What residency and voter-registration rules apply to candidates for sheriff in Tennessee?

Plain-English summary

Representative Judd Matheny asked the AG to parse Tenn. Code Ann. § 8-8-102(a)(3), which sets eligibility for sheriff candidates. The statute requires a candidate to "[b]e a qualified voter of the county and a resident of the county for one (1) full year prior to the date of the qualifying deadline for running as a candidate for sheriff."

The AG read this as two separate requirements:

Qualified voter of the county. The candidate must satisfy the qualifications in Tenn. Code Ann. § 2-2-102 (U.S. citizen, 18 or older, Tennessee resident, not disqualified). But the candidate does not have to be registered to vote. Under Halbert v. Shelby Cty. Elec. Comm'n, 31 S.W.3d 246 (Tenn. 2000), and the 1918 Trammel v. Griffin decision, "qualified voter" means someone who possesses the legal qualifications to vote, not someone who has gone through the act of registration. Registration is "the regulation of the exercise of the right," not a qualification.

One-year county residency before the qualifying deadline. Added by 2011 Tenn. Pub. Acts ch. 370, § 1. This is a durational residency requirement. The AG explained that durational residency requirements for state and local offices are generally constitutional under rational basis review. The right to be a candidate is not a fundamental right, so the requirement need only be reasonable. Long-standing Tennessee Supreme Court and federal precedent (Hatcher v. Bell, Sununu v. Stark, Chimento v. Stark) upholds one-year (and longer) durational residency requirements. The state's interest in ensuring candidates have been part of the community long enough for voters to evaluate them and for the candidate to know the local customs supports the rule.

Currency note

This opinion was issued in 2017. 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 mentioned here.

Background and statutory framework

The Tennessee Constitution at Art. VII, § 1 says the "qualified voters of each county" elect a sheriff and authorizes the legislature to prescribe the office's qualifications and duties. § 8-8-102(a)(3) is one of the legislature's implementing rules.

The "qualified voter" requirement. § 2-2-102 defines a qualified voter as a U.S. citizen, 18 or older, who is a Tennessee resident and not otherwise disqualified. The Halbert decision distinguished between possessing voter qualifications and being registered to vote. Registration is procedural; qualification is substantive. A candidate must meet the substantive qualifications, but the AG concluded the statute does not require registration.

The one-year residency requirement. Added in 2011. Tennessee has many similar durational residency rules: Art. II, § 9 (one year in county for state representative), Art. II, § 10 (one year in county or district for state senator), Art. VI, § 4 (one year in circuit or district for inferior court judge), Tenn. Code Ann. § 8-14-102(b)(1)(A) (one year in judicial district for district public defender). Federal offices have analogous (state-residency) requirements under the U.S. Constitution.

Constitutionality. Federal and Tennessee precedent consistently upholds durational residency requirements for state and local office. Hatcher v. Bell (Tenn. 1974) upheld a five-year requirement for judges. Sununu v. Stark and Chimento v. Stark summarily affirmed seven-year requirements for state senator and governor. The state's interest in informed voters and culturally connected candidates supports the modest one-year requirement. The right to candidacy is not fundamental (Molina-Crespo v. U.S. Merit Sys. Prot. Bd.; Civil Serv. Merit Bd. v. Burson), so rational basis review applies.

Common questions

Q: Does a sheriff candidate need to be a registered voter?
A: According to this opinion, no. The candidate must qualify to vote (citizen, 18+, Tennessee resident, not disqualified) but does not have to be registered.

Q: How long does a candidate need to have lived in the county?
A: One full year before the qualifying deadline. Tenn. Code Ann. § 8-8-102(a)(3) added this durational requirement in 2011.

Q: Is the one-year residency requirement constitutional?
A: Yes. The AG cited extensive federal and Tennessee precedent upholding durational residency requirements for elected office, including the Tennessee Supreme Court's Hatcher v. Bell (upholding a five-year requirement for judges).

