide. It may be an emergency or something.
“We believe that passing this amendment will inevitably lead to either higher sales taxes or higher business taxes, and on the local level, higher property taxes. If things got serious and this amendment got enshrined, possibly a statewide property tax could be considered. We think it’s clear that like everything else, governmental costs will rise, and they won’t be offset by economic growth alone.”
Amendment Three opponents also warn that increases in local and state sales taxes will drive consumers to neighboring states. Tennessee already has the highest combined state-local tax rate in the U.S.
Back in River City’s Take on Amendment Three
Your vote on this issue depends on how you feel about two issues:
1) Do you believe that taxes matter to businesses and professional service providers when making relocation and expansion decisions? If yes, vote Yes. If no, vote No.
2) Do you believe that balancing the state budget each year should require legislators to make tough choices, including shrinking discretionary expenses, eliminating waste, and shutting down popular but ineffective programs? If yes, vote Yes. Or do you believe that government growth is inevitable, and that raising the tax burden on all wage earners is a fair means of financing new programs, subsidies, and “rainy days”? If yes, vote No.
Opponents of Amendment Three, like opponents of Amendment One, seem to be relying on scare tactics to persuade voters their way. They warn of the bad things that might happen in a world where legislators make unreasonable demands on a cowering people who can’t fight back. In reality, we live in a representative democracy. Tax protestors in 2002 are just one example when constituents told their legislators and governor exactly how they felt – and the elected officials had to listen.
Like most Americans (and Tennesseans), we recognize that decades of Big Government and Big Spending by both political parties have stunted small business growth, shrunk the middle class, and created a permanent underclass who will forever be denied the American Dream. Complacent voters are as responsible for this mess as politicians who live to spend other people’s money and enact public policy that is based neither on evidence nor even common sense. The only way forward is to hold our elected officials at all levels of government strictly accountable for their policies and spending. This requires us to be better informed and more engaged; and to make personal sacrifices for the long-term well being of our families, our communities, our state, and our country.
We are voting Yes on Three.
Official Ballot Text
“ Shall Article II, Section 28 of the Constitution of Tennessee be amended by adding the following sentence at the end of the final substantive paragraph within the section:
Notwithstanding the authority to tax privileges or any other authority set forth in this Constitution, the Legislature shall not levy, authorize or otherwise permit any state or local tax upon payroll or earned personal income or any state or local tax measured by payroll or earned personal income; however, nothing contained herein shall be construed as prohibiting any tax in effect on January 1, 2011, or adjustment of the rate of such tax.”
This is the third in a series of articles about key races and issues in the November 4, 2014 election. Back in River City is covering the four constitutional amendments, Memphis municipal ordinance #5512, and three key races. Early voting has already begun, and continues until October 30. A sample ballot can be found here.
Of the four Tennessee Senate races on the ballot, the incumbents in Senatorial Districts 31 (Republican Brian Kelsey) and 33 (Democrat Reginald Tate) are uncontested.
The candidates for Tennessee Senate Districts 29 and 30 are starkly different in their backgrounds, experience, political ideology, stated platforms, and abilities to elevate Memphis’ standing in the Tennessee General Assembly.
Tennessee Senatorial District 29
For the first time in nearly 40 years, come January, a member of the Ford political dynasty will no longer represent Memphis in Senate District 29. In 2005, John Ford resigned from the seat he held for 31 years, facing indictment on federal bribery charges in the FBI sting Operation Tennessee Waltz. John Ford’s younger sister, Ophelia Ford, ran to fill the seat, winning by a suspect 13 votes over Republican Terry Roland. When numerous voting improprieties were found (implicating poll workers but not Ms. Ford), the Tennessee Senate voided the election. Ms. Ford filed federal suit and was awarded the seat. According to Wikipedia, her term of office was characterized by “outrageous opinions.” In 2007, she was accused of drunken assault by a Nashville cab driver.
District 29 includes portions of both North and South Memphis, including Republican-dominated Millington and Democrat-dominated Whitehaven; parts of Frayser, Uptown, Mud Island, and parts of Downtown. In the last legislative session, District 29 was one of only seven seats filled by Democrats in the 33-district Tennessee Senate.
Lee Harris is a Memphis City Councilman and FedEx professor at the University of Memphis School of Law. Councilman Harris easily defeated Ms. Ford and two other challengers in August’s Democrat Party primary, winning 42% of the vote to Ricky Dixon’s 28% and Ms Ford’s 27%. Herman Sawyer was a non-player with two percent of the votes. (Total vote count was 24,766.)
Councilman Harris is a native Memphian and product of Memphis City Schools. After graduating from Overton High School, he attended Morehouse College on full scholarship, graduating in 2000. After earning his law degree from Yale in 2003, he became an associate at the highly respected Memphis law firm Baker, Donelson, Bearman, Caldwell & Berkowitz. That same year, he began teaching at Cecil C. Humphreys School of Law at the University of Memphis, where he was granted tenure in 2009. He currently holds the endowed FedEx Professorship of Law.
