Attorney Stuart James has written the Election Commission asking the panel to reject a petition seeking to recall District 7 City Council member Chris Anderson.
He said, "Unfortunately, The Hamilton County Election Commission once again faces the issue of the recall of a duly elected officeholder. This attempt at a recall is a clear abuse of the process. It brings the issue of the proper form and intent of the petition directly in front of this Commission. This Commission faces serious issues in its vote on the Councilman Anderson Recall. The Commission should uphold the integrity of the process and find that the recall petition is not in proper form and reject the attempts to circumvent democracy for the discriminatory purposes that motivate the petitioners.
"In considering this recall the Commission must consider the form of the petition and the motivation for the recall."
He said the recall of Councilman Anderson came after serving nine months in office and after winning his seat "by a landslide 56 percent of the vote."
Attorney James said the language of the petition is "vague and non-specific."
He said, "The Commission should first, ensure that Commissioner Crangle is recused from deciding this issue and then the Commission should reject the petition because the form is improper and the recall itself is unconstitutional.
"At the beginning, this Commission must determine that Commissioner Tommy Crangle has a conflict of interest regarding both the debate and the vote on whether to permit the recall to move forward. Mr. Crangle is an announced candidate for State Legislature for District 27. He has, moreover, made previous statements regarding the Domestic Partner Benefits Ordinance showing he has a bias or prejudice when it comes to the issues facing this Commission on the recall. Mr. Crangle should, therefore, remove himself from both the vote and the debate regarding the Anderson recall.
"Next, this Commission should reject the petition because it is vague, untransparent, and there has been insufficient notice. The Commission should also consider why Mr. Wysong, a non-resident of the district, is orchestrating this recall. Moreover, the new form of the petition is vague about any reason for the recall. Also, there has been insufficient notice of changes to the petition which has made the overall process confusing for citizens to follow.
"Finally, the purpose and form of the recall petition is improper because it states a pretextual reason for the recall when the recall is about one thing, removing Councilman Anderson because he is gay. The recall is an attempt to remove an officeholder because of his sexual orientation which is an act of discrimination prohibited by the United States Constitution.
"Commissioner Crangle should refrain from debate and abstain on voting on the recall issues because he has a clear and personal conflict of interest.
"If there is an appearance of impropriety any person occupying a position of public trust must consider how that appearance of impropriety impacts the execution of their public duties. If such an appearance exists, then the person occupying that position of trust has the moral and official duty to step away from conducting business as a public official.
"This concept, as the members of this Commission know, is most important in the exercise of each Election Commissioner's performance of their duties. In Mr. Crangle's case that appearance is now blatantly obvious if he participates in the debate or takes any action to vote on the recall issues before this Commission. The undersigned knows Mr. Crangle and he knows Mr. Crangle will voluntarily choose not to exercise any of his duties of office because of his prior public statements on the Domestic Partner Ordinance and because of his announced candidacy for the State Legislature.
"We are sure Mr. Crangle will do the proper thing under the circumstances. However, if he does not this Commission should consider the following:
"Tenn. Code 2-12-102 (b) states in pertinent part: "Any member of the county election commission who qualifies as a candidate for any public office while serving as a member of the commission shall automatically become disqualified to continue in office as a member of the commission, and a vacancy on the commission shall be considered to exist."
"Since 'qualifies' is a fairly distinct event that happens when the petition is certified after the signatures are collected, Mr. Crangle is not automatically disqualified. However, because Mr. Crangle is an announced candidate for state legislature there is an appearance of impropriety.
"First, Crangle, as an announced candidate, should not exercise his duties and responsibilities on the Election Commission because he knows that once he qualifies he must resign. To act on issues of great public concern knowing he is a candidate but not yet qualified creates that appearance of impropriety.
