When a Tennessee state senate seat opens up after the primary but more than 45 days before the November general election, who picks the party nominee, and can a sitting House nominee jump to the open Senate race?

Plain-English summary

The AG was asked about the specific procedural sequence for filling a vacancy expected in Senate District 30 on August 29, 2014. More than two years remained in the senate term, but less than twelve months separated the vacancy from the November general election, so Tenn. Code Ann. § 2-14-201(b) governed.

Because the vacancy would occur after the sixth Thursday before the August primary but more than 45 days before the November general election, the route through Tenn. Code Ann. § 2-14-202(d)(3) controlled. That route directs the county executive committee members representing the precincts that make up the Senate district to nominate the candidate, using any method authorized by the party's rules. The convention had to occur within 10 days of the vacancy. Independent candidates qualified by filing a § 2-5-104 petition by noon on the forty-fifth day before the November election. The election to fill the vacancy took place at the November general election.

On the cross-running question, the AG concluded that a House nominee who had already won the August primary was barred by Tenn. Code Ann. § 2-5-101(f)(5) from also appearing on the November ballot for the Senate seat. But under Tenn. Code Ann. § 2-13-204(a), that nominee could withdraw from the House race. The withdrawal had to occur before the executive committee convened to fill the Senate vacancy, and once it did, the party could make no further nomination for the House position.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why did § 2-14-201(b) apply rather than § 2-14-201(a)?
A: Section 2-14-201(a) covers vacancies that occur twelve or more months before the next general election. Section 2-14-201(b) covers Senate vacancies that occur with more than two years remaining in the term but less than twelve months before the next general election. The Senate District 30 vacancy fit (b)'s window, which then pulled in § 2-14-202(d)'s set of timing-specific procedures.

Q: Which sub-subsection of § 2-14-202(d) governed?
A: Subsection (d)(3) applied. The statute lays out a sliding scale: (d)(1) handles vacancies that occur before the regular qualifying deadline; (d)(2) handles those that occur after the seventh day before the qualifying deadline but before the primary; (d)(3) handles those that occur after the sixth Thursday before the primary but more than 45 days before the November general election; and (d)(4) handles vacancies within 45 days of the November election, which are filled by write-in vote.

Q: Who exactly picks the party nominee under (d)(3)?
A: Members of the political party's county executive committee who represent precincts within the senate district. In a county that contains two or more districts, only the members representing precincts in the district at issue vote. If the county executive committee members are selected at large, the entire committee votes. The procedure must follow Tenn. Code Ann. § 2-13-204(b)(4), and the convention must occur within 10 days of the vacancy.

Q: How does an independent candidate get on the ballot?
A: By filing a qualifying petition that meets Tenn. Code Ann. § 2-5-101(b) with the county election commission by noon on the forty-fifth day before the November general election. Section 2-5-104 governs the petition format.

Q: Can a sitting House nominee just have his or her name on both ballots?
A: No. Tenn. Code Ann. § 2-5-101(f)(5) prohibits a candidate from qualifying for, being nominated for, or being elected to more than one office of member of the general assembly in the same election. The candidate would have to withdraw from the House race before the executive committee convenes to nominate for the Senate vacancy, and that withdrawal under § 2-13-204(a) means the party cannot fill the House nomination either.

Q: What is the deadline for certifying the party's nominee to the election commission?
A: Under § 2-14-202(d)(3), the chosen candidate must be certified to every county election commission in the district by noon on the forty-fifth day before the November general election.

Background and statutory framework

Tennessee's vacancy-filling scheme starts from the date the vacancy occurs. The statute slots vacancies into windows based on (i) how much time remains in the term and (ii) how close the next general election is. Vacancies far from the next election trigger one process, vacancies close to it trigger another. Because Tennessee uses an August primary for state legislative offices and a November general, the meaningful checkpoints include the qualifying deadline, the sixth Thursday before the primary, the primary itself, the forty-fifth day before the general, and the general election.

This opinion sits in the post-primary, pre-45-days-out window, which is the territory of § 2-14-202(d)(3). At this stage, party primaries have already concluded, so the party nomination cannot be voted on by primary voters. Instead, the county executive committee functions as the nominating body. The 10-day-convention requirement and the 45-day certification deadline keep the schedule tight enough to put a nominee on the November ballot.