Q: What if a candidate moves to the county shortly before filing?
A: Under § 8-8-102(a)(3), the candidate must have been a resident for a full year before the qualifying deadline. A late move would disqualify the candidate.

Q: Where does the constitutional authority for the residency requirement come from?
A: Tenn. Const. art. VII, § 1 authorizes the legislature to prescribe a sheriff's qualifications and duties. The General Assembly enacted § 8-8-102 under that authority.

Citations and references

Constitution and statutes:

• Tenn. Const. art. VII, § 1; art. II, §§ 9, 10; art. VI, § 4
• Tenn. Code Ann. § 8-8-102(a)(3)
• Tenn. Code Ann. § 2-2-102
• Tenn. Code Ann. § 8-14-102(b)(1)(A)

Cases (selected):

• Halbert v. Shelby Cty. Elec. Comm'n, 31 S.W.3d 246 (Tenn. 2000)
• Trammel v. Griffin, 141 Tenn. 139, 207 S.W. 726 (1918)
• Hatcher v. Bell, 521 S.W.2d 799 (Tenn. 1974)
• Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725 (Tenn. 1991)
• Boyce v. Tenn. Peace Officer Standards & Training Comm'n, 354 S.W.3d 737 (Tenn. Ct. App. 2011)
• Clements v. Fashing, 457 U.S. 957 (1982)
• Citizens for Legis. Choice v. Miller, 144 F.3d 916 (6th Cir. 1998)

Related AG opinions:

• Op. Tenn. Att'y Gen. No. 02-58 (May 3, 2002)
• Op. Tenn. Att'y Gen. No. 99-77 (Apr. 5, 1999)
• Op. Tenn. Att'y Gen. No. 15-72 (Nov. 3, 2015)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-036.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 30, 2017
Opinion No. 17-36
Residency and Voter Registration Requirements for Sheriff Candidates

Question
What residency and voter registration requirements does Tenn. Code Ann. § 8-8-102(a)(3) impose on potential candidates for sheriff?

Opinion
Tennessee Code Annotated § 8-8-102(a)(3) imposes two requirements on potential candidates who seek to qualify for election or appointment to the office of sheriff. First, the candidate must be a "qualified voter of the county," which requires the candidate to satisfy the qualifications in Tenn. Code Ann. § 2-2-102, but does not require the candidate to be registered to vote. Second, the candidate must have been a "resident of the county for one (1) full year" prior to the qualification deadline.

ANALYSIS

Article VII, § 1 of the Tennessee Constitution provides that the "qualified voters of each county" shall elect a sheriff and directs that a sheriff's "qualifications and duties" be "prescribed by the General Assembly." See Boyce v. Tenn. Peace Officer Standards & Training Comm'n, 354 S.W.3d 737, 741 (Tenn. Ct. App. 2011). Pursuant to this provision, the General Assembly enacted Tennessee Code Annotated § 8-8-102, subsection (a) of which enumerates the requirements an individual must satisfy "to qualify for election or appointment to the office of sheriff."

The General Assembly has prescribed that a candidate for sheriff must "[b]e a qualified voter of the county and a resident of the county for one (1) full year prior to the date of the qualifying deadline for running as a candidate for sheriff." Tenn. Code Ann. § 8-8-102(a)(3). The text and history of § 8-8-102(a)(3) demonstrate that this provision establishes two separate requirements that a candidate for sheriff must satisfy.

First, a candidate for sheriff must "[b]e a qualified voter of the county." This mandates that a candidate for sheriff satisfy the criteria in Tenn. Code Ann. § 2-2-102 but does not require a candidate to be registered to vote. A "qualified voter" is defined in the Tennessee Code as a "citizen of the United States eighteen (18) years or older who is a resident of this state," unless the individual is disqualified by other provisions of the Code. Tenn. Code Ann. § 2-2-102; see also Halbert v. Shelby Cty. Elec. Comm'n, 31 S.W.3d 246, 249 n.5 (Tenn. 2000).

