If a candidate loses a primary for one division of a Tennessee circuit court, can they still appear on the general election ballot for a different division of the same circuit court?

Subject

Ability of Unsuccessful Primary Candidate for One Division of Circuit Court to Appear on General Election Ballot for a Different Division of Circuit Court

Plain-English summary

Representative Esther Helton asked whether Tennessee's sore-loser law applies when a candidate loses a circuit-court primary for one division and then wants to appear on the general election ballot for a different division of the same circuit court. The AG distinguished two scenarios.

In the first scenario, the candidate wants to run for the other division as an independent or as a different party's nominee. The answer is no. Tenn. Code Ann. § 2-5-101(f) is Tennessee's sore-loser statute. § 2-5-101(f)(3) prohibits a primary loser from qualifying as an independent in the general election; § 2-5-101(f)(4) prohibits a primary candidate from appearing on the general election ballot "as the nominee of a different political party or as an independent." The Tennessee Supreme Court in Crowe v. Ferguson, 814 S.W.2d 721, 724 (Tenn. 1991), read these two provisions together to bar an unsuccessful primary candidate from a partisan general election as either an independent or as a candidate of a different party. That bar applies whether the primary loss and the general election are for the exact same office or different divisions of the same circuit court.

In the second scenario, the candidate wants to run in the general election for the other division as the same party's nominee. The answer is yes, under specific conditions. The other division must have held its own primary, and the party's nominee for that other division must have been removed for some reason (the AG does not specify the reason). At that point, party authorities can substitute the unsuccessful candidate as the nominee. The AG relies on Crowe's rationale: the integrity of the primary process is preserved because the candidate hasn't switched political affiliation and hasn't bypassed the primary results in the divisional race they originally entered. The candidate "abides by the results of the primary election" and enters a different race within the same party.

The plain language of § 2-5-101(f) supports this. Subsections (f)(3) and (f)(4) prohibit running as "an independent" or as the nominee of "a different political party." Neither provision prohibits running as the nominee of the same party in a different race.

The AG cites State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000), and State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998), for the rule that legislative intent comes from "the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction."

What this means for you

If you lost a primary for one circuit-court division

You have two routes to a different division. First, you can be the same party's nominee for a different division if (a) the other division had its own primary, and (b) the original nominee was later removed (death, disqualification, withdrawal). Coordinate with your party's executive committee, which handles substitution. Second, the route NOT available: you cannot run for a different division as an independent or as a different party's nominee. § 2-5-101(f)(3) and (f)(4) bar that.

If you are an election administrator processing a substitute nomination

Verify that the substitute candidate did not run in a primary for the destination division. If they ran in a primary for that destination division and lost, the sore-loser bar prevents substitution into the same race. If they ran in a primary for a different division of the same circuit court and lost, but want to run for the destination division as the same party's nominee, Crowe and the AG's analysis allow it.

If you are a Tennessee political party executive committee

You can substitute an unsuccessful primary candidate from one division as your party's nominee for a different division if the other division held a primary and the original nominee was removed. You cannot substitute someone who lost the primary for the same division and same race; that's the core of the sore-loser bar.

If you are advising a candidate considering judicial races

The party-affiliation question is decisive. If your client is considering switching parties or going independent after losing a primary, Crowe and § 2-5-101(f) bar that path for any partisan general-election ballot, including different divisions of the same circuit court. The same-party path remains open under specific circumstances.

Common questions

Q: I lost the Republican primary for Circuit Court Division I. Can I run in November for Division II as a Democrat?
A: No. § 2-5-101(f)(4) bars running in the general election as a "different political party" nominee after losing a primary. Switching to Democrat or independent is the heart of what Crowe prohibits.

Q: I lost the Republican primary for Division I. Can I run in November for Division II as a Republican?
A: Yes, under specific conditions. Division II must have held its own primary, and the Republican nominee for Division II must have been later removed (and your party committee has selected you as the substitute). The substitution must be permissible under your party's rules and election deadlines.

Q: What if Division II did not hold a primary?
A: The AG's analysis hinges on the existence of a Division II primary and the subsequent removal of that primary's winner. Without a primary, the substitution path the AG identifies does not directly fit, and the analysis would need to be reworked under different statutory provisions.

Q: What is a "non-partisan" race for purposes of Crowe?
A: Crowe itself involved candidates who lost a partisan primary and then wanted to run in a non-partisan general election for a different office. The Court allowed it because the candidates didn't switch parties to qualify for the non-partisan race. The opinion at issue here addresses different divisions within a partisan circuit-court race.

