Thread by @IsErinThere

🚨METRO COUNCIL LAWSUIT THREAD🧵

So I completely missed who the woman representing Metro in this hearing is, but she's now getting into the Home Rule Amendment, which Metro previously relied upon to block school vouchers - which ultimately failed.

AH! It's Melissa Roberge.
Anyway, Roberge pointing out the issue is really Subsection B, which is "local in form or effect."
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Roberge: State says statute contains "transitional provisions" but that's not what they are.
"It can't change the rules in conflict with the Constitution," she says of legislature.
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Now going through existing law, which caps county legislative bodies at 25 - that law also says metro govts are exempt from that cap.
Argues metro can't set a cap at all under that provision.
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If Court agrees no such cap can be set, then it need not address severability (means the whole thing is null and void, essentially), Roberge says.
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@WKRN Purpose was not to set a cap on legislatures, it was to immediately shrink the size of Metro Council in rushed, chaotic way, Roberge says.
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Metro wants the Court to enjoin (stop) the law in full.

Also, CORRECTION: The Attorney speaking for Metro Is ALLISON BUSSELL (she's logged on using Roberge's Zoom account, whoops)

Metro Law Director Wally Dietz now speaking.
"We are here today because the Metro Council Reduction Act is an assault on the very core of the metropolitan government itself."
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"Egregious legislative overreach," is how Dietz classifies this act.
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@WKRN "We have established that this legislative act is fatally flawed based on several provisions of the Tennessee Constitution," Dietz says.
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@WKRN Dietz now going through previous referendum to reduce size of Metro Council that was rejected, cites concerns of African American representation.
Then in 1962 the 40-member council was established; opened in 1963 with 5 AfAm members.
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Letters from Latin American business leaders in support of Metro's suit, Dietz says. Concerns about diversity in representation on Council; filed with moving papers, per Dietz.
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@WKRN "We should be the ones who decide how big this Council is." - Dietz
Now going back over electoral deadlines: barely 3 months away from early voting.
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@WKRN Dietz: After 2020 Census, Metro Planning spent months taking input on redistrict maps, then adopted new maps 15 months ago for this current Metro Council race. As of Jan 15 financials, candidates had $500K+ in funds on hand.
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@WKRN Dietz: "No one has a clue today what council district they will be in for this election."
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Dietz: Federal Courts have said a quick plan is not necessarily a good plan, and that's true today.

It is simply too late. It's not fair to voters, candidates.

Election integrity "dangerously at risk."

"This is why we have rules for this."
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@WKRN Dietz: [The act] is disrespectful to voters, candidates, election process.
Asking Court to focus on irreparable harm imposed onto Nashville residents, which they've proved in their arguments
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Now moving onto individual plaintiffs pursuing same claims as Metro, represented by Scott Tift.
Repping 8 voters, candidates and officials: faith and community leaders, former Metro Councilmember, current Councilors, etc.
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Tift: "Fundamentally, we have voters bringing this"
State only challenging Metro's standing on its claim that the term-extension provision.
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Tift: These are voters who have a right to ratify a gross reach down of the legislature into local gov't.

Going to walk through how voters have a right to challenge state's decision to extend Metro Councilors' terms
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@WKRN Tift with my favorite distinction: what "shall" means in legal statute!

Refresher: "shall" is mandatory language. You have to do it. Not an option.

Tift says Metro charter says councilors "shall serve four years" so state can't override.
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Correction: TN Constitution says metro terms are four years.

Tift: What can be more harmful than an unconstitutional govt existing for a year or longer?

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Tift concluded. Now the state is up.

Timothy Simons representing defendants.

State challenging standing of plaintiffs on constitutional claims.

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Simons: There are 3 metros in TN - Lynchburg/Moore County and Hartsville/Trousdale County in addition to Nashville/Davidson County

(Neither the other two metros have more than 20 members already)

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Simons: Deadline for reduced council size is May 1, or if it can't be done by then, all terms extended by one year until 2024 to effectuate redistricting requirement - the transitional provisions
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Simons now going through plaintiff's complaints.
Says act is fully constitutional and no grounds for granting temporary injunction.
Now addressing elements of injunction claim.
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Simonds: state believes no likelihood of success on merits re: constitutional claims.

"There's a strong legal presumption that enactments of TN Legislature are constitutional."

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Simonds now tackling "home rule amendment" claim by Metro et al.
Previous court case says even if an act only affects one local govt when it was passed, if it could potentially apply to other locals, it would not run afoul of HRA.
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Simonds: Reiterating that this act would apply to all future metro governments, which indicates this would not be "of local form or effect."

Now tackling plaintiff's argument on Sec. 1B, which they say is specifically targeted to Nashville.

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That's not the legal standard that's used, he says.

Metro tried to argue that cases state cited only work for constitutional change not state laws.

