Thursday, November 17, 2011

Tennessee: Chattanooga recall law causing big trouble in mayoral recalls

Chattanooga's proposed mayoral recall has taken some bizarre turns, one that is guaranteed to go to the courts. Two weeks ago, an appellate court ruled that the Hamilton County Election Commission should have been able to certify the recall petitions against Mayor Ron Littlefield, though there may be some serious defects in the petitions (no dates on a large number of signatures).

The commission then had to deal with a separate question -- which law was applicable for signature gathering totals. Tennessee state law states that petitioners need to gather 15% of the total number of registered voters (14,854). Chattanooga's city charter states that petitioners need 50% of the turnout from the last election (8,957). 

The commission, providing another textbook example of Professor Hasen's argument for nonpartisan election commision, voted on party lines (3-2 Republican -- this is not to say that the victors were wrong, just that having a nonpartisan board would have avoided the cries of partisanship), not to wait for the appeal to play out, They also voted to accept city charter lower limit, thereby qualifying the recall for the ballot (the argument against adopting the city charter limit is simply that the city adopted the recall in 1990, before the state law. According to this argument, the city would have had to re-pass its law to be in compliance). 

However, the election won't be held till August 2012 (the next general municipal or county election). The mayor's term is up in May 2013.

However, here's the strange part. 

According to the site (which generally has had great coverage of the recall), Chattanooga's recall law may force the mayor before a recall occurs -- force him out now. I don't quite see the logic or how they come to this conclusion from the text of the charter (pasted below are what they say are the two contradictory provisions).  I just heard from the editor at Nooga, who notes that the arguments of whether the mayor should be forced out now before the recall vote is being discussed by the city council and election commission officials, and they are likely to hire an independent counsel and seek a declaratory judgment.

From what I gather, it seems to hinge on the word recall. I've had problems with the word "recall" before. It has a confusing double meaning -- it refers to when the person is actual brought up for the vote, but it can also mean when the person is removed (the official is recalled). It's too complicated to say recall and removed or recall and sustained. 

That being said, I would be very surprised if the mayor is removed based on the interpretation that just getting on the ballot can lead to his removal. It may be unprecedented.

From Title 3, Chapter II, Section 3.18:
In any such removal election the candidate receiving the highest number of votes shall be declared elected. At such election, if some other person than the incumbent receives the highest number of votes, the incumbent shall therefrom be deemed removed from office upon qualification of his successors.
From Title 8, Chapter II, Section 8.30:
In the case of the mayor’s death, resignation, inability to serve for any reason, recall or removal of his or her residence from the city, upon such fact being certified by resolution of the council, the chairperson of the council shall become the interim mayor upon being administered the oath and making bond. Such person shall hold the office of the mayor on an interim basis until a new mayor is elected as provided in this Charter and qualified. The interim mayor shall have the authority to cast a vote to break a tie in the city council.

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