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David Davis’ prospective challenge
Posted By jake
We’re getting a better idea of how Davis plans to (maybe) challenge his defeat in the primary at the hands of Phil Roe and, by his account, those sneaky Democrats.
In a release today, we see he plans an attempt to apply TCA 2-7-115. It reads:
(a) A voter may vote only in the precinct where the voter resides and is registered, but if a registered voter has, at any time prior to voting, changed residence to another place inside the county, the voter must vote pursuant to the provisions of § 2-7-140. If a registered voter has, within ninety (90) days before a state primary or general election or federal primary or general election, changed residence to another place inside Tennessee but outside the county where the voter is registered, the voter may vote in the polling place where the voter is registered. If the voter has, within ninety (90) days before an election, changed name by marriage or otherwise, the voter may vote in the polling place where the voter is registered or is entitled to vote under § 2-7-140.
(b) A registered voter is entitled to vote in a primary election for offices for which the voter is qualified to vote at the polling place where the voter is registered if:
(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or
(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.
[Acts 1972, ch. 740, § 1; 1974, ch. 801, § 1; T.C.A., § 2-715; Acts 1997, ch. 550, § 9; 2000, ch. 756, § 14.]
Seems like it gives Davis grounds to challenge the eligibility of those voters who aren’t so closely aligned with the GOP.
Yet there may be a hitch to this approach, as section 2-7-126 requires a challenge on the grounds of party membership to be handled under 2-7-123-125.
That fella 123 contains the language outline below, with some emphasis I think is gonna make a big impact in a potential challenge here:
If any person’s right to vote is challenged by any other person present at the polling place, the judges shall present the challenge to the person and decide the challenge after administering the following oath to the challenged voter: “I swear (affirm) that I will give true answers to questions asked about my right to vote in the election I have applied to vote in.” A person who refuses to take the oath may not vote.
[Acts 1972, ch. 740, § 1; T.C.A., § 2-723.]
Section 124 contains information on various challenges not related exclusively to party allegiance.
Section 125 contains the following language:
(a) If the judges determine unanimously that the person is not entitled to vote, the person shall vote by paper ballot and the person’s ballot shall be deposited in a sealed envelope marked “Rejected” with the person’s name, the reason for rejection, and the signatures of the judges written on it.
(b) If the judges do not agree unanimously to rejection, the person shall be permitted to vote as if unchallenged.
(c) In either case the challenge and outcome shall be noted on the back of the voter’s duplicate permanent registration record and on the poll lists.
[Acts 1972, ch. 740, § 1; T.C.A., § 2-725.]
The laws describe an awful lot of steps to be taken *at* the polling place. It presents issues as to the feasibility of challenging each of those rascaly Democrats’ ballots, as well as a problem of timing: namely that the law describes various steps to be taken in the event a challenge is filed *before* the vote happens, at the polling place.
So, while the section cited by David Davis would indeed appear to restrict the primary to voters loyal to the party, the sections under which this situation is to be addressed don’t appear to contain an after-the-fact remedy.
None of this is intended to diminish the implications of the shenanigans Davis describes, but this armchair lawyer ain’t seeing much remedy spelled out in the letter of the law.
What do you think? Will a challenge after the vote fly?
–Jake.
Aug 13th, 2008
David is looking to sue under the equal protection clause applied through Bush v. Gore. He is contesting that Kent Williams orchestrated the defeat of Davis and Cochran by using democrat votes. AN equal protection suit only finds merit if you can identify that intentional deceitful and fraudulent action were taken in order to upset an opposing parties primary rules.
His challenge raises interesting issues. If you’ll recall, Rush Limbaugh’s Operation Chaos encouraged folks to vote in open primaries for Hillary.
But the difference here would seem to be the issue of whether there can be an organized party effort. If Davis has evidence of robo-calls by Dems, email alerts, etc. by party leadership, there may be some merit to his case.
If he does plan on moving forward with a challenge, I think releasing the robocall recording to the old media and bloggers would significantly increase the public’s interest in this story having a continuing lifespan. But I suppose that might mark something of a “point of no return” in terms of challenging it in the public eye.
–Jake.
Yes, Jake, you’re exactly right. The Davis presser does say “evidence.” Kinda’ interesting too that a Democrat who lost to Kurita in the Democrat State Senate Primary is saying the same thing. I don’t know if Kurita’s opponent has made a claim as to have evidence that there was an organized GOP effort to save Kurita.