(UPDATED) State AG Finds Local Democratic Party Private Act Unconstitutional

November 21, 2013
by: 
Dwayne Page
State Attorney General Robert E. Cooper Jr.

A sixty four year old private act governing the manner in which members of the DeKalb County Democratic Party's Executive Committee are selected has been deemed unconstitutional by the Tennessee Attorney General.

AG Robert E. Cooper, Jr. issued a written opinion Tuesday at the request of State Representative David A. Shepard of Nashville on behalf of local party leaders who wanted an opinion as to the "enforceability" of the Act as originally adopted in 1949 and amended in 1972 by the Tennessee General Assembly.

Cooper's opinion basically finds that the legislature can't constitutionally place burdensome restrictions on political parties in how they may organize.

(CLICK LINK BELOW TO READ ACTUAL ATTORNEY GENERAL OPINION)

http://www.tn.gov/attorneygeneral/op/2013/op13-090.pdf

In his opinion, the attorney general wrote that "the statute constitutionally burdens the associated rights of the Tennessee Democratic Party and its members in DeKalb County and therefore is unenforceable".

The DeKalb County Democratic Executive Committee was established under Private Acts of 1949, Chapter 771 and was subsequently amended in 1972. The Act calls for forty members to be elected from nineteen different precincts according to the population at those times. Several of the old precincts in the statute no longer exist and attempts by local party leaders to determine the old boundaries proved unsuccessful. It has been several years since anyone ran for the executive committee in DeKalb County on the primary election ballot, something the Private Act requires every two years, and the Act does not provide for reapportionment in redrawing the precincts.

Instead of electing members to the executive committee, as the Private Act calls for, the party sought an answer as to whether members could be appointed under the Tennessee Democratic Party Rules. Without a compelling state interest, Cooper's opinion basically finds that the party may determine for itself how to organize, a right protected by the U.S. Constitution.

In seeking the AG opinion on the enforceability of the Act, local party leaders posed the question as to whether the DeKalb County Democratic Party could cease following provisions of the seemingly antiquated private act, which remains the law for DeKalb County, and hold a reorganization convention pursuant to Tennessee Democratic Party rules, organizing every two years under the general statutory law for the purpose of conducting business

Local party leaders, through State Representative Shepard, requested an expeditious opinion from the Attorney General on October 21. The AG opinion was issued Tuesday, November 19

Not knowing when the AG opinion would come down and facing a November 22 deadline in calling a Primary for May 6, 2014, party leaders held a reorganization convention last Saturday, November 16 at the courthouse . The local party organized under Tennessee Democratic Party rules and selected members to the newly organized DeKalb County Democratic Executive Committee, naming one person from each of the seven districts in the county to serve. But in an effort to ensure that the party leadership was legally constituted in the event the AG were to uphold the Private Act in his opinion, another vote was taken to follow rules provided for under the act, calling on the last known duly elected members of the executive committee in attendance to caucus and appoint others at the convention to fill vacancies on the committee. After the appointments were made, the committee then voted to name the same seven members chosen earlier in the meeting under state party rules to become the official DeKalb County Democratic Executive Committee for the next two years. Those members include Judy Slager, Frank Buck, Faye Fuqua, David McDowell, James Hale, Flint Gilley, and Tommy Webb.

In his opinion, Attorney General Cooper wrote that "A political party's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the United States Constitution". He cited a California case in which the U.S. Supreme Court found unconstitutional several California statutes restricting the organization and composition of political party committees. The high court ruled that the restrictions limited a political party's discretion in how to organize itself, conduct its affairs, and select its leaders and that because these were constitutionally protected associational rights, the state of California's restrictions could only be upheld if they served a compelling state interest. In that case, the court ruled California had not shown a compelling interest.

Under the DeKalb County Act, the State Attorney General opined that "the General Assembly directed that the DeKalb County Democratic Executive Committee have forty members elected in the Democratic Primary from a list of precincts, some of which apparently no longer exist. Members must be elected to two-year terms. The Act thus sets the size of a single county executive party committee, the method by which its members must be elected, and the terms they must serve. The Act clearly imposes restrictions limiting the Tennessee Democratic Party's discretion in how to organize itself, conduct its own affairs, and select its leaders in DeKalb County. This Office is unable to identify any compelling State interest "necessary to the integrity of the electoral process" that these restrictions serve. For this reason, the Act unconstitutionally burdens the associational rights of the Tennessee Democratic Party and its members in DeKalb County and is unenforceable," wrote AG Cooper.

The State Attorney General's opinion does not change a law already on the books, therefore legislation may be filed seeking to abolish the private act for DeKalb County once the General Assembly convenes early next year.

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