Q: Does this analysis apply to federal candidates?
A: § 2-5-101 is Tennessee's election code. For federal offices, federal law controls some aspects, and the sore-loser doctrine has different contours in different states. Tennessee's rule applies to Tennessee state and local elections.

Q: What if the original Division II nominee is removed after the qualifying deadline but before the general election?
A: The party's substitution authority and timing rules govern. Tenn. Code Ann. and Tennessee election regulations include specific procedures for filling vacancies in nominations; consult with the Coordinator of Elections about the specific timeline.

Background and statutory framework

Tennessee, like many states, has a "sore loser" law preventing a primary loser from circumventing the primary by running in the general election under a different label. The Tennessee Supreme Court in Crowe v. Ferguson, 814 S.W.2d 721, 724 (Tenn. 1991), described the purpose:

Allowing a defeated primary candidate to change political affiliation or to renounce all political affiliations and enter a race in which his former party has already chosen a candidate undermines the integrity of the primary process. For the primary election system to be an effective method of choosing candidates, the results of those elections must have some meaning.

The two operative provisions are:
- Tenn. Code Ann. § 2-5-101(f)(3): "No person defeated in a primary election or party caucus shall qualify as an independent for the general election."
- Tenn. Code Ann. § 2-5-101(f)(4): "No candidate in a party primary election or party caucus may appear on the ballot in a general election as the nominee of a different political party or as an independent."

Crowe held that these two provisions together "squarely prohibit an unsuccessful candidate in a party primary from appearing on the ballot in a subsequent partisan general election as an independent candidate or as a candidate of a different political party."

But Crowe also "intimates" that § 2-5-101(f) does not prohibit a same-party run for a different office where the candidate's affiliation has not changed and the integrity-of-primary purpose is not implicated. In Crowe itself, the candidates moved from a partisan primary loss into a non-partisan race for a different office. The Court found this acceptable because the candidates "abided by the results of the primary election" and didn't switch affiliation.

The AG extends Crowe's reasoning: an unsuccessful Division I primary candidate substituted as the same party's Division II nominee, after Division II's primary winner was removed, is similar to Crowe's scenario. The candidate didn't switch parties and didn't bypass any primary result they were on the ballot for. The integrity of both Division I's primary (which the candidate lost) and Division II's primary (which they did not enter) is preserved.

The plain-language argument: § 2-5-101(f)(3) and (f)(4) prohibit only "independent" or "different political party" appearances. They do not prohibit same-party appearances in a different race. State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000), and State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998), are cited for the rule that statutory text controls and courts cannot expand a statute beyond its plain terms.

Citations

Statutes:
- Tenn. Code Ann. § 2-5-101 (sore-loser law)
- Tenn. Code Ann. § 2-5-101(f) (sore-loser provisions)
- Tenn. Code Ann. § 2-5-101(f)(3) (no independent run after primary loss)
- Tenn. Code Ann. § 2-5-101(f)(4) (no different-party run after primary loss)

Cases:
- Crowe v. Ferguson, 814 S.W.2d 721, 723-25 (Tenn. 1991) (sore-loser scope)
- State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000) (statutory construction)
- State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998) (statutory construction)

Secondary authority:
- 26 Am.Jur.2d Elections § 265 (2022)
- 29 C.J.S. Elections § 281 (2022)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-09.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 3, 2022
Opinion No. 22-09
Ability of Unsuccessful Primary Candidate for One Division of Circuit Court to Appear on
General Election Ballot for a Different Division of Circuit Court

Question 1
Does Tenn. Code Ann. § 2-5-101 prohibit an unsuccessful primary candidate for one
division of a circuit court from appearing on the ballot in the general election for a different
division of the circuit court?

Opinion 1
Tennessee Code Annotated § 2-5-101(f) prohibits an unsuccessful primary candidate for
one division of a circuit court from appearing on the subsequent general election ballot for a
different division of the circuit court as an independent candidate or as a candidate of a different
political party.

Question 2
Does Tenn. Code Ann. § 2-5-101 prohibit an unsuccessful primary candidate for one
division of a circuit court from running as the same party's nominee in the general election for a
different division of the circuit court when a primary election has been conducted for that different
division of the circuit court and the party's nominee for that election was subsequently removed
as the party's nominee?

Opinion 2
No.