Councilman Harris was elected to the Memphis City Council in 2011. As Councilman, Lee Harris has concentrated his efforts on improving parks, neighborhoods, and public safety. According to his campaign website, Councilman Harris was a “leader in the fight” for the 2012 city ordinance protecting workers from discrimination based on sexual orientation and gender identity. He currently chairs the Council’s budget committee.
Councilman Harris’ honors and awards include being named 2013 Public Official of the Year Award by the Association of Social Workers, West Tennessee and Man of Excellence by the Tri-State Defender. He was awarded the Victorian Village Historic Preservation Award in 2012, and was one of three Tennessee elected officials named by the NewDEAL national network as a New Deal Leader and pro-growth progressive. He is endorsed by several current and former leaders of the Shelby Co. Democratic Party, Memphis City Council colleagues Myron Lowery, Jim Strickland, and Harold Collins; Communications Workers of America; and Roby Williams, president of the Black Business Association of Memphis.
Councilman Harris has been actively engaged in community and civic organizations including the Frayser Exchange Club, Urban Arts Commission and the Goodwill Homes Community Services Agency. His wife, Alena Allen, is an associate law professor at the University of Memphis. The couple have two young children.
Unlike his opponent Jim Finney, Councilman Harris does not state his platform or key issues on his campaign website. In a rather astonishing error (or overstatement of confidence), Councilman Harris’ Wikipedia page states, “In 2014 he was elected to the Tennessee Senate replacing Ophelia Ford.”
Longtime Memphian James R. “Jim” Finney is Councilman Harris’ Republican challenger. Mr. Finney trounced Anthony D. Herron, Jr. in the August 2014 Republican Primary with 82% of the vote (3,793 cast).
Mr. Finney is a retired Naval Chief Petty Officer, entrepreneur and small business owner. A native of Massachusetts, he spent 24 years in active service to the U.S. Navy. He was stationed in Millington when he retired from Naval duty in 1979. Mr. Finney holds business degrees from State Technical Institute (now Southwest Tennessee Community College) and the University of Memphis. Prior to founding Metro Legal Process, Inc. in 1995, Mr. Finney was an associate real estate broker and investor in Shelby County and surrounding areas.
A graduate of the Memphis Police Department’s Citizens’ Police Academy, Mr. Finney is also a Goodwill Police Ambassador with the South Precinct. He is rated 86% by the National Rifle Association Political Victory Fund. His professional memberships include the National Federation of Independent Business, Memphis Bar Association (ADR section), and both the Tennessee and National Associations of Professional Process Servers. He is President of St. Vincent DePaul IC Conference, an organization dedicated to serving the poor and suffering through one-on-one assistance; a 4th Degree Knights of Columbus; and a member of Immaculate Conception Church. His wife, Virginia Miles Finney, is a native Memphian. They have eight children, eight grandchildren, and three great grandchildren.
- Will advocate for a retirement home for veterans of West Tennessee
- Will hold quarterly Town Hall meetings
- Will advocate to bring Industry to Shelby County
- Will advocate for improved educational opportunities
- Will be all-inclusive to the people of District 29
Senate District 30
District 30 was held by Jim Kyle from 1983 until August 2014, when he won the race for Chancellor for Chancery Part 2 of Tennessee’s 30th Judicial District. Two years of his term remained when he decided to run for judicial office. Judge Kyle did not resign from his senatorial office until his election to Chancery Court, preventing prospective candidates from filing for the office and following standard election procedures. State law required Shelby County’s Republican and Democrat Parties to each select a nominee to be placed on the November 4th ballot.
Shelby Co. Democratics chose Judge Kyle’s popular and politically astute wife Sara Kyle to run for the remainder of his term. The Republican Party nominated familiar candidate Dr. George Flinn, who was defeated by Sen. Lamar Alexander in Tennessee’s August 2014 Republican primary race for U.S. Senate.
District 30 is a classic case of gerrymandering. It includes parts of Frayser, Raleigh, Evergreen-Vollentine, part of Cooper-Young (Cooper is dividing line between Districts 29 and 30), a bit of Downtown (along Danny Thomas), and a long finger reaching into a sliver of East Memphis past 240 to include Jim and Sara Kyle’s home in Kirby Woods. See Map
Attorney Sara Kyle was nominated for the Tennessee Regulatory Authority (TRA) by legendary Democratic political leader and Speaker of the Tennessee House of Representatives Jimmy Naifeh in 1996. She continued to serve until March, 2013, a year before her third six-year term would expire. Mrs. Kyle resigned in protest of cost-cutting actions by Gov. Haslam and the Tennessee General Assembly that replaced TRA’s full-time, four-member board with a panel of five part-time members and an executive director. Prior to her TRA service, Mrs. Kyle was a public defender and was elected Memphis City Court Judge in 1991, serving three years before she resigned to become a candidate for the TRA (then called the Public Service Commission).
Mrs. Kyle was born in upper East Tennessee. She obtained her undergraduate degree from Austin Peay State University and was an elementary school teacher before earning a law degree from Nashville School of Law. She is a member of one of Tennessee’s most famous political families, the niece of former Governor Frank Clement and former state senator Annabelle Clement O’Brien.
