Hooker: Don’t count amendment votes of those who skip governor’s race

By Erik Schelzig, Associated Press
NASHVILLE, Tenn. — As if Tennessee’s lengthy process for amending the state constitution weren’t complicated enough, independent gubernatorial candidate John Jay Hooker is now raising concerns that the method for counting the votes does not pass constitutional muster.

The longstanding interpretation of the state constitution has been that in order to be ratified, proposed amendments must receive a majority of the number of votes cast in the governor’s race.

But Hooker, who is one of the leading opponent of efforts to write the state’s plan for merit selection of appeals judges into the Tennessee Constitution, argued in a letter to Republican Gov. Bill Haslam on Tuesday that only voters who cast actual ballots in the governor’s race should be able to have their votes counted on the amendments.

According to language of the Tennessee Constitution, voters must “approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor.”

The secretary of state’s office is unpersuaded by Hooker’s argument, said spokesman Blake Fontenay.

“Whether people vote in the governor’s race doesn’t affect their eligibility to vote on the amendments,” he said.

Hooker’s letter follows the creation of an online campaign urging Tennessee voters to skip over the governor’s election as a way to help pass another proposed constitutional amendment that would give lawmakers more power to regulate abortion in the state.

The website explains that fewer votes for governor mean fewer votes will be necessary to pass the amendment. Groups supporting the abortion amendment have disavowed any knowledge of the website promoting the voting scheme.

Hooker is also demanding the resignation of Chief Justice Sharon Lee for sending a letter to lawyers around the state urging support of the merit selection amendment. He argued in a legal filing with the high court that Lee violated rules banning judges from using their office to further personal “economic interest.”

Hooker’s filing was made on behalf of himself and clients Walt Brumit, Tony Gottlieb and Holly Spann.

The court this week refused to take up Hooker’s filing on the basis that his motion does not relate to any pending litigation, said courts spokeswoman Michele Wojciechowski.

“Justice Lee stands by her comments in regard to Amendment 2,” Wojciechowski added.

The judicial amendment is one of four proposed changes to the Tennessee Constitution going before voters on Nov. 4.

Under the current system, the governor makes appointments to fill vacancies on the state’s top courts. Voters then decide whether to keep or replace them in uncontested retention elections. The proposed amendment would add a provision to give the Legislature the power to reject the governor’s nominees.

Hooker and other opponents of the current system argue the retention elections violate a provision in the Tennessee Constitution that says the Supreme Court justices “shall be elected by the qualified voters of the state,” and dismiss various legal rulings supporting the current system as tainted because they were made by jurists who have a stake in the current system.

Here’s the text of Hooker’s letter to Haslam:

October 28, 2014

Governor Bill Haslam
State of Tennessee
Nashville, TN 37219

Dear Governor:

I am writing you a san independent candidate for Governor and asking you under your oath, “to take care that the laws are faithfully executed” to join with me in a court action seeking a Declaratory Judgment as to the meaning of the language in Article XI Section 3 relating to voting For or Against a Constitutional amendment.

The language to which I refer:

And if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.

As a lawyer I am convinced that in order to qualify to vote for or against an amendment the voter must Vote in the Governor’s race under the plain language of the provision. If a voter does not vote in the Governor’s race, in my reading, after talking to several competent high level lawyers, such voters are not permitted to vote For or Against the amendment. Consequently, in your capacity as Governor you have a duty to address this matter before the election.

I say this in the context of the fact that you have said that you sponsor Amendment #2, so as to bring clarity to the Retention‐Election issue. Consequently, it would appear to me that if you have any doubt that I am right in the reading of the Constitution that you join with me to go to the Courts seeking a Declaratory Judgment or in the alternative that you advise the people otherwise, so that we can enter into a public debate about the matter.

Respectfully,

John Jay Hooker