Heritage Foundation does a sloppy job explaining, "Why Tennessee’s New Residency Requirement for Congressional Candidates Is Blatantly Unconstitutional."

by Rod Williams, May 1, 2022- The Heritage Foundation is one of the policy thank-tanks that I have long supported.  Generally, I find their analysis and policy positions well-reasoned. I seldom disagree with Heritage and am often enlighted and educated.  

Resently Heritage posted an essay by  Hans A. von Spakovsky  entitled, "Why Tennessee’s New Residency Requirement for Congressional Candidates Is Blatantly Unconstitutional."  In it, he explains that the Constitution lays out the qualifications for those running for Congress and that states may not add additional requirements. 

I don't doubt he is right, as far as he goes.  However, I think this is a sloppy piece of work. During the consideration of the bill, this issue addressed by Mr. Spaakovsky was discussed. Those who sponsored the bill argued that by passing the bill, they were not adding new requirements to run for Congress; they were adding requirements to seek the nomination of a political party in a primary election.  Those denied the opportunity to run in a primary due to the new residency requirement may still run as an independent. 

Maybe that reasoning is faulty. I am not convinced that the argument will hold water. In any event, Mr. Spakovky should have addressed that argument. He just ignored it.

I am not sure the new law will be challenged in court. Primarily, because for the upcoming election the law is not in effect.  Governor Bill Lee did not sign the law and it became law without his signature. While waiting for it to become law, the qualifying deadline came and went. Laws cannot be retroactive. So, if the law is legal, and unless it is challenged it will be assumed to be legal, it will not apply to the upcoming primary but to the next primary for Congressional candidates. The law is keeping no one off the ballot.

Also, it should be noted that the candidates the law was aimed at keeping off the ballot, are at this time not on the ballot. They are not off of the ballot because of the new law, but because the Tennessee Republican Party Executive Committee ruled they were not eligible.  The ineligibility was for the same residency reason as the law.  Parties get to decide who can run under their label. The Executive Committee's decision was not based on law but on party policy.

For the record, I do not think candidates Morgan Ortegas and Robbie Starbuck should have been kicked off the ballot. If Fifth Congressional primary voting Republicans think that these candidates do not merit becoming the party's candidate let that be determined at the ballot box.  At the same time, I do not demonize the members of the Executive Committee as RINO's, liberals, insiders, the swamp, or thugs as some Republicans have done.  I respectfully disagree with the decision of the Executive Committee.

At this point, I do not know what recourse the removed candidates have. My Spakovky sheds no light on this issue. 

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