In accepting the nomination of the Shelby Co. Democrat Party, Mrs. Kyle outlined a simple campaign platform. “The very first thing I want to do is beat the Republican,” she said, followed by “jobs, jobs, jobs.”
Native Memphian George Flinn, M.D. is a well known radiologist and media mogul who has demonstrated persistence and passion to serve his city and state in the political arena, often against long odds and using his own funds. Dr. Flinn ran unsuccessfully for mayor of Memphis in 2002 in a field of 25 candidates. He was elected to the Shelby County Board of Commissioners in 2004 and served until 2010, when he attempted to unseat Eighth District Congressman Steve Fincher. Two years later he ran against Rep. Steve Cohen in the Ninth Congressional District. Earlier this year, Dr. Flinn ran for U.S. Senate against Sen. Lamar Alexander, losing to Sen. Alexander in August’s Republican Primary. The following month, he was named to represent Shelby County Republicans in the Tennessee Senate race for District 30.
Dr. Flinn was born in Memphis and attended both Central and East High Schools. He earned his undergraduate degree in electrical engineering at the University of Mississippi and a medical degree in radiology at the University of Tennessee. He received a presidential appointment to serve at the U.S. Public Health Service. In his early days as an electrical engineer, Dr. Flinn did research on x-rays emitted from the cathode ray tubes in television sets. That interest expanded to the medical application of radio waves and radiology and his pursuit of a medical degree in radiology. Dr. Flinn participated in the development of color ultrasound imaging, and currently holds several patents related to ultrasound technology. Upon returning to Memphis, Dr. Flinn opened several outpatient radiology clinics and pioneered the use of teleradiology in the area. He later invested in broadcast media. Flinn Broadcasting Corporation currently holds more than 40 radio and television stations.
Dr. Flinn’s Congressional campaign in 2012 focused on jobs, controlling government spending, and “common sense” healthcare solutions. He made his “patient-centered” health care plan, an alternative to Obamacare, the focal point of his U.S. Senate race earlier this year. He also came out against Common Core.
Dr. Flinn’s values are as reliably traditional as Sara Kyle’s are progressive. The choice between the candidates would seem to be clear cut, depending on your own views. Regardless of your ideological bent or party affiliation, however, there is more to think about in this election.
Tennessee’s Senate has 33 members. At the end of the last legislative session, its makeup was 26 Republicans, six Democrats, and one vacancy. Eighteen Senate seats will be filled in this election. Of those, ten incumbents are unopposed (one Democrat and nine Republicans). Four Democrat incumbents chose not to run for reelection. If every Democrat running for Tennessee Senate won, the 33-seat chamber would comprise no more than 10 Democrats.
The Tennessee House is similarly dominated by Republicans. All 99 seats are up for reelection, with 44 Republicans and 15 Democrats unopposed. Ballotpedia ranks only 10 of the 59 challenged races as even mildly competitive. If all ten of those races were won by Democrats, the party would still lose two seats, for a 74-25 split.
What does this mean for Memphis? It means that, like it or not, the extended era (roughly 175 years) of Democratic rule in Tennessee politics is over for the foreseeable future. We are deeply entrenched in a cycle of conservatism, a backlash against the liberal policies that drove Tennessee to its lowest ranking for State Quality of Life (SQOL) in 2004 (40th of 50 states, according to Ballotpedia). Tennessee’s latest SQOL Ballotpedia ranking (2012, when Republicans held the governorship and the majority of both legislative chambers) was 21st among 50.
Memphis is in critical need of help from state government, and for some years has been considered by the majority of the Tennessee General Assembly as something between a wayward stepchild and a toxic waste dump. As long as Republicans hold the reins of power in Nashville, sending Democrat representatives to the TGA is arguably an exercise in futility, unless those Democrats have exceedingly strong bi-partisan ties and the ability to gain the ears of Lt. Gov. Ron Ramsey and Gov. Bill Haslam.
Politician Sara Kyle, Ms. “My-Top-Priority-Is-Beating-the-Republican-in-This-Race,” is unlikely to win influence and votes for Memphis on the Hill in Nashville. Lee Harris is well thought of as an up-and-comer in Memphis politics, but his brand of Democrat Party progressivism will not be equally effective in Nashville. Jim Finney and Dr. George Flinn are stalwart conservatives who have demonstrated their love for Memphis and its people. They can use the next four years to earn Memphis greater support among our state legislators, and exercise real influence in decisions affecting our city’s future.
We urge voters in Districts 29 and 30 to vote for the candidate who can do the best job for our city and the state. We believe those candidates are Jim Finney and Dr. George Flinn. Even if you are a Democrat or independent who normally leans left and votes for Democrats, consider whether that makes sense in the current environment.
This is the second in a series of posts about key races and issues on the November 4, 2014 ballot. Back in River City will cover the four amendments to the Tennessee constitution, three important races, and proposed Memphis ordinance #5512.
