The Davidson County Election Commission punted Friday on whether to put a controversial anti-tax proposal on the ballot, instead asking Davidson County Chancery Court to determine the referendum’s legality.

The election commission decision represented at least a temporary legal victory for Nashville Mayor John Cooper, whose administration views the possible Dec. 15 referendum as a distraction from its pandemic and economic recovery efforts.

As first reported by The Tennessean, Cooper is rallying the city’s political establishment, many of whom didn’t back him in last year’s election, to take on the referendum should it come to that. But, Nashville’s charter experts don’t seem to think it will. The legal consensus around the courthouse is that the multi-pronged anti-tax measure won’t pass constitutional muster and will fail before voters ever have the chance to weigh in.

Backed by money from Koch family-funded Americans for Prosperity, conservative attorney Jim Roberts organized a petition drive over the summer. Roberts said he collected around 27,000 signatures, well more than the approximately 12,000 he needed.

Jim Roberts (Photo: Facebook)
Jim Roberts (Photo: Facebook)

His proposal would unwind the 34 percent property tax increase passed by Metro Council in June. The referendum also proposes to limit future tax increases to 2 percent unless voters approve higher increases at special elections. Cooper’s administration and Metro Council members say this part of the proposal is at odds with the Tennessee constitution, which gives local governments broad taxing authority. They also say that even putting the measure on the ballot would plunge Metro into tremendous financial turmoil and put draconian mid-year budget cuts on the table.

The election commission unanimously agreed that another component of the referendum, which would require voter approval of bond issuances more than $15 million, is also legally flawed. In response, some commissioners sought to cut that part of the referendum from the ballot even though Roberts argued earlier that the election commission did not have the power to eliminate any one part of the referendum.

The referendum language is flawed because it doesn’t propose to amend any specific section of the charter, doesn’t define certain legal action it seeks to take and doesn’t clarify the parts of the charter that it would be in conflict with should it pass. Metro Councilman Bob Mendes, who was the chief proponent of the June tax increase, said the referendum language read like a “Facebook rant” instead of a complicated legal proposal.

Up next is a legal battle royale that technically pits the election commission against the Cooper administration and Metro. The election commission has hired former Tennessee Supreme Court Justice Bill Koch for legal representation. Roberts will represent the 4GoodGovernment group that pushed the referendum.

The legal battle puts added pressure on Metro Legal Director Bob Cooper, not related to the mayor. The mayor’s appointment of Bob Cooper, who as the former state Attorney General is no stranger to highly complicated and intensely scrutinized legal battles, was one of the most praised by courthouse insiders last year.If successful, the referendum would take place on Dec. 15 instead of Dec. 5 as the proponents proposed.