After the Civil War, Southern politicians fearful of losing their grip on power decried the influx of “carpetbaggers” from the North.
Tennessee legislators today seem to share similar fears.
On April 13, Tennessee Governor. Republican Bill Lee, who is also a Republican, sent SB 2616 back to the legislature. This means that it became law even though he did not sign it. The bill requires that any candidate for Congress must have voted in three previous statewide general election.
Given that the law is patently unconstitutional under Article I of the U.S. Constitution, you may wonder what suddenly inspired the Tennessee General Assembly to add this requirement to the state’s long-standing rules of eligibility.
Morgan Ortagus seems the best answer to this question.
One of 12 Republican primary candidates running in Tennessee’s 5ThRep. Jim Cooper, a Democratic Retired Representative, will be replaced by a Congressional District. OrtagusRubicon Founders, a firm that invests in health care, moved from Washington, D.C. to Nashville in the early 2021.
Her candidacy would be immediately approved under the new law disqualified.
Ortagus spent two years in the Trump administration as a spokesperson at the U.S. State Department before moving to Nashville. The former president endorsed Ortagus before she announced her candidacy. unexpected blowback from some of Trump’s own supporters, including Rep. Matt Gaetz, R-Fla., and Donald Trump Jr.
This intraparty ire was almost certainly the spark that ignited SB 2616.
Whatever one’s opinion of any candidate in the primaries or general elections (and we don’t make any endorsements here), the fact of the matter is that no state has constitutional authority to impose a residency or other requirement on those who want to serve in the U.S. House and Senate.
Article I, Section II of the Constitution provides that “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”
That’s it.
These are the only requirements for a candidate for the U.S. House. While it might seem reasonable to some, imposing a state residency condition may not be so. Others may view it as biased against newcomers. But one’s opinion of the fairness or unfairness of such a requirement doesn’t really matter. The U.S. Supreme Court ruled that such additional qualifications imposed on states are unconstitutional.
In 1995, the high court made this clear. U.S. Term Limits v. Thornton. Arkansas’ legislature passed a law that prohibited anyone from being listed on the ballot for a congressional slot if they had served at least three terms in the U.S. House of Representatives. The court concluded that states don’t have the power to impose additional qualifications “other than those set forth in the text of the Constitution.”
The justices rejected Arkansas’ federalism argument that the 10th Amendment reserved to the states the right to impose candidacy requirements, adding that the “power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States.”
The court cited a long list prior decisions specifically striking down district residence requirements in reaching its decision. State ex rel. Chavez v. Evans: “The constitutional qualifications for membership in the lower house of Congress exclude all other qualifications, and state law can neither add to, nor subtract from them.”
You don’t have to be a constitutional expert to see that SB 2616 will not survive a legal challenge.
And in fact, three 5th District residents filed a lawsuitThe state was not able to prevail. The last time Tennessee was subject to a residency restriction was when James Blumstein, a Vanderbilt law professor, sued the state for requiring him to live in the state one year before he could vote. In Tennessee, the result was not good. Dunn v. Blumstein (1971).
Article I of the Constitution defining the qualifications of a member of Congress served only one purpose: to preserve the right to selection for the people and not for any government or state.
No matter what members of the legislature might think about any candidate, the decision as to who can best represent the interests of a given congressional district should be—and will be—left to the voters who live there.
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