Is Tennessee's 1949 private act creating the DeKalb County Democratic Party Executive Committee still enforceable today?

Subject

Opinion No. 13-90, Enforceability of Private Act Creating DeKalb County Democratic Party Executive Committee, November 19, 2013

Plain-English summary

Rep. David A. Shepard asked whether a 1949 private act (as amended in 1972) creating the DeKalb County Democratic Party Executive Committee was still enforceable. The Act required the Committee to have 40 members elected on the same ballot as the State Democratic Primary, from 19 designated voting precincts, with members serving two-year terms. The opinion request noted that the original precinct boundaries could no longer be identified, no required elections had been held in recent years, and the Act doesn't require reapportionment as the county's population shifts.

The AG concluded the Act is unenforceable. The U.S. Supreme Court has held that "[a] political party's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the [United States] Constitution." Tashjian v. Republican Party of Conn., 479 U.S. 208, 224 (1986). In Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989), the Court struck down California statutes restricting the organization, composition, terms, and leadership of state central political party committees. Such restrictions burden constitutionally protected associational rights and can only be sustained by a compelling state interest.

The 1949 Act fixed the size, election method, electoral district, and term of office for a county party committee, intruding on the Democratic Party's discretion. The AG could identify no compelling state interest "necessary to the integrity of the electoral process" that the restrictions served. Therefore the Act unconstitutionally burdens the Tennessee Democratic Party's and its DeKalb County members' associational rights.

Currency note

This opinion was issued in 2013. 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.

The First Amendment associational-rights doctrine has continued to develop, particularly around political parties' internal governance, ballot access, and primary rules. Other Tennessee private acts creating county-level party structures may face similar challenges. Anyone analyzing a current issue under such an act should review current case law.

Background and statutory framework

The Act in question. Section 1 of 1949 Tenn. Priv. Acts ch. 771, as amended by 1972 Tenn. Priv. Acts ch. 374, created in DeKalb County a Democratic Party Executive Committee consisting of 40 members, to be elected along with the State Democratic Primary Election, from 19 voting precincts. Section 2 made this committee "the general governing and controlling body for the management of the party affairs of the Democratic party within said County."

First Amendment associational rights for parties. Tashjian v. Republican Party of Conn., 479 U.S. 208, 224 (1986): a political party's determination of its own boundaries and structure is constitutionally protected. Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989): California statutes restricting state central committee organization, composition, leadership terms, and geographic rotation requirements unconstitutionally burdened these rights. The state had to show a compelling interest in regulating internal party governance to support such restrictions, and California had not. Eu, 489 U.S. at 230-33.

Common questions

Why does the Constitution protect a political party's internal structure?

The First Amendment protects freedom of association. Political parties are voluntary associations of citizens organizing around shared political views. A state that dictates a party's internal structure (size, membership, leadership terms, election mechanics) effectively determines how the party functions and what it can say. That's an associational burden the state can justify only with a compelling interest.

What would have been a compelling state interest here?

The Supreme Court has accepted as compelling, e.g., preventing fraud, maintaining the orderly conduct of elections, and certain antidiscrimination concerns. None of these clearly applies to a county party committee's internal structure. The Tennessee AG didn't identify any compelling interest in the DeKalb Act's specific rules.

Does this mean all Tennessee private acts about county party committees are unconstitutional?

Likely most are, on the same reasoning. Each such act would need its own analysis, but the basic principle from Eu is broadly applicable. A state cannot dictate how a private association governs itself absent a compelling justification.

What happens in practice when an act is "unenforceable"?

The state cannot enforce the act through criminal or civil sanctions, and courts will not give effect to its requirements. As a practical matter, the Democratic Party in DeKalb County is free to organize its county executive committee however it chooses, by whatever method its state party rules prescribe.

Can the Tennessee Election Commission run a party committee election as the act describes?

The election commission's role is to administer elections lawfully called for. If the act is unconstitutional, there is no lawful basis for the election commission to administer the structured election the act envisions. The commission would have no authority to run the election absent a separate lawful basis.

