Constitutional questions surround attempt to add residency rule for Tennessee congressional primaries

By Jon Styf | The Center Square, Feb 15, 2022 - A bill that would put an additional residency requirement on candidates seeking congressional seats in Tennessee advanced Tuesday from a Senate committee, but its constitutionality was questioned.

Senate Bill 2616 would require a candidate to vote in the three previous statewide elections before running for a party's nomination in a U.S. Senate or U.S. House race. Sen. Frank Niceley, R-Strawberry Plains, plans to amend the bill to change the rule to three years.

The bill was recommended for passage, 5-1, with the amendment by the Senate State and Local Government Committee and heads to the Senate Calendar Committee.

“This bill is real simple,” Niceley said. “It’s the same rules as the Tennessee Senate and House of Representatives.”

The issue came to the forefront after former President Donald Trump-backed candidate Morgan Ortagus, the former spokesperson for the U.S. Department of State, and Robby Starbuck announced they were running for Tennessee’s newly drawn 5th Congressional District in the U.S. House. Current U.S. Rep. Jim Cooper, D-Nashville, has said he will not run for the seat.

When asked by Sen. Ken Yager, R-Kingston, whether the state can set rules for federal positions, committee attorney Josh Houston said there have been several attempts by states to enact requirements and all have been ruled unconstitutional.

“There have been cases like this before and they have all been ruled unconstitutional,” Houston said, citing a California attempt to require residency before an election that was rejected by a 5-4 U.S. Supreme Court ruling.

Niceley said, however, his law pertained to primary elections, making it different. He also said the 10th Amendment gives Tennessee the right to enact the requirement.

“The Supreme Court today would rule in our favor,” Niceley said. “That’s why we put it in the primary. We aren’t stopping anyone from running.

“The word primary is not mentioned in the constitution.”

Houston was asked whether he thought the wording change would make a difference with the court.

“I am not sure what the effect would be to limit it,” Houston said. “That is up to someone different than me.”

Sen. Todd Gardenhire, R-Chattanooga, was the lone dissenting vote, saying he didn’t believe the Legislature should be making requirements for political parties on who should receive a party’s nomination.

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