Little-Used Law At Root Of Davis' Recount Effort

BY TIMOTHY CAMA
BRISTOL HERALD COURIER

If U.S. Rep. David Davis decides to officially contest the outcome of last week’s Republican primary, he’d have to invoke a rarely used law that is extremely difficult to enforce.

Furthermore, Tennessee GOP party officials might have to throw away the entire primary should Davis prove the law was violated and the result caused him to unfairly lose to Johnson City Mayor Phil Roe.

Davis, R-Tenn., has hired a national law firm to look into possible voting irregularities, including whether Democrats voted in the Republican primary, according to published reports.

The congressman and his representatives could not be reached for comment Tuesday. He and his staff did not respond to multiple messages via telephone, e-mail and fax to Davis’ Washington and Blountville offices.

According to published reports, the freshman congressman cited Tennessee election law, which states voters who aren’t party members are ineligible to vote in that party’s primary. He contends Democrats voted in the Republican primary and claims such votes improperly influenced the results.

Tennessee, however, has an open primary, meaning party affiliation is not a prerequisite to vote.

In Tennessee primary elections, voters are asked at the polls to choose which primary they want to participate; they either are handed the appropriate ballot or shown to the appropriate electronic voting machine.

Davis lost the Aug. 7 primary by 460 votes but has not conceded. On Monday, state election officials are scheduled to certify the election results.

Tennessee Code 2-7-115(b) states that a voter is only eligible to vote in a primary if he or she “is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote,” and that the voter “declares allegiance to the political party.”

Poll watchers may challenge a person’s right to vote at a polling place, said Gena Frye, Sullivan County administrator of elections.

When the question is raised, two election officials judge the merits of the challenge, including the voter’s history.

Records at the polling place show the voter’s past election participation, including in which primaries he or she has cast votes. Depending on the voting pattern, he or she theoretically could be deemed ineligible to vote.

“This usually happens at the polling place, on the primary day,” Frye said.

But it rarely happens.

That’s because a voter may change his or her allegiance at any time, and because voters are not registered by party, said Brook Thompson, state coordinator of elections.

“It’s very rare. Extraordinarily rare,” he said, adding in the 13 years he has worked for the state, he’s known it to happen “around three times.”

Thompson also said he has never seen voters’ rights challenged after an election. In fact, in Davis’ case, it literally would be impossible, he said.

The executive committee of the Tennessee Republican Party also would have to hear Davis’ challenge and decide how to proceed, said Thompson, adding there’s no time for another primary. Instead, the GOP executive committee would have to find a way to appoint a nominee before the November election without another primary contest.

The state GOP’s legal counsel has been in contact with Davis’ attorneys, said Randy Stamps, state director of the party. He confirmed that Davis is discussing a challenge that would be based on “voting irregularities.”

Challenges based on non-party voting have not come to the executive committee since at least 2003, Stamp said. If Davis could convince the committee that enough voters were ineligible to invalidate Roe’s victory, the GOP could order a recount.

During the recount process, Stamp said, questions about voter eligibility could be raised.

“It’s a very speculative process,” he said

Furthermore, since all ballots are secret, it would be impossible to link voters to certain ballots.

The Tennessee Democratic Party denies any effort to encourage cross voting, said Wade Munday, communications director for the party.

“Any number of independent voters may have voted for either party,” Munday said, but he doubted that any Democratic voters voted in any Republican races.

Tennessee might be a Democratic state this year, said Munday, so he doesn’t understand why any Democrat would choose to vote in the other primary.

Roe disagreed that any “voting irregularities” happened.

“This was one of the smoothest elections I’ve ever seen,” he said, adding that he personally lost to Davis in the 2006 primary by about 500 votes.

“And after that, I called him up and congratulated him,” Roe said.

As for non-party members voting, it was an open primary, he noted.

“Thank God for secret ballots,” he said. “For all I know, Democrats could have voted for Davis.”

TIMOTHY CAMA is an intern with the Herald Courier and can be reached at tcama@bristolnews.com or (276) 669-2181.