A Tennessee plaintiff in the 2020 lawsuit to expand absentee voting during the COVID-19 pandemic says legislation to remove Chancellor Ellen Hobbs Lyle is part of an effort to quell voting rights.
Meanwhile, House Democrats contend the move is an unconstitutional effort to remove a sitting judge because Republicans disagree with her rulings. They say she could be removed only by three reasons set forth in the Constitution: impeachment for crimes, unfitness for office and misbehavior in office.
Earle Fisher, leader of #UptheVote901 and pastor of Abyssinian Baptist Church in Memphis, contends legislation designed to punish Lyle for allowing expanded mail-in absentee balloting last year appears to be an “attempt to chastise” the chancellor for giving more ballot access to underprivileged people.
“This seems to be consistent with what seems to be not only a statewide initiative but a national initiative. If you couple this with the bill to cut out early voting, you see this as another extension or another arm on the octopus of voter suppression,” Fisher says.
State Sen. Janice Bowling has filed legislation to eliminate early voting, saying it leads to fraud, though she cites no evidence. The bill appears to have little support.
Lyle, though, a 25-year judge in Davidson County, is on the chopping block for ruling against the state as voting rights advocates tried to expand absentee balloting during the pandemic.
The resolution has set off a firestorm of opposition. Lyle, who is immensely respected in business circles, was appointed by the Supreme Court to oversee the state’s business court and received accolades for her work. She was appointed to the bench by former Republican Gov. Don Sundquist.
State Rep. Tim Rudd, a Murfreesboro Republican who filed the legislation, claims Lyle broke her oath of office and tried to “subvert” state law by allowing “mass” mail-in balloting.
“She went against state law, and she had no legal right to do that, and that’s what the Supreme Court overturned,” says Rudd, who sponsored legislation designed to stop large voter registration drives in 2019 at the request of the Secretary of State’s Office. A federal judge placed an injunction on the law shortly after it took effect, and the Legislature passed a watered-down version of the bill in 2020.
Rudd contends Lyle also “threatened state employees with being incarcerated if they didn’t break state law and follow her directions.”
Sixty-six members of the House Republican Caucus signed on to Rudd’s House resolution as co-sponsors, including House Speaker Cameron Sexton and Majority Leader William Lamberth, a Portland attorney, and Rep. Mike Carter, a former General Sessions Court judge from Hamilton County. A similar resolution has not been filed yet in the Senate.
Lyle did say she would hold the state in contempt of court if it didn’t follow her instructions for notifying voters how to register to cast absentee ballots during the pandemic. State Elections Coordinator Mark Goins, hoping for a stay of her initial ruling, told county election officials to hold up on Lyle’s order.
The state contended the Secretary of State’s Office put together a strong plan to protect voters and poll workers during the pandemic and that allowing all voters to cast mail-in ballots would be expensive and hurt the integrity of the vote.
Ultimately, though, the state changed its argument just before the Tennessee Supreme Court heard the case, allowing people with underlying health problems, as well as their caregivers, to cast absentee ballots. The Supreme Court disagreed with part of Lyle’s ruling to allow all voters to cast absentee ballots out of fear of catching the virus.
Memphis attorney Jake Brown, who represented plaintiffs in the lawsuit, calls the resolution to remove Lyle “ridiculous.” The resolution would set up a 10-member committee of legislators to consider ousting Lyle, enabling her to be removed with a two-thirds vote of the General Assembly.
“Chancellor Lyle is an imminently qualified jurist. She did not rule for us on everything in the case. I think it was a very balanced decision, and, frankly, I would call on the attorneys for the state of Tennessee to speak up in her defense and say that she did not do anything unethical in this case,” Brown says.
He points out Lyle ruled against the state on one aspect of the lawsuit and notes the state adopted part of her opinion when “it changed its own position on the eve or oral argument” before the Supreme Court.
Brown argues it is not unethical for a judge to rule according to their conscience and the law. He questions whether it is ethical for members of the Legislature who are attorneys to cast “aspersions” on a jurist “without cause.”
Regardless of whether the resolution has traction, it has already made an impact. Lyle recused herself Monday from the lawsuit Metro Nashville Public Schools filed against the state to reform the Basic Education Program. The case was to be heard in October.
The Attorney General’s Office is declining to comment on the matter.
House Democrats contend the Tennessee Supreme Court ruled years ago a judge can’t be removed because “[she] has declared unconstitutional a particular enactment of the legislature.”
They call Rudd’s resolution an act of blackmail.
Democratic Caucus Chairman Vincent Dixie of Nashville is criticizing the legislation, saying, “You either rule in our favor or we will remove you.”
They point out a majority of states and those surrounding Tennessee expanded voting by mail when the pandemic struck, yet by May 2020, Tennessee declined to follow.
Democrats argue Lyle was “fair, even handed and transparent,” ruling in favor of the state to send the case quickly to the Supreme Court before the August primary. In addition, Lyle ruled in favor of the state and granted a motion to dismiss the case on summary judgment without further action.
Nevertheless, House Republicans appear ready to plow ahead with the resolution.
If Congress had (removed judges) over the last 50 to 60 years with judges who do some things that are probably questionable, I imagine our country would probably be in a little less debt right now and probably in a better place. – Rep. Jeremy Faison, R-Cosby, House Republican Caucus Chairman
House Republican Caucus Chairman Jeremy Faison called the situation a “perfect example of checks and balances” as foreseen by the nation’s founding fathers. He notes it is “interesting” that people within the legal community are “worked up” about the resolution.
“It seems to be nobody’s ever worked up when the judiciary overturns one of our laws. They say this is just common practice and they call it checks and balances, and it doesn’t seem to get anybody worked up,” Faison says.
The resolution doesn’t expel Lyle but forms a committee to investigate her courtroom actions, he says.
“If Congress had done this over the last 50 to 60 years with judges who do some things that are probably questionable, I imagine our country would probably be in a little less debt right now and probably in a better place,” he adds.
Faison contends the measure places no “chilling effect” on the judicial system, adding if justices stay “within the confines” of the ruling and avoid “legislating from the bench,” their actions wouldn’t be scrutinized.
He acknowledges, however, the chancellor’s ruling, which was based on the fear of COVID-19 in the midst of the pandemic, bears some study by a legislative committee.
On Tuesday, the Tennessee Bar Association issued a lengthy statement opposing the GOP action, saying the GOP move could threaten the constitutional separation of powers and pointing out the Board of Judicial Conduct and state appeals courts already serve as checks on judges. A short time after the TBA issued its statement, the Nashville Bar Association issued a similar, strongly worded condemnation of the action.