ANALYSIS

Tennessee, like many other states, has a "sore loser" law in its Election Code, Tenn. Code
Ann. § 2-5-101(f). See 26 Am.Jur.2d Elections § 265 (2022); 29 C.J.S. § 281 Elections (2022).
The primary purpose of a "sore loser" law is to preserve the integrity of the primary process:

Allowing a defeated primary candidate to change political affiliation or to renounce
all political affiliations and enter a race in which his former party has already
chosen a candidate undermines the integrity of the primary process. For the
primary election system to be an effective method of choosing candidates, the
results of those elections must have some meaning.

Crowe v. Ferguson, 814 S.W.2d 721, 724 (Tenn. 1991).

Tennessee's sore-loser law provides that "[n]o person defeated in a primary election or
party caucus shall qualify as an independent for the general election," Tenn. Code Ann. § 2-5-
101(f)(3), and "[n]o candidate in a party primary election or party caucus may appear on the ballot
in a general election as the nominee of a different political party or as an independent," Tenn. Code
Ann. § 2-5-101(f)(4).

In Crowe, the Tennessee Supreme Court found that these two statutory provisions, Tenn.
Code Ann. §§ 2-5-101(f)(3) and (4), squarely prohibit "an unsuccessful candidate in a party
primary from appearing on the ballot in a subsequent partisan general election as an independent
candidate or as a candidate of a different political party." Crowe, 814 S.W.2d at 724. Accordingly,
an unsuccessful primary candidate for one division of a circuit court is prohibited from appearing
on the subsequent general election ballot for a different division of the circuit court as an
independent candidate or as a candidate of a different political party.

The Crowe decision, though, intimates that Tenn. Code Ann. § 2-5-101(f) would not
prohibit an unsuccessful primary candidate for one division of a circuit court from running as the
same party's nominee in the general election for a different division of the circuit court when a
primary election for that different division of the circuit court had been conducted and the party's
nominee was subsequently removed as the party's nominee.

At issue in Crowe was whether Tenn. Code Ann. § 2-5-101(f) prohibited two persons who
were unsuccessful candidates in a party primary from subsequently running in a non-partisan
general election for a different office. Id. at 723. The Court found that the concerns of the statute
were not raised in this scenario. Id. at 724. The Court reasoned that the entry of the defeated
primary candidates in the subsequent non-partisan race did not compromise the integrity of the
primary election because the candidates abided by the results of the primary election and entered
the non-partisan race without switching their political affiliation to qualify for the race. Id. at 724-
25. Thus, the intent of Tenn. Code Ann. § 2-5-101(f) had been satisfied. Id. at 725.

Similarly, the integrity of the primary election would not be compromised by allowing an
unsuccessful primary candidate for one division of a circuit court to run as the same party's
nominee in the general election for a different division of the circuit court when that different
division of the circuit court had previously conducted a primary election and the party's nominee
was subsequently removed as the party's nominee. As in Crowe, the candidate abides by the
results of the primary election and enters the general election as a nominee for a different office
without switching political affiliation to qualify for the race. The integrity of the primary system
is preserved.

Moreover, the plain language of Tenn. Code Ann. § 2-5-101(f) supports the conclusion that
the appearance of such a candidate on a general election ballot for a different division of the circuit
court is permitted. Sections 2-5-101(f)(3) and (f)(4) prohibit an unsuccessful candidate in a
primary election from appearing on the general election ballot as "an independent" or as the
nominee or candidate "of a different political party." See Crowe, 814 S.W.2d at 724. Neither § 2-
5-101(f)(3) nor § 2-5-101(f)(4) forbids a defeated primary candidate from appearing on a general
election ballot in a different race as the nominee of the candidate's same party. It is well
established that courts are to ascertain legislative intent "from the natural and ordinary meaning of
the statutory language within the context of the entire statute without any forced or subtle
construction that would extend or limit the statute's meaning." State v. Fleming, 19 S.W.3d 195,
197 (Tenn. 2000); State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998) (same).

In sum, Tenn. Code Ann. § 2-5-101(f) prohibits an unsuccessful primary candidate for one
division of a circuit court from appearing on the subsequent general election ballot for a different
division of the circuit court as an independent candidate or as a candidate of a different political
party. But Tenn. Code Ann. § 2-5-101(f) does not prohibit an unsuccessful primary candidate for
one division of a circuit court from running as the same party's nominee in the general election for
a different division of the circuit court when a primary election for that different division of the
circuit court had been conducted and then the party's nominee was subsequently removed as the
party's nominee.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Esther Helton
State Representative
Rep. John Lewis Way N.
Cordell Hull Building, Suite 502
Nashville, Tennessee 37243