The cross-running prohibition in § 2-5-101(f)(5) reflects the legislature's choice to bar a single candidate from running for more than one general-assembly seat at the same election. The withdrawal mechanism in § 2-13-204(a) is the safety valve. The catch is that withdrawal forfeits the party's ability to replace the candidate for the original office, which creates a real trade-off for any sitting nominee who wants to switch races.

Citations and references

Statutes:

• Tenn. Code Ann. § 2-14-201 (filling vacancies; timing rules)
• Tenn. Code Ann. § 2-14-202 (procedure for filling vacancies)
• Tenn. Code Ann. § 2-13-204 (party nomination; candidate withdrawal)
• Tenn. Code Ann. § 2-13-202 (general assembly offices definition)
• Tenn. Code Ann. § 2-5-101 (qualifying for office; single-office rule)
• Tenn. Code Ann. § 2-5-104 (independent candidate petitions)

Subject

Opinion No. 14-78, Procedures for Filling a Vacancy in the State Senate, August 27, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-078.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 27, 2014
Opinion No. 14-78
Procedures for Filling a Vacancy in the State Senate

QUESTIONS

1. A vacancy will occur in Senate District 30 on August 29, 2014. What statute governs the process for filling this vacancy?

2. When would an election to fill the vacancy occur?

3. What would be the procedure for nominating candidates?

4. Are members of the House of Representatives who have been nominated to be on the ballot in November 2014 by winning the August primary election eligible to be a candidate to fill the vacancy in Senate District 30?

OPINIONS

1. Because there will be more than two years remaining in the term but less than 12 months before the November general election when the vacancy occurs, Tenn. Code Ann. §§ 2-14-201(b) and -202(d) govern the process for filling the vacancy in Senate District 30.

2. An election to fill the vacancy in Senate District 30 would occur as part of the November 2014 general election.

3. Pursuant to Tenn. Code Ann. § 2-14-202(d)(3), political-party candidates would be nominated by the members of the party's county executive committee who represent the precincts composing Senate District 30; however, if the members of a party's county executive committee are selected at large, the party's candidate would be nominated by the full executive committee.

4. Tenn. Code Ann. § 2-5-101(f)(5) prohibits a candidate from qualifying for or being nominated or elected to more than one office of member of the general assembly. But any candidate for the House of Representatives who has won the August primary election and thus been nominated to represent a political party may withdraw from being the political-party House nominee as long as such withdrawal occurs before the political party's county executive committee convenes for the purpose of selecting a nominee to fill the Senate vacancy. Such a withdrawal would mean that the political party may make no further nomination for the House position.

ANALYSIS

1. to 3. This Office understands that a vacancy will occur in Senate District 30 on August 29, 2014, upon the resignation of the current senator and that more than two years will remain in the term. The procedure for filling a vacancy in the office of member of the general assembly is governed by the provisions of Tenn. Code Ann. §§ 2-14-201 and -202. Tenn. Code Ann. § 2-14-201 provides as follows:

(a) If twelve (12) months or more remain prior to the next general election for members of the general assembly and the seat of a member of either house becomes vacant, a successor shall be elected pursuant to § 2-14-202(a)-(c) by the qualified voters of the district in which the vacancy occurred. The successor shall serve the remainder of the original term.

(b) If a vacancy occurs with more than two (2) years remaining in a term in the state senate, but less than twelve (12) months prior to the next general election for members of the general assembly, then a successor shall be elected pursuant to § 2-14-202(d) by the qualified voters of the district in which the vacancy occurred. The successor shall serve the remainder of the original term.

Since the vacancy will occur with more than two years remaining in the term but less than 12 months before the November general election, the provisions of Tenn. Code Ann. § 2-14-201(b) govern the process for filling the vacancy. That statute provides that a successor shall be elected pursuant to § 2-14-202(d), which provides as follows:

(1) If a vacancy occurs in the state senate in a seat with more than two (2) years remaining in the term, but less than twelve (12) months before the next general election for members of the general assembly, candidates for the primary elections and independent candidates shall qualify at the regular qualifying deadline for state elections.

(2) If a vacancy as described in subdivision (d)(1) occurs after the seventh day before the regular qualifying deadline for statewide offices, candidates for the primary elections and independent candidates shall file the necessary qualifying petitions before twelve o'clock (12:00) noon, prevailing time, on the sixth Thursday before the day of the primary election. Any candidate wishing to withdraw shall do so before twelve o'clock (12:00) noon, prevailing time, on the fourth day after the qualifying deadline.