Citations

1949 Tenn. Priv. Acts ch. 771; 1972 Tenn. Priv. Acts ch. 374. Cases: Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-090.pdf

Original opinion text

November 19, 2013

Opinion No. 13-90

Enforceability of Private Act Creating DeKalb County Democratic Party Executive Committee

QUESTION

Is 1949 Tenn. Priv. Acts, ch. 771, as amended by 1972 Tenn. Priv. Acts, ch. 374 (the "Act"), creating the DeKalb County Democratic Party Executive Committee, enforceable?

OPINION

No, this statute unconstitutionally burdens the associational rights of the Tennessee Democratic Party and its members in DeKalb County and therefore is unenforceable.

ANALYSIS

Section 1 of Chapter 771 of the 1949 Tennessee Private Acts, as amended by Chapter 374 of the 1972 Tennessee Private Acts, provides in relevant part:

That there is hereby created and established in DeKalb County, Tennessee, a Democratic Party Executive Committee, consisting of forty (40) members, to be elected along with, and on the same ballot, as the State Democratic Primary Election is held in August, 1972, and each two (2) years thereafter, from the nineteen voting precincts in DeKalb County, Tennessee, the designation of the precincts, and the number of Executive Committeemen or Committeewomen to be elected from each such precinct being as follows [listing nineteen precincts and the number of members to be elected from each]:

Said committeemen or committeewomen shall qualify to have their names placed upon the official ballot in the said August, 1972 election by filing a petition in the time, and manner, as provided by general law for candidates to qualify in the State Primary Elections to be held in August of 1972, and succeeding state elections, and each of said committeemen and/or committeewomen shall serve for a period of two (2) years from September 1, 1972, and until their successors are elected. Each subsequent election for a two-year period shall be held each two years in the same way and manner as the first election hereinbefore provided, and qualifications, and the way and manner of qualifying to run as candidates in said election, shall likewise be the same as for the first two-year period.

The members of the Democratic Party Executive Committee who are now serving under the provisions of Chapter No. 771 of the Private Acts of 1949 shall continue to hold office, and serve in this capacity, until September 1, 1972, following the August, 1972 election of new members under this Act, and/or until the new members are qualified.

Section 2 of the Act provides:

That said Democratic Party Executive Committee shall be the general governing and controlling body for the management of the party affairs of the Democratic party within said County, and shall be vested with all the powers and operated with all the duties now prescribed by law for such Democratic Executive Committees.

The opinion request advises that the boundaries of the precincts listed in the Act can no longer be ascertained and that no required election has been held in recent years. Further, the request notes that the Act does not require reapportionment as the DeKalb County population changes. The request asks whether, in light of these problems, the Act is enforceable.

A political party's "determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the [United States] Constitution." Tashjian v. Republican Party of Conn., 479 U.S. 208, 224 (1986). In Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989), the United States Supreme Court found unconstitutional several California statutes restricting the organization and composition of state central political party committees, the limits on the term of office for the state central committee chair, and the requirement that the chair rotate between residents of northern and southern California. Eu, 489 U.S. at 229-33. The Court found that each of these restrictions limited a political party's discretion in how to organize itself, conduct its affairs, and select its leaders. Id. at 230. The Court found that because these were constitutionally protected associational rights, the State of California's restrictions could only be upheld if they served a compelling state interest. Id. at 231. The Court found that California had not shown that its "regulation of internal party governance is necessary to the integrity of the electoral process." Id. at 232. The Court therefore rejected California's claim that the restrictions served a compelling interest in the democratic management of the political party's internal affairs or in limiting regional friction. Id. at 232-33.

Under the Act, the General Assembly directed that the DeKalb County Democratic Executive Committee have forty members elected in the democratic primary from a list of precincts, some of which apparently no longer exist. Members must be elected to two-year terms. The Act thus sets the size of a single county executive party committee, the method by which its members must be elected, and the terms they must serve. The Act clearly imposes restrictions limiting the Tennessee Democratic Party's discretion in how to organize itself, conduct its own affairs, and select its leaders in DeKalb County. This Office is unable to identify any compelling State interest "necessary to the integrity of the electoral process" that these restrictions serve. See Eu, 489 U.S. at 232. For this reason, the Act unconstitutionally burdens the associational rights of the Tennessee Democratic Party and its members in DeKalb County and is unenforceable.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:

The Honorable David A. Shepard
State Representative
34 Legislative Plaza
Nashville, Tennessee 37243-0169