"Second, Crangle, as an announced candidate for a legislative district which overlaps geographically with City Council District 7, has a direct and personal
conflict of interest in deciding any election issues because whether a recall occurs or not will have a direct impact on his own election. Crangle knows, politically speaking, that both the Domestic Partner Ordinance and the recall will attract more conservative voters to the polls. He knows that both issues have a conservative undercurrent to them which may impact voter turnout in his favor. Regardless of whether this premise is true or false, it creates that appearance of impropriety if he votes on these issues. The public will justifiably question his motives and whether those motives are in his own political self-interests.
"Additionally, Tenn. Code 2-1-112 (a) 3 says,
“No member of a county election commission who is appointed to the commission after January 1, 2009, shall be the campaign manager or treasurer of any candidate's political campaign in a local, state or federal election during the commissioner's term of office. A violation of this subdivision (a) (3) subjects the member to immediate removal from office by a majority vote of the state election commission. Nothing in this subdivision (a)(3) shall be construed to prohibit a member of the county election commission from providing uncompensated advice on a one-on-one basis to a candidate or party officer, nor shall it prohibit providing a financial contribution to a candidate or party organization."
"Crangle has not, as of the writing of this submission, announced a campaign manager. Therefore this Commission should consider Crangle as his own campaign manager at this point and, even if not, he has a treasurer and it seems ridiculous to allow him to be on the election commission while his treasurer cannot be. Once again, if it smells like a rat it is a rat, and the appearance of impropriety is strong if Crangle participates in any way on the Anderson recall issue.
"We hope Mr. Crangle removes himself from this debate and from voting on this issue. If he does not do the right thing, before the Commission engages in a debate of the recall issues, we ask that the Commission act on Crangle's conflict.
"If Crangle participates in the disposition of the recall issues Councilman Anderson strongly believes it creates a legitimate legal issue as to the legality of the Commission's actions.
"B. The form of the Petition is improper because it is vague, untransparent, and there has been little notice of the new petition
"This Commission has a duty to prevent the abuse of the recall process. Moreover, there is nothing in the law to prevent this Commission from acting to preserve the vote, the intent of the voter, or to prevent the use of the recall to engage in discriminatory practices. The history behind this petition demonstrates that the petition is in improper form because it either intentionally or negligently named groups that were not involved in the recall effort. On that basis alone the petition should not be approved. However, we are aware another form of the petition has been submitted to the Commission. That form had not been publicly disseminated although a Facebook page on the Anderson recall already exists.
"The amended petition which excludes the Tea Party references is also improper form because it is vague and ambiguous. Furthermore, the petition is a pretext for removing an officeholder for discriminatory purposes. The petition does not give any reason for removal. Moreover, the revised petition refers to a websiteRecallAnderson.com, procured by Wysong’s son, who has also made discriminatory anti-gay remarks about Anderson.
"The revised petition and original petition states in pertinent part:
"'Shall Councilman Chris Anderson who represents the Seventh District of The City of Chattanooga be recalled?'
"Therefore, the question seemingly asks voters if they want to remove Councilman Anderson for not doing a good job. Before addressing the pretextual purpose of the petition for recall, which taints the entire recall (the rat smells like a rat) Councilman Anderson asks this Commission these questions:
"If he is not doing a good job as the petition seemingly suggests isn't that what the regularly scheduled election is for? Just what, based on the question, is the Councilman being recalled for?
"At the next election, if District 7 voters are unhappy with Councilman Anderson, they can vote him out of office just as they did with Mr. Rico. Instead, the recall effort wants this community to go through a recall process requiring a vote on a question that is addressed in every election we face...is our elected representative doing his or her job to warrant reelection or as the vaguely worded petition suggests should the elected representative be reelected?
"Is this Commission going to approve every petition filed for a recall just because an officeholder does a poor job in some voters’ minds? Is this Commission going to approve Petitions simply asking for a recall without specific reasoning? Is this Commission going to approve a petition simply asking for a recall without a stated reason? If so, what are elections for and why can the will of the voters be so easily undone?
