TN History Might Repeat Itself (sorta) in Judicial Elections

Thirty-five years ago, Tennessee voters went to the polls and approved 12 of 13 amendments to the state constitution that had been proposed by the Constitutional Convention of 1977.
Next year, Tennessee voters will go to the polls and, probably, approve two amendments to the state constitution presented them by the state Legislature.
Much more uncertain is whether the Legislature in 2013 will decide to present voters with an amendment revisiting the subject of the amendment rejected in March 1978 and, if so, what the voters will do about it. In the past and in the future, the subject was a restructuring of the way we select Tennessee’s top judges.
Interestingly, the two amendments that will be subject to statewide referendum in 2014 both relate to court decisions. So did some of the items approved 35 years ago. It seems a majority of we Tennesseans can agree about what to do in reaction to judges; not on what to do about selecting the judges themselves. Or at least the judges who Tennessee voters can directly impact.

Approved amendments in 1978, for example, included repeal of provisions in the 1870 state constitution that prohibited interracial marriage and provided for segregated schools, complying in both cases with U.S. Supreme Court rulings. Back in 1953, voters had approved a repeal of the state constitutional requirement for payment of a poll tax before voting.
Tennessee’s constitution, incidentally, went without any changes from 1870 until 1953, at which time it had survived unamended for longer than any other constitution in the nation, according to a scholarly 1998 article by Nashville attorney Lewis Laska published in the book “Tennessee Government and Politics.”
Constitutional conventions then became somewhat fashionable for a couple of decades. Legislators authorized them in 1953, 1959, 1965 and 1971 before the 1977 convention that was the longest — lasting from August into December — and the most controversial.
The big 1977 issue, ultimately approved by voters, was repeal of the 1870 constitution’s prohibition of interest rates higher than 10 percent. Financial institutions lobbied heavily to call the convention, lobbied the convention and then lobbied voters in a campaign for passage.
Since then, legislators have authorized only single-issue votes on constitutional amendments — never the creation of a constitutional convention that can draft its own proposals. And those single-issue amendments have been rare — though dozens were proposed just in the last two years, only to die in the Legislature.
Approved already for a 2014 vote is a measure that, in essence, will overturn a 2000 state Supreme Court decision striking down restrictions the Legislature wanted to impose on abortion. Virtually certain to be approved this year is an amendment to prohibit a state income tax, even though the Supreme Court has already held that a state income tax is unconstitutional. Both enjoy 100 percent support of the Legislature’s GOP majority.
Judicial selection is a different animal.
The 1977 proposal was quite comprehensive, rewriting multiple provisions of the Constitution’s judicial article. For the Supreme Court, it set up a plan similar to what exists today by a statute that some conservative legislators see as unconstitutional.
But it also provided for popular election of the state attorney general and gave the Legislature new powers over judges — including the right to cut their salaries — that were deemed by critics to threaten judicial independence. State Supreme Court Chief Justice Joe Henry and the Tennessee Bar Association led the campaign to defeat the amendment — and they succeeded.
This year’s judicial election proposal, given first-round approval last year, proposes to imitate the federal system of judges to some extent. They would be appointed by the governor and subject to approval by the Legislature, though the legislative approval could be ignored if lawmakers failed to act on a gubernatorial nomination within a proscribed time. After that, the judges could be re-elected — as now — through a referendum with voters simply deciding yes-no on a new term with no contested elections.
To reach the voters next year, the idea this year must receive a two-thirds majority in both the House and Senate. Lawyers and judges don’t really like it, but see it as better than other available options. Legislators are divided, but the necessary majority may go along.
If so, the muddled situation just might set the stage for history to repeat itself.

Note: This also appears in Sunday’s News Sentinel, HERE.

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