Simonds says those cases contain much broader language.

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Simonds: Act is not a "ripper bill" because if Metro can comply with regular election calendar, there are no special elections; additionally, if they have to use "transitional" provision with extension would eventually get back on regular election cycle.
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Simonds: it doesn't affect incumbents. We don't think this constitutes a ripper bill. It doesn't shorten any incumbents' term.

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@WKRN Simonds: one-year extension not before the Court yet because it hasn't happened yet. Not an issue that should be addressed yet; only when it's truly been triggered.
Points out Metro has already been taking steps to present new maps, so they may actually meet deadline.

Simonds: State's position on Metro's exemption to constitutional cap of 25 is legislature has authority to enact caps legislatively. Nothing that prevents general assembly from doing that.

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@WKRN Simonds: This concept of the cap...doesn't in any way mean the General Assembly may not enact its own cap legislatively.
Now discussing Sec. 1B's severability claim from Metro: would not in any way prevent rest of statute from remaining in effect
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Simonds: the act contains a severability clause already so Metro's claim has no merit.
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Simonds: all harm arguments based on presumption of unconstitutional, but legislative acts are presumed constitutional, so granting injunction would disrupt enforcement of act
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@WKRN Simonds: an injunction to stop Sec. 1A and 1B would effectively nullify the act.

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Simonds: Nullification by injunction should not be granted.
Injunction would also constitute legal harm by the court.
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Simonds: It's not a voting rights case, it's about whether the legislature has the authority to institute caps on local govts.

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Simonds yields to Jonathan Shirley with TN AG's office. Addressing only standing of Metro and individual plaintiffs.
Says individuals all lack standing because they can't show distinct or palpable injury, causal connection between injury and conduct, or favorable decision.

Shirley: "Chaos" claims are all conjectural in nature and don't just apply to them as plaintiffs but all Nashville voters, and that's not something they can use for standing.

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Shirley: No indication that any voter will be denied that right based on act.

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Shirley: generalized grievance shared by voters
(interesting phase to me)

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Shirley: No denial of opportunity to run for office regardless of if act is enjoined or not.
All alleged injuries are common to all voters, candidates and incumbents, so by the "generalized grievance shared by a large class" prevails.
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Shirley done. Now onto rebuttals.
Allison Bussell saying Shirley's claims that the number of districts on May 18 depends on Metro amounts to nothing more than "it's Metro's fault" if they don't comply.
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Bussell: Notion of Metro doesn't have to change salaries is "Absurd" since remaining councilors would have to do more work
Councilors having to make decisions based on the unconstitutional law.
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Bussell countering Simonds' argument about how it applies to all metro govts - he knows--everybody knows--this only applies to metro nashville
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Bussell: Section 2 of act which applies to cities has no enforcement mechanism like language directing Metro planning. Why include it if it doesn't apply statewide? Because it only applies to Metro.
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Bussell: "go forth and comply" only applies to cities, but Metro has additional burdens with 30-day deadline.

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"They should be able to do that just because they want to." - Bussell on legislature's motives.

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Bussell: These decisions have to be made now. No extension built into qualifying deadline in state law. We need to know what the districts will be now.
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Bussell: State should not be permitted to pick and choose when they protect election integrity.
State asking you to determine that there is nothing to see here.
Even when they concede they comply with constitution.
Asking this court to protect democracy.
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Q from Chancellor Pat Moskal: Is Metro aware of other case with transitional language that applies to metro/municipal governance rather than constitutional amendments?
Bussell: no. all about Home Rule Amendment. State hasn't ID'd any such case either.
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Q from Judge Mary Wagner: If Court finds Sec. B unconstitutional, wouldn't Metro still be in same position it's in now?
Bussell: Metro would have four years to deal with that problem, but would decrease ultimate harm to Metro.
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Tift rebuttal: Everyone is aware of what a radical position state takes by saying no one has standing on the 4-year term requirement. Would be asking Court to essentially nullify a portion of constitution.
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Tift: If gov't nor people have no standing, they're saying no one can challenge the rule and take courts out of the equation.
Constitution explicitly states "shall serve four years;" compares to language on Speaker which says "shall...or until a successor is appointed"

Tift: Individual plaintiffs allege this act will be prevented from voting in August if this election is pushed or from voting to ratify local laws.
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Q from Jerri Bryant: Is Tift's argument only against the possible 5-year term or also against possible subsequent 3-year term.
Tift says yes, it's against both. Both would be clear violation of constitutional provisions and electorate's ability to elect 4-year councilors.

*Excuse me: Chancellor Jerri Bryant*

Chancellor Pat Moskal concludes hearing saying panel will take arguments under advisement.

And that's all, folks!

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The Court will issue a ruling "as soon as we are able to," so no judgment today it looks like.