Tennessee House Subcommittee Shows Representative Government Is on the Ropes
Mar 11, 2021 by David Fowler
On Tuesday, House Resolution 23 by Representative Tim Rudd, cosponsored by 60 other members of the 99 member House of Representatives, died. The Resolution would have established a committee of House members to fully examine the absentee ballot decision made by Chancellor Lyle last June, which affected voting in the August primary. The Committee would then decide whether to recommend to the House that she be removed from office “for cause.” (A similar resolution has been filed in the Senate, Senate Resolution 21.)
The House Resolution died over Representative Rudd’s request to postpone a vote on the Resolution to a later meeting when his expert witness (me) could attend (a medical emergency in the family). However, the Committee decided to hear opposing expert witnesses who were present, which is not an issue, but then one of the members called for a vote on the Resolution, which is not debatable, and it was killed.
I’ll explain what happened, but you may want to watch this video explanation instead and share it with your friends on social media. But do not miss the “action step” at the end of the commentary.
Chancellor Lyle’s First Wrong
The controversy surrounds a decision by Chancellor Lyle last June. She decided that the legislatively enacted exceptions to in-person voting found in the absentee ballot statutes did not allow people to vote absentee if they were afraid they might get COVID by voting in person.
The first thing Chancellor Lyle did wrong was add to the law a new exception to voting in person, a new excuse to vote absentee.
Thankfully, the Tennessee Supreme Court reversed her on this point, correctly stating, “[W]e are constrained by the Constitution’s delegation to the Legislature of the power to regulate the conduct of our elections, which certainly includes within its scope the interest in fiscal responsibility and efficient conduct of the elections.”
In other words, courts cannot change the law, amend the law, or write a new law. But the state Supreme Court slapped her down on this. Standing alone, this may not be reason to pursue the Resolution.
Chancellor Lyle’s Second and Most Egregious Wrong
But what the Tennessee Supreme Court, the state’s attorney general, nor the members of the subcommittee who voted to kill the Resolution seemed to care about was that courts only have jurisdiction to award relief for a wrong to the plaintiffs who prove they have been wrong.
So, when Chancellor Lyle de facto amended the law (her first wrong), she compounded that wrong by applying the “new law” not just to the plaintiffs but to every registered voter in the state as though they, too, were entitled to that relief!
Were you a party to the lawsuit? No. Neither was I.
When a judge thinks he or she can make law, that is bad enough. But when he or she thinks she can make law for the whole body of citizens, that is most definitely a power and function given only to the legislature and given to it because its members are specifically intended to represent those who elect them in making law for the whole body of citizens. That cannot be said of any judge, period!
Every voter in the state was not under Chancellor Lyle’s jurisdiction, and thus, no judicial remedy could, as a matter of constitutional law, be fashioned that would apply to non-plaintiffs, to people who were not under the jurisdiction of the Court.
Legislative Acquiescence to A Subversion of the Political System
Those who framed and ratified our federal and state constitutions clearly envisioned that the legislative branch would be the most powerful branch. They also clearly understood the judicial branch to be the least powerful because it could not exercise “will” over the whole body of citizens as the legislature can, nor could it exercise “force” over the whole people to uphold those laws, as the executive branch can.
When the strongest branch of government abdicates the power the people gave it to the weakest branch of government, you have the greatest failure of our form of government to function properly.
And yet, that abdication—even just to form a committee to examine the matter in greater detail and make a recommendation—took place on Tuesday.
What Can Be Done?
The 64 House members co-sponsoring the Resolution can bring the measure straight to the House vote if they are joined by two other members of the House.
In addition, a member of the subcommittee who voted to kill the Resolution could make a motion next week to have it reconsidered. If that motion is seconded and approved, then the Resolution can be reset on the calendar and experts can come testify in support of it and their testimony counterpoised to that of those who testified against it this week.
I think the latter is the best route, but unless House Speaker Cameron Sexton hears from you that you think the “other side” should be allowed to speak to this matter, he may not inquire into whether the subcommittee’s actions were consistent with their duties under the Constitution.
Restoring the Republic begins with you. Here is the Speaker’s office number: 615-741-2343. Call today.Ask that the subcommittee reconsider House Resolution 23.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.