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Secretary of State Anticipates 2016 Retention Election for Justice Wade’s SCOTN Replacement

Justification for earlier vote supported in constitutional clause unaffected by Amendment 2

State elections officials and the attorney general’s office spent last week keeping mum about uncertainty over the timing of retention elections for Supreme Court judges in wake of Tennessee voters ratifying Amendment 2 last year.

But the Tennessee secretary of state’s office — which oversees the division of elections — appears now to have concluded that the successor to retiring Supreme Court Justice Gary Wade should first face a retention election next August, and not in 2022, as some have speculated.

“Per Tenn. Const. Article VII Section 5 there will be a retention election in 2016 for Justice Wade’s vacancy,” Adam Ghassemi, director of communications for Secretary of State Tre Hargett, wrote in an email to TNReport Friday evening.

The provision of the state Constitution cited in Ghassemi’s statement declares in part that should an unscheduled judicial opening arise, “such vacancy shall be filled at the next biennial election recurring more than thirty days after the vacancy occurs.”

The “next biennial election” for Tennessee judges is next August.

Justice Wade, who won a new eight-year term to the Supreme Court last August, unexpectedly announced his retirement from the bench on July 24.

Wade’s departure, effective Sept. 8, will take effect approximately seven years ahead of schedule, and it will create the first vacancy on the five-member Supreme Court since voters endorsed new judicial-selection procedures in November.

Those revisions were contained in the Amendment 2 referendum, which won approval from 61 percent of  the ballot-question’s vote during the 2014 general election.

Amendment 2 eliminated a pronouncement in the Tennessee Constitution declaring, “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

In place of that sentence, which had been part of the state’s guiding document since 1870, Amendment 2 established a new system in which the governor picks the judges to serve on appeals courts and the Supreme Court. Those appointments are then subject to an as yet unestablished legislative confirmation process and, later, retention elections in which voters choose to keep or reject the judges.

However, the portion of the Tennessee Constitution cited by the secretary of state’s office on Friday, Article VII, was in fact not altered by Amendment 2.

Article VII addresses “State and County Officers.” Amendment 2 rewrote only Section 3 of Article VI, which is titled, “Judicial Department.”

Amendment 2 modified the Tennessee Constitution so that it now declares that the state’s most powerful judges “shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor.”

In wake of Wade’s retirement announcement, Gov. Bill Haslam’s administration indicated confusion over whether their new Supreme Court appointee will stand for a retention vote in August 2016 — the next regularly scheduled judicial election — or in 2022, when Wade’s full term was scheduled to expire.

The Memphis Commercial Appeal reported last week that Haslam’s office had determined that the timing for Wade’s replacement to face retention election is “unclear at this time.”

“We anticipate the General Assembly will address the question when they reconvene early next year,” the governor’s deputy director of communications told the Commercial Appeal.

Current Tennessee statutory code, which was in effect before passage of Amendment 2, requires judges to win retention within two years of being appointed to the court.

The new constitutional mechanisms contained in Amendment 2 were sold to voters under the promise that they would add “checks and balances” and provide “more clarity” to the state’s process for selecting appeals and high-court judges.

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