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VOL. 125 | NO. 221 | Friday, November 12, 2010

Motion to Dismiss Election Count Suit Filed

By Bill Dries

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Attorneys for the Tennessee attorney general, the Tennessee secretary of state and the Shelby County Election Commission have followed through on their earlier pledge to seek dismissal of the federal lawsuit challenging the way votes were counted in the Nov. 2 consolidation referendum.

Deputy Attorney General Janet M. Kleinfelter on Wednesday filed the motion for dismissal with U.S. District Court Judge Thomas Anderson.

A proposed metro charter was crushed in vote totals for Shelby County outside the city of Memphis. And the same charter won by a narrow margin in the separate vote total within the city of Memphis.

The charter had to pass in each referendum, under state law, in order to consolidate the city of Memphis and Shelby County governments.

The lawsuit filed by eight citizens seeks to have the “dual majorities” requirement declared unconstitutional and replaced with a requirement that a consolidation charter pass in a single countywide “collective” yes/no vote.

Anderson granted a preliminary injunction agreed to by all parties that stops the Election Commission from certifying the referendum results until the case is decided.

Kleinfelter argued that even with a countywide vote total, the charter has been rejected.

Unofficial vote totals combining the results inside Memphis and outside Memphis but within the county show 81,574 voted for the charter while 142,721 voted against the charter.

“The consolidation referendum was overwhelmingly rejected by the voters of Shelby County, even with the votes being counted collectively,” she wrote. ”Thus, in light of the results … no actual controversy existed between the parties after that date and plaintiffs no longer had a legal cognizable interest in this case, i.e. no personal stake.”

The filing cites Article 3 of the U.S. Constitution, which says federal courts can only decide live controversies.

“An actual controversy must exist at all stages of review, not merely at the time the complaint is filed,” Kleinfelter wrote. “If events occur during the pendency of a litigation which render the court unable to grant the requested relief, the case becomes moot and thus falls outside the federal court’s jurisdiction.”

An exception to the “mootness doctrine” can be made, she continued, if “there was a reasonable expectation that the same complaining party would be subjected to the same action again.”

The court case was filed while the early voting period in advance of the Nov. 2 election day was under way. The late filing came despite speculation while the charter was still being drafted that there could be such a legal challenge.

In the closing days of the campaign, some charter proponents conceded it probably would be rejected by voters and said they would return soon with another consolidation proposal if it did.

Kleinfelter said the odds of getting the Memphis City Council and Shelby County Commission to again agree to form a Metro Charter Commission are long.

“The record is completely devoid of any proof that there is a reasonable expectation that plaintiffs will be subjected to this same action again,” she said, referring to the formation of a charter commission. She also notes that the Nov. 2 referendum was the first in 39 years on consolidation in Shelby County.

Should Anderson disagree on the issue of mootness, Kleinfelter argued the case should still be dismissed because federal courts are limited in the changes they can make in state laws involving local political subdivisions.

“Such a drastic reordering of Tennessee law organizing local political subdivisions is far beyond the province of the federal courts and flies directly in the face of well recognized principles of federalism,” she said.

The plaintiffs will respond to this week’s filing before Anderson rules.

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