Amendment Two on the November 4th ballot (early voting begins today and runs through October 30) will change the way Tennesseans elect state Supreme Court and appellate justices. The new plan is a “Modified Federal Plan,” and is similar to the process used to elect federal judges. Under the new plan, the governor will appoint justices subject to confirmation by the Tennessee General Assembly (TGA). Legislators will have 60 days to confirm or reject the appointment. Justices appointed under this plan will continue to be subject to retention elections every eight years. In a retention election, all voters vote “yes” or “no” to keep a judge in office.
How Does Amendment Two Change the Current System?
Under the prior system known as the Tennessee Plan, the governor made appointments from a list generated by an appointed panel, typically dominated by attorneys and representatives of professional legal associations. Constituents voted sitting justices up or down in retention elections every eight years.
Why Is a Constitutional Amendment Needed?
For two reasons:
1. Tennessee’s constitution states:
The judges of the Supreme Court shall be elected by the qualified voters of the state.
In 1971, however, a “merit selection” (gubernatorial appointment) plan passed by the TGA ended contested elections for appellate and Supreme Court justices and replaced them with retention elections. In 1974, an infamous political deal (see Political History below) restored open elections for Tennessee Supreme Court (TSC) justices, but kept the merit system in place for state appellate judges. Twenty years later, the Tennessee Plan was enacted, which brought Supreme Court justices back under the merit system plan.
The Tennessee Plan has been challenged frequently as unconstitutional. Each time, a special TSC has been appointed to hear the issue. Each time, the Court has ruled that the system of gubernatorial appointment + retention referenda every eight years is legally equivalent to contested elections. To end these challenges, the TGA believes the Tennessee Constitution must be amended to enshrine a merit system into law.
2. The appointed body (Judicial Nominating Commission) invested with the authority to present judicial nominees to the Governor no longer exists. It expired on July 1, 2013 due to Tennessee’s sunset law. Since that time, Gov. Bill Haslam has used a judicial commission he set up by executive order to vet and recommend potential appointees.
Amendment Two will allow the people of Tennessee to decide if they want to continue with a merit system of judicial election.
For 117 years prior to 1971, any qualified attorney in Tennessee could (conceivably) run for an appellate judgeship, including a place on the TSC. Every eligible voter had a voice in how state laws were upheld and interpreted. In the 1970’s, however, progressives in numerous state legislatures, including Tennessee, voted in merit-based plans, variations of the Missouri Plan.
According to Wikipedia, 16 states currently appoint and retain/reject state supreme court justices under a Missouri-type plan. Ten states use a plan similar to the Modified Federal Plan that Amendment Two proposes. South Carolina’s and Virginia’s legislatures elect their state supreme court justices. Twenty-two states openly elect supreme court justices (such elections are partisan in seven states, non-partisan in 15).
Arguments for Amendment Two (Merit Plan Selection)
Proponents of merit plans (including Missouri-type plans and federal-type plans like that proposed in Amendment Two) argue that contested elections inject politics into the courtroom. Elections require campaigns. Campaigns cost money. Raising money can lead to big donations by special interest groups. Corruption and undue influence, therefore, (the argument goes) is inevitable.
Advocates believe that under merit plans, judges are appointed due to their professional merits, not their political connections. Nominations are made by non-partisan panels primarily composed of legal professionals who are more capable than lay citizens to evaluate the qualifications of individual judicial candidates.
In a joint op-ed in the Tennessean, former Gov. Phil Bredesen and former U.S. Senator Fred Thompson said that individual voters would have sufficient input under the new plan by voting for the governor, who will make the TSC appointments; by voting for our state senators and representatives, who will confirm or reject the appointments; and by voting to retain or replace the justices in elections held every eight years.
Yes on Two supporters also believe that the proposed new modified federal system is a better and more democratic system than the one it replaces. There is no provision in the Amendment for a judicial nominating body to present names to the governor. Such politically appointed panels have been criticized in the past for being dominated by trial attorneys and other special interests. How, then, would nominees be identified? The governor alone would have the power to decide. He could make an independent choice, or he could (as he has done in the past 16 months) create a new nominating body (and decide who sits on it) by executive order.
Arguments Against Amendment Two (Open Elections)
“ The real truth behind Amendment 2 is the belief that the Governor is able to pick better judges than the public. This is nothing less than an argument against self-government, and a slap in the face of the Governor’s own supporters. If the people are qualified to elect the Governor, why aren’t the voters who supported him equally qualified to elect the Supreme Court, and other appellate courts? The answer is, ‘Of course, they are.’
We believe a court system of elected judges is a better court system than appointed judges. One has only to look at the conflict, confusion, and lack of accountability to the public that is clearly evident in the Federal court system where all judges are appointed. We believe most Tennesseans agree that our system of electing judges is far superior to the way they do things in Washington. So, our message is simple: Don’t give up the right to vote. Protect the Constitution. Vote No on 2!”
Elbert Walton, a former Missouri State legislator and lawyer who is also an African American, has argued that his state’s merit plan of judicial selection limits opportunities for blacks to attain high level judgeships.
