Judge: Democrats’ ef­fort to boot Smith can pro­ceed

Chattanooga Times Free Press - - OBITUARIES - BY ANDY SHER STAFF WRITER

NASHVILLE — A Nashville judge ruled Thurs­day that a law­suit seek­ing to kick Repub­li­can Robin Smith off the state House Dis­trict 26 GOP pri­mary bal­lot in Hamilton County may pro­ceed, at least for now.

But in a flurry of other pro­ce­dural rul­ings from the bench, David­son County Chan­cel­lor Clau­dia Bon­ny­man also adopted a tougher le­gal stan­dard of re­view in the Hamilton County case that could make it harder for Ten­nessee Democrats’ ef­fort to boot Smith from the Aug. 2 bal­lot.

If Democrats are suc­cess­ful, it would leave David Jones the only can­di­date and the au­to­matic win­ner on the Nov. 6 bal­lot.

Early vot­ing in the Repub­li­can and Demo­cratic pri­maries as well as other fed­eral, state and county con­tests be­gan Fri­day.

In other rul­ings, Bon­ny­man also de­cided the Ten­nessee Demo­cratic Party had le­gal stand­ing to file the law­suit. That was de­spite ques­tions raised by Nashville at­tor­ney Tim War­nack, who was hired by the Hamilton County Elec­tion Com­mis­sion to de­fend com­mis­sion­ers’ ap­proval of Smith to re­place state Rep. Ger­ald McCormick, R-Chat­tanooga, on the GOP pri­mary bal­lot.

And, Bon­ny­man said, Smith, a for­mer Ten­nessee Repub­li­can Party chair­man, won’t be dragged into the case, at least right now.

State Democrats filed suit against the Hamilton County Elec­tion Com­mis­sion on July 2 af­ter com­mis­sion­ers ear­lier that day agreed to let state Rep. Ger­ald McCormick, R-Chat­tanooga, quit the con­test af­ter the with­drawal dead­line.

Elec­tion com­mis­sion­ers then voted to let Smith, who had the req­ui­site num­ber of reg­is­tered vot­ers on a pe­ti­tion, re­place McCormick, a Chat­tanooga busi­ness­man and for­mer House ma­jor­ity leader, on the bal­lot.

McCormick had pub­licly stated in late June that he was with­draw­ing from the race. That was af­ter Democrats be­gan raising ques­tions about his le­gal res­i­dency in light of the 2017 pur­chase he and his wife made of a $487,000 Nashville home with a mort­gage that said it was his “prin­ci­pal” res­i­dence.

But McCormick, a for­mer House ma­jor­ity leader who was eye­ing a bid to be­come the GOP-dom­i­nated cham­ber’s next speaker, scoffed at the ac­cu­sa­tions. He noted his wife, Kim McCormick, is a top aide to Ten­nessee Board of Re­gents Chan­cel­lor Flora Ty­d­ings and she now lives full time in Nashville. He said he spends the ma­jor­ity of his time out­side the an­nual leg­is­la­tion ses­sion in Chat­tanooga.

Ten­nessee Elec­tion Co­or­di­na­tor Mark Goins, a Repub­li­can, in­ves­ti­gated and said that based on doc­u­ments, in­clud­ing McCormick’s per­sonal and busi­ness li­censes and lo­cal and fed­eral tax re­turns, McCormick was still a le­gal res­i­dent.

But less than a week later, McCormick an­nounced he was get­ting out of the race to take a job at the Nashville of­fice of a Chat­tanooga-based en­gi­neer­ing firm and would quit the Gen­eral As­sem­bly in October. He said his new em­ployer was re­quir­ing him to be in Nashville full time, meet­ing re­quire­ments in Ten­nessee law that al­low can­di­dates in such cir­cum­stances to drop out of a race, come off the bal­lot and be re­placed.

Dur­ing Fri­day’s hear­ing in Nashville, Chan­cel­lor Bon­ny­man cited a 2017 Ten­nessee Supreme Court de­ci­sion in an un­re­lated Roane County elec­tion case deal­ing with the lo­cal county elec­tion com­mis­sion’s han­dling of a res­i­dency is­sue. Jus­tices de­cided com­mis­sion­ers had the author­ity un­der Ten­nessee elec­tion statutes to act in a “quasi-ju­di­cial hear­ing.”

Democrats’ at­tor­ney, Ben Gas­tel of Nashville, ar­gued that Hamilton County Elec­tion com­mis­sion­ers were act­ing in a “min­is­te­rial” ca­pac­ity. Bon­ny­man’s rul­ing ef­fec­tively makes it harder for state Democrats to in­tro­duce ev­i­dence.

Gas­tel ar­gued un­suc­cess­fully that it was “very clear” Hamilton County com­mis­sion­ers had “no find­ings of fact,” later adding, it wasn’t a “quasi-ju­di­cial hear­ing. He noted they didn’t in­clude the June 12 let­ter from state Elec­tion Co­or­di­na­tor Goins in which he spoke to McCormick’s le­gal res­i­dency.

As a re­sult of the rul­ing, Bon­ny­man also di­rected that Gas­tel, who had planned to ques­tion McCormick’s new em­ployer on Fri­day and McCormick him­self on Mon­day un­der oath about be­ing re­quired to live full time in Nashville, sus­pend the de­po­si­tions un­til later at best.

And in an­other po­ten­tial blow, Bon­ny­man said she might later con­sider al­low­ing the case to be moved from her ju­ris­dic­tion to Hamilton County.

Robin Smith Ger­ald McCormick

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