The Republican-dominated Tennessee House is sparking fears of an unprecedented breach of judicial independence by moving forward with a proposal to remove a judge for expanding absentee voting in 2020 due to the COVID-19 pandemic.
A resolution with nearly unanimous House GOP support is calling for proceedings that could remove Davidson County Chancellor Ellen Hobbs Lyle, whose ruling was ultimately overturned by the state Supreme Court but only after the state promised to allow people at higher risk of COVID-19 complications to vote by mail.
House Speaker Cameron Sexton said the resolution seeks to “truly see if she was legislating from the bench, which we don’t think should be allowed.”
Many states expanded access to absentee balloting or other voting methods due to concerns about the coronavirus spreading at crowded Election Day polling places, despite arguments by former President Donald Trump and his Republican allies that any expansions should have legislative approval.
The proposal has uncertain prospects in the Senate where GOP Speaker Randy McNally said it's “definitely not a slam dunk." Instead of removing Lyle, McNally said he would rather reconfigure where constitutional challenges against the state are heard, moving more of them to Republican-leaning areas instead of Nashville
But removal may not be a dead proposition. Trump, still highly influential among the GOP, continues to repeat unfounded claims of absentee voting election fraud.
The resolution would create a House-Senate panel that would recommend whether or not to remove the judge. A two-thirds vote in each chamber would then be needed for removal. Sixty-five of 73 House Republicans have signed on. To date, the Senate version has no cosponsors.
The Tennessee Bar Association has come out in strong opposition to the resolution, saying that it could set “a precedent that any time a judge rules against the state, or on a statute, or renders a politically unpopular decision, that decision could potentially trigger legislative removal proceedings against that judge."
Sylvia Albert, director of the voting and elections program at the advocacy group Common Cause, said the proposal threatens the autonomy of the judicial branch.
“It is a warning to judges that if you don’t vote the way we want, we will expel you,” she said. “It is basically an attempt to eliminate the balance of powers among the three branches of government.”
Over the last five decades, Tennessee lawmakers have twice removed judges through the constitutional authority. Both times, the judges faced federal criminal convictions, most recently in 1993.
Lawmakers in 1978 couldn't get enough votes to remove then-Court of Criminal Appeals Judge Charles Galbreath on numerous grounds, including sending a letter on official stationery to Hustler magazine depicting his preferred sexual acts and publicly describing Judicial Standards Commission members as “sons of (expletive).” Lawmakers censured him, and he resigned.
Lyle, appointed in 1995 by Republican Gov. Don Sundquist, was reelected numerous times and is well-known for business litigation expertise. She's up for reelection in August 2022.
As the pandemic took hold, Tennessee elections officials said fear of COVID-19 was not a reason to vote by mail. Lyle contradicted them by ruling that Tennessee must offer widespread absentee voting amid the pandemic, and it did for the Aug. 6 primary. The state Supreme Court overruled her and restored the requirement of an excuse for absentee voting for November. However, the high court also ruled that people could vote absentee if they believed they or someone in their care faced a higher risk of COVID-19. Citing the state's commitments to justices, Lyle extended that ruling to include any voter whose household included someone with an underlying health condition.
After Lyle's ruling in June, Attorney General Herbert Slatery issued a rare rebuke, saying the expansion was “another court decision replacing legislation passed by the people’s elected officials with its own judgment.” Days later, Lyle said “shame on you” in virtual court to Tennessee officials who held off on sending coronavirus-related absentee applications for hours after the initial ruling and rewrote the applications without her instruction. She warned of the “specter of criminal contempt” if the state didn't follow future orders.
The attorney general's office said the removal push is a matter for lawmakers. A spokesperson for Hargett's Department of State didn't explicitly call for Lyle's removal, but reiterated complaints about the judge.
“We encourage the public to read Chancellor Lyle’s orders and watch the hearings to make up their own mind as to whether Chancellor Lyle violated her constitutional authority," said State Department spokesperson Julia Bruck. "We found her court orders to be confusing, conflicting, and a usurpation of authority."
Republican Rep. Tim Rudd, the resolution’s sponsor, similarly said Lyle “clearly over stepped her authority by any level of judgment.”
Democratic lawmakers deemed it an unconstitutional Republican effort that prioritizes restrictions on voting.
“Why are they so afraid or intimidated by people exercising their constitutional right to vote?” said House Democratic Caucus Chairman Vincent Dixie of Nashville.
Anthony Izaguirre in Lindenhurst, New York and Bruce Schreiner in Frankfort, Kentucky contributed to this report.