“It is unfair that lawyers elect judges . . . It disenfranchises people and it especially disenfranchises black people.”
The Wall Street Journal wrote in 2007,
“If the recent slugfests have proven anything, it’s that Missouri’s courts are every bit as hung up in politics as they are in other states. The difference is that in Missouri the process happens behind closed doors.”
Vanderbilt law professor Brian T. Fitzpatrick wrote in the Missouri Law Review,
“ . . . I am skeptical that merit selection removes politics from judicial selection. Rather, merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar.”
The restoration of open, contested elections in Tennessee would hold judges accountable to the people by causing them to face opponents every eight years. Prior to July 2014, sitting appellate and TSC judges were evaluated by an appointed Judicial Performance Evaluation Commission. In recent years, this body was required to release judicial performance evaluations to newspapers across Tennessee. The problem with this system of “accountability” was that sitting judges never received a negative review. If a judge’s performance was poor, he or she was told privately and allowed to “retire” before the evaluation was released. In the history of the merit system in Tennessee, only one judge has ever been removed in a retention election.
In contested elections, judges’ voting records are more fully examined. Their judicial philosophies are debated. In today’s deeply divided society, judges’ beliefs regarding the interpretation of law matters a great deal. Some judges hold to a originalist interpretation of laws and constitutions (that is, what “reasonable persons” at the time of adoption believed they meant). Others view a federal or state constitution as a “living document” that can change with the times.
Judicial philosophies affect our daily lives. They shape the culture of our state. They can extend or limit our liberties. A notable example of applying “living document” judicial philosophy is the 2000 Tennessee Supreme Court decision in Planned Parenthood v. Sundquist. In that case, the TSC “found” the same right to privacy (including abortion) that the U.S. Supreme Court found in Roe v. Wade in 1973. As a result (which Back in River City noted in our recent post on Amendment One), Tennessee’s abortion restrictions were struck down. Unless Amendment One is passed, our legislature cannot impose even the most basic, common sense regulations on abortion procedures.
Only when sitting and prospective candidates are forced to participate in contested elections do voters have the opportunity to select judges according to their performance, qualifications, adherence to legal precedents, and legal philosophy. In elections, judges are held accountable for their performance. Bad judges and those who rule in ways inconsistent with the views and values of the people’s majority can be replaced.
Who Should Hold the Power?
There is widespread, bipartisan support for passage of Amendment Two, including many bar associations, legal firms, chambers of commerce, major news media, and Memphis Mayor AC Wharton. (Ballotpedia reports of the top five contributors to the Yes on Two campaign, four are major Tennessee law firms.)
Whichever system you believe ensures a better judiciary, however, don’t fall for the fiction that either one takes politics out of the mix. Politics has always been the mother’s milk of judicial selection in Tennessee, and always will be. The principal argument is whether the power to choose comes from the political party in power or the majority of those who care enough to vote. Even then, if one party dominates statewide politics, decisions behind closed doors can determine whose name appears on the ballot. The only way to ensure that the people’s choices reign supreme in supreme court races is if an open nomination process is implemented along with an open election process.
In a piece appearing in the Knoxville News Sentinel, former State Attorney General Paul Summers (who also served as a judge on the Criminal Court of Appeals) pulled back Oz’s curtain.
“Back when we had partisan elections for the judges of the appellate courts, they were in theory elected by hundreds of thousands of Tennesseans. In truth, they were selected by a handful of party officials in Nashville in January every eight years.”
In other words, the Democratic Party’s State Executive Committee in Nashville decided which candidates’ names would appear on statewide ballots. General Summers recalled the 1990 elections, when all five Supreme Court justices were up for re-election. Two of them stepped aside, according to Politifact, “reportedly after failing to gather enough political support among party activists on the Democrat Executive Committee.” The Committee’s slate of five candidates were the only ones appearing on the ballot.
In an interview with Politifact, General Summers cited a 1977 speech by Court of Appeals Judge C. S. Carney to the Tennessee Constitutional Convention. Judge Carney reportedly claimed,
“there had been no exceptions to the rule of the Democratic Executive Committee picking Supreme Court justices since 1910.”
What Happens if Amendment Two Fails?
Any of the four amendments could fail if it does not receive enough Yes votes, or if it does not receive enough TOTAL votes. Confused? Stay with me.
Passage of the four constitutional amendments on the November 4 ballot is tied to the number of people who vote in the gubernatorial election. To pass, an amendment must receive Yes votes equal to 50 percent of the total number of people who in the governor’s race, plus one more vote.
500,000 total people vote in the governor’s race (who they vote for is irrelevant in this calculation). For any amendment to pass, it must receive 250,001 YES votes (50% plus one).
So, if 200,000 people vote Yes on Amendment Two and 25,000 people vote No, the amendment fails, because the amendment received fewer than the necessary 250.001 votes.
