Municipal School Vote Can Proceed, for Now -- Referendums OK for Suburbs, Could Be Voided

By McMillin, Zack | The Commercial Appeal (Memphis, TN), July 13, 2012 | Go to article overview

Municipal School Vote Can Proceed, for Now -- Referendums OK for Suburbs, Could Be Voided


McMillin, Zack, The Commercial Appeal (Memphis, TN)


U.S. Dist. Judge Samuel Hardy Mays gave many suburban leaders and residents what they wanted Thursday by refusing to stop the municipal school referendums on the Aug. 2 ballot.

Mays determined that the Shelby County Commission had not proven a strong likelihood that a statute allowing the referendums this year was unconstitutional, nor that Shelby County would suffer irreparable harm if the referendums were allowed to continue.

Further, he agreed that substantial harm might be suffered by the suburbs if he enjoined, or stopped the elections and later determined the statute allowing them was valid.

The better way of proceeding here is not to enjoin the election but to second-guess it, Mays said, meaning to second guess himself. Everything I see and the more I think about it, the more I see that restraint is counseled here.

One reason he did not find irreparable harm in allowing the referendums to go forward, Mays said, is that a remedy exists: If he rules the statute allowing the votes unconstitutional, then the vote itself becomes invalid or void.

I made the statement earlier which I stand by: A vote under a void statute is void whatever the vote is, Mays said. If 99 percent of the people of Lakeland voted to have a school district and they voted under an unconstitutional statute, it wouldn't be any more valid.

Even as early voting in the referendums officially begins at Shelby County Election Commission offices Downtown on Friday morning, just two blocks away Mays will be meeting again with lawyers involved in the schools merger litigation.

They will discuss a schedule for a fuller hearing on whether the 2012 law allowing the referendums is constitutional. Mays told Shelby County Election Commission lawyers he hoped to have a ruling before the ballot is approved for the Nov. 6 elections, which would include elections for municipal school boards.

But if Mays rules the law allowing the referendums invalid, the school board elections would not go forward.

During Thursday's hearing, the county commission's lead attorney in the litigation, Leo Bearman Jr., hammered home the contention that the state legislature's law allowing the referendums, Public Chapter 905, clearly was meant to apply to only one county in the state, Shelby, and in its application the law would touch only one county, Shelby.

A provision under Article 11, Section 9 of the Tennessee Constitution says that if the legislature designs a law that has what is called only local effect pertaining to just one county, it must receive two-thirds approval of that county's legislative body.

This was an act designed for and created for and passed for Shelby County only, Bearman said. Lawyers for the state and the suburbs fenced with Bearman and Memphis City Council lawyer Allan Wade over the possibility that a few other counties might be affected by Chapter 905, with Gibson and Carroll Counties receiving the most attention.

One of the provisions of the 2011 law that Mays upheld, known then as Public Chapter 1, said that the law would apply in any situation where a county school district absorbing a dissolving special school district would result in an increase in student population by more than 100 percent. …

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