"If the level of dissatisfaction with some voters causes them to ask for recall just because someone is doing a poor job, just how many recalls will this community have to face, and how many recalls will the voters have to endure? If the voters just want to have a question on the ballot asking voters to recall an official without a reason, how many recalls will the citizens have to endure?
"Does this Commission think that voter turnout will be higher in the recall, or will it be so low that a distinct minority will elect more extreme candidates that do not represent the views of the majority but the views of Wysong minority?
"This petition undermines the electoral process.
"There is no doubt Manny Rico did not do a good job. He was beaten by 56% of the voters! Why was he not recalled because he had to be doing a bad job? Where was the leader of this recall when Rico was not addressing the needs of District 7 voters?
"The general form of the recall question shows that the organizers of this recall are putting the recall together as a pretext to remove a legitimately elected officeholder for a discriminatory reason. Hence the vagueness of the petition.
"First, please consider the quotations at the beginning of this submission.
"Next, please consider the backtracking of the organizers by backing off their statements about homosexuality.
"Can the will of the voters be so easily undone?
"If the level of dissatisfaction with some voters causes them to ask for recall just because someone is doing a poor job, just how many recalls will this community have to face, and how many recalls will the voters have to endure? If the voters just want to have a question on the ballot asking voters to recall an official without a reason, how many recalls will the citizens have to endure?
"Does this Commission think that voter turnout will be higher in the recall, or will it be so low that a distinct minority will elect more extreme candidates that do not represent the views of the majority but the views of Wysong minority?
"This petition undermines the electoral process.
"There is no doubt Manny Rico did not do a good job. He was beaten by 56% of the voters! Why was he not recalled because he had to be doing a bad job? Where was the leader of this recall when Rico was not addressing the needs of District 7 voters?
"The general form of the recall question shows that the organizers of this recall are putting the recall together as a pretext to remove a legitimately elected officeholder for a discriminatory reason. Hence the vagueness of the petition.
"First, please consider the quotations at the beginning of this submission.
"Next, please consider the backtracking of the organizers by backing off their statements about homosexuality.
"C. The petition is unconstitutional because it uses state mechanisms to achieve a discriminatory purpose.
"The recall petition against Councilman Anderson is unconstitutional because it deprives Councilman Anderson the Equal Protection under the laws-violating the Fourteenth Amendment to the Constitution- because it forces him to submit to a recall election nine months after taking office simply because he is gay and for no other legitimate reason. The form of the petition strongly suggests an improper discriminatory motive. The recall question is vague and ambiguous, it comes on the heels of emotionally charged and discriminatory comments by many of the recall leaders. The wording suggests backtracking to hide the true purpose of the recall, to remove an officeholder because of his or her sexual persuasion.
"The Fourteenth Amendment of the U.S. Constitution provides that no state “shall deprive citizens the equal protection of the laws.” U.S. Const. Amend 14. Classifications based on sexuality are treated just as classifications based on sex or race. U.S. v. Windsor, 133 S. Ct. 2675 (2013). The Equal Protection clause applies to actions taken by the state, but that includes actions by citizens through ballot initiatives. Hunter v. Erikson. 393 U.S. 385 (1969). Actions that are discriminatory in nature cannot be upheld simply because they arose from a citizen initiated election or recall. Washington v. Seattle School District, 458 U.S. 457 (1982). Even under a rational basis analysis, actions which single out homosexuals-even by popular election-are invalid. Romer v. Evans, 517 U.S. 620 (1996). Actions by private citizens done through the democratic mechanisms of the state receive the same scrutiny under the Equal Protection clause as if they were done directly by the state itself. Batson v. Kentucky, 476 U.S. 79 (1986). Therefore, if this Commission approves the petition under the factual circumstances before it the Commission is committing an unconstitutional act, approving a recall motivated by a discriminatory purpose. The form of the petition cannot be considered in a vacuum, it must be considered in the context it was brought forth to this Commission.