Okay, so if Amendment Two should fail, how will appellate and TSC judges be seated? The answer is:
Certainly, the Tennessee General Assembly and Gov. Haslam would receive a strong political message. The TGA would have to decide how to act on the voice of the people (although, if the amendment were to fail from insufficient votes cast, that voice might not be considered very loud). Subject to the opinion of newly appointed Attorney General Herbert Slatery, TGA could allow the current merit system to stand, or it might need to draft new legislation. The existing problem of operating a judicial election system vulnerable to repeated constitutional challenges would remain (John Jay Hooker would love this).
Republican legislators do not believe that the political will exists within the TGA to re-instate public election of appellate and TSC justices. If voters were to trounce Amendment Two in high numbers, things would get very interesting in the next legislative session.
How Is Back in River City Voting?
Eddie Settles of Back in River City has been speaking against Amendment Two before civic and political groups. In September, he debated Sen. Brian Kelsey (sponsor of Amendment Two in the Tennessee Senate) before the Cordova Republicans Club. Eddie is a staunch Republican, but on this issue he stands against the mainstream of party leaders. He says,
“Amendment Two is not a partisan issue, but a populist issue. It’s about preserving our voting rights. It’s about rethinking the whole matter of who should serve as judges on our highest courts, and who should decide on whether a judicial candidate is qualified. Those who oppose open elections for judges are basically saying that the people aren’t smart enough to make those decisions. If we had open elections and an open nomination process, we could be assured of being able to vet the candidates and make sitting judges accountable.
When Back in River City published a detailed voting guide for the August (2014) judicial elections, thousands of Shelby County voters thanked us for providing information they could not find elsewhere. We took that as proof that people care about judicial elections. They want specific information on candidates in order to make sound voting decisions. Until we have open elections, the major Tennessee news outlets will have no incentive to provide such information and hold judges accountable.”
As for me, I will admit that Eddie changed my mind on this issue. I realized that merit selection is one of those “progressive” ideas that sound good on paper, but is thwarted in the real world by politics and power grabs. We can make the system better only if we demand a process that allows the people to vet, vote on, and hold judges accountable. The corollary is to engage and inform all eligible voters so that they aren’t intimidated by their responsibilities nor swayed by self-serving political ads and special interests’ propaganda.
We’re voting No on Two. We hope you will, too.
JUDICIAL SELECTION in TENNESSEE: A POLITICAL HISTORY
The following timeline highlights the political machinations in Tennessee’s judicial selection process over the years.
- In 1854, a constitutional amendment was passed by the Tennessee General Assembly (TGA) changing the method of judicial selection from legislative appointment to popular election. Tennessee judges were elected for the next 117 years. Any qualifying attorney could (and did) run for any judgeship, including membership on the Tennessee Supreme Court. (During Reconstruction, the Governor appointed judges under federal oversight.)
- In 1971, the first Republican governor in Tennessee for 61 years – Winfield Dunn – was elected. That same year, the TGA passed a modified version of the Missouri Plan, which determined that judges would be selected by a “merit” process. In this plan, all appellate judges and Supreme Court justices would be appointed by the Governor from a list vetted and and presented by an Appellate Court Nominating Commission. Judges would be subject to “retention elections” after each eight-year term. In a retention election (or referendum), voters cast a Yes vote to retain the judge. A No vote required the Governor to replace the judge. Other states had been adopting similar plans, held by progressives to be a better path to an “independent” (non-partisan) judiciary than popular elections. (Note: Governor Dunn has since stated that he regrets signing the merit plan into law.)
- With a Republican governor in office, the state political machinery (run by Democrats since Reconstruction) was nervous about losing control. Gov. Dunn would have the opportunity to appoint five new (potentially all Republican) justices to the Supreme Court in 1974. (Appointments occur when a judgeship is vacated anytime during an eight-year judicial term.) An all-out political war erupted between the two parties.
- In 1973, the Tennessee’s modified Missouri Plan met its first constitutional challenge. The Democrat-appointed Supreme Court ruled it constitutional, despite there never being a constitutional amendment permitting a change from mandated popular elections.
- In 1974, in a then-notorious deal made between Gov. Dunn and (Democrat) House Speaker Ned McWherter, popular election of Supreme Court justices was restored by TGA legislation. Only appellate judges were subject to retention elections.
- For 20 years after Gov. Dunn’s term ended in 1974, the de facto nominating commission became the State Democratic Executive Committee. (Technically, both parties’ Executive Committees could have submitted lists of nominees. The Republican Party’s Executive Committee seldom bothered, however, since the statewide voting base of Republicans was so small that their nominees never made it beyond the pipe dream stage.)
- Tennessee’s last constitutional convention was held in 1977. Tennessee voters approved 12 of 13 amendments on the ballot. Voters rejected an amendment that would legitimize in the State Constitution the merit system of judicial selection.
- In 1994, the TGA voted in the Tennessee Plan. The Tennessee Plan reinstated the merit system for appellate and Supreme Court positions. Candidates for these slots would be offered for gubernatorial appointment by an appointed nominating commission. Judges would be subject to eight-year retention elections by popular referendum.