(3) If a vacancy as described in subdivision (d)(1) occurs after the sixth Thursday before the primary election, the members of the county executive committees who represent the precincts composing such senate district may nominate a candidate to appear on the November election ballot by any method authorized under the rules of the party. The procedure to be followed by an executive committee shall be the same as set forth in § 2-13-204(b)(4). Persons so chosen shall be certified to every county election commission wholly or partially in the district by twelve o'clock (12:00) noon, prevailing time, on the forty-fifth day prior to the regular November election. Independent candidates shall qualify by filing petitions as provided for in § 2-5-104 by twelve o'clock (12:00) noon, prevailing time, on the forty-fifth day prior to the regular November election. Any candidate wishing to withdraw shall do so before twelve o'clock (12:00) noon, prevailing time, on the fourth day after the qualifying deadline.

(4) If a vacancy as described in subdivision (d)(1) occurs within forty-five (45) days of the next general election for legislators, the candidate receiving the highest number of write-in votes at such election shall be elected.

Because this vacancy will occur after the sixth Thursday before the primary election but more than 45 days before the November general election, the provisions of § 2-14-202(d)(3) govern the manner in which political-party candidates are nominated. Pursuant to this statute, members of a political party's county executive committee who represent the precincts composing Senate District 30 "may nominate a candidate to appear on the November election ballot by any method authorized under the rules of the party" in accordance with the procedures set forth in Tenn. Code Ann. § 2-13-204(b)(4).

Tenn. Code Ann. § 2-13-204(b)(4) provides that if the office to be filled is a seat in the general assembly, it is to be filled by the members of the party's county executive committee who represent precincts within the district, and in counties with two or more districts, only members of the party's county executive committee who represent precincts in a particular district would nominate the party's candidate. If, however, the members of a party's county executive committee are selected at large, then the party's candidate would be nominated by the full executive committee. Tenn. Code Ann. § 2-13-204(b)(4) also requires that a convention for the purpose of selecting a nominee must occur within 10 days of the date the vacancy occurs.

Once the convention is held in accordance with Tenn. Code Ann. § 2-13-204(b)(4) and a nominee is selected, the political party would then need to certify its candidate to the county election commission by the 45th day before the November general election in order for the candidate's name to appear on the ballot for that election. Similarly, any individual who wishes to run as an independent candidate would have to qualify by filing a nominating petition that complies with the requirements of Tenn. Code Ann. § 2-5-101(b) with the county election commission by the 45th day before the November general election. A successor to fill the vacancy in Senate District 30 would then be elected at the November general election.

4. Tenn. Code Ann. § 2-5-101(f)(5) provides that

[n]o candidate, whether independent or represented by a political party, may be permitted to submit and have accepted by an election commission, more than one (1) qualifying petition, or otherwise qualify and be nominated, or have such candidate's name anywhere appear on any ballot for any election or primary, wherein such candidate is attempting to be qualified for and nominated or elected to more than one (1) state office as described in either § 2-13-202(1) or (2) or in article VI of the Constitution of Tennessee or more than one (1) constitutional county office described in article VII, § 1 of the Constitution of Tennessee or any other county-wide, voted on by voters during any primary or general election.

The State offices described in Tenn. Code Ann. § 2-13-202(1) and (2) are the offices of governor and of member of the general assembly. Thus, pursuant to this provision, members of the House of Representatives who have been nominated to be on the ballot in November 2014 by winning the August primary election would be prohibited from also qualifying or otherwise appearing on the November 2014 general-election ballot as a candidate to fill the vacancy in Senate District 30.

Any candidate for the House of Representatives who has been nominated to represent a political party may, however, withdraw from being the political-party nominee. See Tenn. Code Ann. § 2-13-204(a). Such withdrawal must occur before the political party's county executive committee convenes for the purpose of selecting a nominee to fill the vacancy in Senate District 30 in order to comply with the provisions of Tenn. Code Ann. § 2-5-101(f)(5). As previously stated, such convention must occur within 10 days of the date the vacancy occurred. Tenn. Code Ann. § 2-13-204(b)(4). Withdrawal under such circumstance would mean that "the political party may make no further nomination for the position in question." Id. § 2-13-204(a).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Jim Kyle
State Senator
318 War Memorial Building
Nashville, TN 37243

The Honorable Reginald Tate
State Senator
320 War Memorial Building
Nashville, TN 37243

The Honorable Antonio Parkinson
State Representative
Suite 36B, Legislative Plaza
Nashville, TN 37243