"The Supreme Court laid the groundwork by finding discriminatory citizen action unconstitutional in Hunter v. Erikson. 393 U.S. 385. A city of Akron initiative was ruled unconstitutional under the Fourteenth Amendment because the charter provision prevented the city council from passing laws banning discrimination without a citizen referendum. A group of citizens petitioned the charter provision to force any non-discrimination ordinance to be placed on the ballot, their proposal was placed on the ballot, and passed by a majority vote. The court said, “By adding [the provision] to its Charter, the City of Akron. . . not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future ordinance could take effect. . . . [The provision] place[d] special burdens on racial minorities within the governmental process.” The court concluded, “The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.”
"Basically, the court in Hunter found unconstitutional a group of citizens making citizens in different classifications play by different rules. Justice Powell, writing for the court in Crawford v. Board of Education, wrote that Hunter “involved more than a mere repeal of the fair housing ordinance; personas seeking antidiscrimination housing laws-presumptively racial minorities-were singled out for mandatory referendums while no other group . . . [faced] that obstacle.” 458 U.S. 527, 535.
"Two years later, in Washington v. Seattle School District, the court clarified that Hunter stood for the proposition that “[State action that] explicitly us[es] the racial nature of a decision to determine the decision-making process . . . places special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities [than for other members of the community] to achieve legislation that is in their interest.” 458 U.S. 457.
"That is, essentially, what is going on here in Chattanooga, now. The Commission is being asked to make it more difficult for a group of people to get elected by allowing a recall a mere nine months after the general election when the recall is based simply on the elected official’s sexual orientation. Simply put, this is no different than a recall of a black elected official in the 1960s because the official was black. It is no different than the recall of a woman because she is woman, a Muslim because they are Muslim, an older elected official because they or old, or a Christian because they are Christian.
"The leaders of this recall have submitted a vaguely worded petition to accomplish their goal of removing an officeholder for a discriminatory purpose. Unfortunately the discrimination bad apple spoils the whole bunch. It also spoils the recall process, which if properly done is an important aspect of our republican form of government. It must be rarely used instead placing confidence in the voters at each regularly scheduled election.
"The issues being raised here are is similar to the United States Supreme Court's reasoning in Batson v. Kentucky where the Supreme Court ruled that when a private attorney strikes a juror with a peremptory challenge for a racially motivated purpose, it is unconstitutional because the court sanctions the discrimination by simply allowing it to happen. The Supreme Court extended Batson to protect jurors from gender discrimination in J.E.B. v. Alabama, 511 U.S. 127, 128-129. Last month, the Ninth Circuit held that in light of recent Supreme Court rulings, gays and lesbians are now afforded the same protections. Smithkline Beecham Corp. v. Abbott Labratories, Slip Op. (Ninth Cir. Jan. 21, 2014). http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000692.
“Gays and lesbians have been systematically excluded from the most important institutions of self-governance,” Judge Reinhardt wrote for a unanimous panel. “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”
"Here, the Commission is being asked to place the State’s imprimatur on a recall that is motivated purely by discrimination against Mr Anderson. The simple question the Election Commission must ask is whether the recall would be legitimate if it was based on race? If the answer to that question is no it would not, then the recall petition is unconstitutional.
"There is even a more basic question the Commission should answer:
"Are recalls initiated "on the basis of sexual orientation [an ] [exercise of a] deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals" of running for and holding public office when elected by the voters of our community in a valid election?
"The answer to this question is an unqualified yes. The leaders of this recall have revealed its true purpose in the vague form of the petition and in their
commentary on Councilman Anderson, he needs to be removed because he is gay.
"If the Commission approves the petition then it is validating the true purpose of the recall.
"Perhaps on this occasion it is best to place the burden on the leaders of the recall to justify their actions in a Court of Law by disapproving the petition and repudiating this recall as an unconstitutional abuse of the recall process.
"On behalf of Councilman Anderson, Mr. Tidwell, Mr. Joyner and I thank you for your consideration of these serious issues."