Attorneys for the state of Tennessee had argued in a Nashville federal court that third-party candidates in Tennessee should be able to be listed under a heading including the names of their parties. And they lost in their defense of a state law permitting the listing.
So when they returned to the same courtroom in the U.S. District Court for the Middle District of Tennessee last week, before the same judge, their argument against a similar ballot heading for Memphian Jim Tomasik was that their previous case is still on appeal.
U.S. District Judge William J. Haynes ordered that Tomasik be listed in the special general election for Tennessee House District 91 under a Libertarian Party heading.
His ruling came Thursday, Oct. 31, the day before the Nov. 1 opening of early voting in the race for the Memphis district seat at Shelby County Election Commission offices at 157 Poplar Ave.
Friday was also the first day of early voting in the citywide referendum on a half-percent sales tax hike.
Tomasik filed his qualifying petition for the state House seat as a Libertarian but was listed as an independent by the Shelby County Election Commission, which was acting on instructions from state election officials.
Tomasik is chairman of the Tennessee Libertarian Party and filed suit in Nashville federal court against the local election commission and state election officials, seeking an injunction that would list him on the ballot under a Libertarian Party heading.
Tomasik faces Democratic primary winner Raumesh Akbari in the general election. No Republican candidates filed for the seat.
Tennessee Deputy Attorney General Janet M. Kleinfelter argued in the state’s response to the lawsuit that the law that would permit such a listing of candidates was declared unconstitutional in the same federal court for the Middle District of Tennessee.
The specific federal case involved party headings for the Green Party of Tennessee and the Constitution Party of Tennessee.
The state is appealing the earlier district court ruling to the U.S. Sixth Circuit Court of Appeals.
“Thus in order to preserve their objections and not compromise their position on appeal, the state defendants cannot agree to the declaratory and injunctive relief requested,” Kleinfelter wrote in the response filed the day before the hearing before Haynes.
She also said the state’s position is that the state election coordinator cannot order the local election commission to put Tomasik on the ballot as a Libertarian because it is not among the duties and powers of the coordinator’s position as set out in Tennessee law.
“While the state election coordinator is given the statutory authority to order county election commissions to keep persons off the ballot under certain circumstances, no corresponding authority to order county election commissions to place persons on the ballot is given to the State Election Coordinator,” she wrote.
Early voting in advance of the Nov. 21 election day expands to satellite early voting sites across Memphis starting Nov. 12.