The new plan provided for an appointed Judicial Performance Evaluation Commission. The commission was required to conduct objective reviews of each judge and to publish their findings for the benefit of voters. If the Commission did not recommend a judge’s reappointment, that judge was subject to a contested retention referendum with additional names on the ballot.
- Under the 1994 version of a “non-partisan judiciary” plan, the State (Party) Executive Committees would no longer serve as the nominating bodies. The newly designed, 20-member Judicial Selection Commission, however, was dominated by attorneys with special (typically progressive/liberal) interests, including three members each from the Tennessee-based associations representing trial lawyers, criminal defense lawyers, district attorneys, and three from the Tennessee Bar Association. Five members were attorneys uninvolved with Criminal Defense or Personal Injury practices, and three members were non-attorneys.
- In the 20 years the Tennessee Plan has been in place, no judges have received recommendations for replacement. As pointed out in a 2014 Knoxnews.com article,
If the commission recommends against a judge, he or she must face a full-fledged contested election, in theory. In reality, there has never been a contested election in the two decades the system has been in place. When the commission decides against recommending a judge stay in office, the judge simply retires and the negative evaluation never sees the light of day.
- Only one, Supreme Court Justice Penny White, has been removed (1996). Justice White had been highly rated by the Commission, but voters objected to her stance in a high profile capital murder case, which led to the overturning of a death sentence.
- Two more lawsuits challenging the constitutionality of the Tennessee Plan (specifically, the retention referendums) were filed in 1997-1998. A specially appointed Tennessee Supreme Court upheld the plan in both cases.
- In 2009, a slightly altered judicial evaluation commission was incarnated by the TGA to reduce the perception (or reality) of liberal bias. A nine-member Judicial Performance Evaluation Commission was appointed by a newly created Judicial Council, the Lt. Governor and the Speaker of the House. (The Judicial Council was primarily composed of sitting judges representing Tennessee courts of all levels.) The new Commission was required to publish a final report for the benefit of voters prior to retention referenda. The report, however,
“shall not include any individual record or evaluation, but may include, for each appellate judge, the individual final scores for the survey results”
- the effect being, that voters would not have any meaningful information about the individual judges’ actual performance, including their work ethic, objectivity and fair-mindedness, communication skills, character – all of those criteria that legal organizations including the Tennessee Bar Association say we should use to select judges. In other words, the voters are allowed to know only what their carefully, politically appointed peers say about them.
- 2012: Legendary Democratic politician and three-time Tennessee gubernatorial candidate John Jay Hooker filed his seventh lawsuit calling the Tennessee Plan unconstitutional.
- Gov. Haslam, a supporter of the Tennessee Plan, appointed a Special Supreme Court to hear the case on appeal from a lower court. The Special Court upheld the Tennessee Plan. (A Nooga.com article noted that two of the Court’s five members had conflicts of interest.)
- Also in 2012, the two bodies necessary to execute the Tennessee Plan (Judicial Selection Commission and Judicial Performance Evaluation Commission) were set to expire on June 30. The legislature extended the Commissions’ terms for one year (June 30, 2013), forcing the constitutional issue to be resolved by referendum.
- 2014: Amendment 2 is placed on the ballot for the November 2 elections.
Sources: Commercial Appeal, Eagle Forum, and others.
This is the first in a series of posts on Shelby County’s November 4, 2014 election. Back in River City will cover the four proposed amendments to Tennessee’s constitution and several key races on the ballot. Voting on constitutional amendments is often tricky, because people who frame arguments for and against such measures are tricky themselves. Some political strategists figure, if voters are sufficiently confused by the arguments presented, they will likely vote “No” to keep the status quo rather than take a chance on passing something they don’t understand.
The debate on Amendment One is a good example of this theory at work. Here is the Amendment as it appears on the ballot:
Proposed Constitutional Amendment No. 1
for the November 4, 2014 General Election Ballot
Shall Article I, of the Constitution of Tennessee be amended by adding the following language as a new, appropriately designated section: Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
Tennesseans for the Preservation of Personal Privacy (TPPP), a political advocacy group opposing the amendment, kicked off their statewide campaign in May 2014 by publishing an ad headed Vote No on the Tennessee Taliban Amendment. The ad included the above cartoon along with arguments equating Tennessee legislators with the Taliban “who control women.” The Chattanooga Times-Free Press and Knoxville Sentinel ran the full ad. The Commercial Appeal and Nashville’s Tennessean ran the ad without the accompanying cartoon.
The Vote Yes on One organization has a very different take on the impact of adding Amendment One to Tennessee’s constitution.
What an endearing picture! Who could be the against the protection of sweet, curly-headed children? No wonder some voters are confused.
Let’s ignore the attempts at passionate persuasion and boil the issue down to the basic facts.
The central argument posed against Amendment One by TPPP is that women have the right to “run their own lives,” which includes making their own decisions about abortion. Their ad warns,
“the ultimate intent is so the Tennessee legislature can control reproductive decisions for all women, including birth control, in vitro fertilization (IVF) and legal abortion.”
Wait a minute. Roe v. Wade, anyone? Planned Parenthood v. Sundquist?
Would Amendment One really take away the right to legal abortion in Tennessee?
Absolutely not. Nothing in Amendment One changes access to abortion in Tennessee. Current law stays in place.
But, doesn’t the law limit the right to abortion in “circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother”?
No. What the amendment says is that, in the future, elected state representatives and elected state senators could choose to pass legislation regarding abortion, just as they can choose to pass legislation on any other issue before them.
If Amendment One doesn’t change the current law, why do we need it?
Because in 2000, Planned Parenthood Association of Tennessee v. Don Sundquist, Governor of Tennessee found a “fundamental right to privacy” (which includes the right to abortion) in the Tennessee Constitution that is broader than federal law. The Court struck down as unconstitutional several Tennessee statutes placing limits on abortion and protecting abortion patients. These included Tennessee residency requirements, a requirement that abortion patients be informed by a physician that abortion is in many cases a major surgical procedure, a two day waiting period, and a requirement that second trimester abortions be performed in a licensed hospital. Medical emergency exemptions to informed consent and waiting period laws (in cases where the life of the mother was in jeopardy) were also ruled unconstitutional. Currently, Tennessee cannot regulate, inspect, or license facilities that perform abortions – and unless Amendment One passes, we cannot have even basic restrictions like these to protect women who face abortions.
In addition, the Court applied the “strict scrutiny” standard to any future laws regarding abortion passed by the Tennessee General Assembly. This is the most stringent standard applied to judicial review throughout all U.S. Courts. Under strict scrutiny, any Tennessee law restricting access to abortion in any way can be ruled unconstitutional unless the State can prove that the law is justified by a “compelling state interest and is narrowly tailored to meet that interest.” Strict scrutiny effectively eliminates any new Tennessee laws limiting abortion, because they would not be able to meet the strict scrutiny standard. It also makes the few protective laws still on the books (including parental consent before a minor can have an abortion procedure and a TennCare budget provision limiting funds for abortion except in the case of rape, incest, or to protect the life of the mother) essentially void because of their vulnerability to legal challenge.
As a result of Planned Parenthood v. Sundquist, Tennessee – a state where the majority of citizens are Pro-Life – became an abortion destination. We are one of only 16 states with a fundamental right to abortion, and are the only state in the southeast without waiting period or informed consent laws. In 2011, the latest year for which statistics are available, 23% of abortions in Tennessee were performed on women from other states. We now rank third among the 50 states in performing abortions on women from other states.
The Commercial Appeal reports:
In Alabama, abortion rights advocates have set up an online crowd-sourcing campaign to raise funds to help women get to Nashville for an abortion. In northern Mississippi . . . the National Organization for Women refers women facing unwanted pregnancies to CHOICES, a Memphis abortion clinic. And in Kentucky, advocates have organized rides for women to clinics in Nashville and Bristol in East Tennessee. At least one Tennessee clinic, The Women’s Center in Nashville, advertises $25 discounts for out-of-state clients.
Amendment One restores the right of Tennessee citizens to have common sense laws that protect the unborn as well as women who elect to have abortions. Period. Nothing will change unless and until Tennesseans want their legislators (and governor) to pass new laws.
No matter what the mainstream media, left-leaning political groups, Democratic politicians and sexually liberated college co-eds say to confuse the facts, abortion-on-demand advocates are not in the majority in Tennessee. When they portray the Tennessee General Assembly as a group of tyrannical, female-bashing men committed to stripping away women’s reproductive rights, they are ignoring a few fundamental facts.
- Roe v. Wade is federal law and cannot be undermined or countermanded by state law.
- 17% of Tennessee legislators in 2013 were women, including the Speaker of the House.
- The people of Tennessee freely elect legislators to represent their interests and values and hold them accountable for their votes. Legislators either vote the will of the people or they are voted out.
- Notwithstanding a Democratic Party majority in Shelby County, Tennessee is now a solidly red (Republican) state where the majority of voters desire common sense restrictions on abortion and statutes providing protection for both the unborn and women who seek legal abortions.
Look closely at the language used in No on One scripts. They predict a future that is inconsistent with reality. If Amendment One is passed, abortion will remain legal . The Tennessee General Assembly will still function democratically. Proposed laws regarding abortion at any time in the future will be hotly debated by people on both sides of the issue, by legislators and the people who elected them.
Sometimes unpopular laws do get passed. When that happens, voters organize lobbying efforts and get them appealed or revised in another legislative session.
Political advocates and lobbying organizations who use scare tactics and misrepresentations count on voters who don’t know the facts. Never, ever make a voting decision based on political ads or one news source alone. We live in a world where many people (especially politicians, regrettably) believe that the end justifies the means. And so they lie to get people to support their position.
Always know the facts.
If we stick to the facts, your decision on Amendment One should be clear. If you want Tennessee to remain an abortion-on-demand state, with no ability to enact restrictions or patient protections of any kind, vote No. If you want to restore our state representatives’ rights to pass abortion-related legislation that reflects the will of the voting majority, vote Yes.