The candidate does not, however, have to be registered as a voter in the county to be a "qualified voter of the county" within the meaning of § 8-8-102(a)(3). In Halbert, the Tennessee Supreme Court held that the term "resident voter" as used in the charter of the Memphis City School Board required a candidate only "to possess the legal qualifications which would entitle him or her to vote in the election if registered" and did not require the candidate to be registered to vote. Halbert, 31 S.W.3d at 249. Relying on its 1918 decision in Trammel v. Griffin, 141 Tenn. 139, 207 S.W. 726, the Court explained that "registration laws do not pertain to the 'qualifications' that citizens are required to possess before being 'entitled to vote' but rather to the regulation of the exercise of the right." Halbert, 31 S.W.3d at 248.

Second, § 8-8-102(a)(3) requires that a candidate for sheriff have been a "resident of the county" for one full year before the qualification deadline. This durational residency requirement does not violate any provision of the Constitution and must be satisfied by potential candidates for sheriff. In 2011, the General Assembly expanded the residency requirement by adding a durational component. See 2011 Tenn. Pub. Acts ch. 370, § 1.

This durational residency requirement is similar to other provisions in the Tennessee Constitution and Code requiring some length of residence in a particular district or county before an individual is eligible for an elected office. See, e.g., Tenn. Const. art. II, § 9; art. II, § 10; art. VI, § 4; Tenn. Code Ann. § 8-14-102(b)(1)(A). And the U.S. Constitution imposes similar durational residency requirements on candidates for Representative, Senator, and President.

The requirement in § 8-8-102(a)(3) that a candidate for sheriff have been a resident of the county for one year does not raise any constitutional concerns. Similar length durational residency requirements imposed on candidates for elected state office have been consistently upheld by courts against constitutional challenges. See, e.g., Sununu v. Stark, 420 U.S. 958 (1975); Chimento v. Stark, 414 U.S. 802; City of Akron v. Bell, 660 F.2d 166 (6th Cir. 1981); Hatcher v. Bell, 521 S.W.2d 799 (Tenn. 1974); Lewis v. Gibbons, 80 S.W.3d 461 (Mo. 2002); State ex rel. Brown v. Summit Cty. Bd. of Elec., 545 N.E.2d 1256 (Ohio 1989).

Unlike an individual's right to vote, the "right of candidacy is not a fundamental right." Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 659 (6th Cir. 2008); see also Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725, 733 (Tenn. 1991). As a result, the "existence of barriers to a candidate's access to the ballot 'does not of itself compel close scrutiny.'" Clements v. Fashing, 457 U.S. 957, 963 (1982).

Durational residency requirements only "minimally infringe[] upon the rights of voters to participate in the election process" because they "do[] not unfairly burden a discrete minority group of voters" and are "totally unrelated to the status of voters." Antonio v. Kirkpatrick, 579 F.2d 1147, 1149 (8th Cir. 1978). Nor do they foreclose an individual from ever being a candidate; the "candidacy is only delayed -- not barred." Howlett v. Salish & Kootenai Tribes, 529 F.2d 233, 244 (9th Cir. 1976).

Durational residency requirements are thus "reasonable, nondiscriminatory restrictions" that are subject only to rational basis review under the balancing test. Citizens for Legis. Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998). Here, the State's interests in imposing a durational residency requirement on candidates for sheriff are sufficient to justify any incidental impact the requirement may have on voters' rights. The requirement that an individual be a resident of the county for one year before being eligible to be elected as its sheriff furthers the State's important interests in providing "the voters the opportunity to become acquainted with the candidate's ability, character, personality and reputation" and in "ensur[ing] that the candidate have the opportunity to know the customs and the mores of the people." Hatcher, 521 S.W.2d at 805. The requirement represents the State's sovereign choice about the qualifications its sheriffs must possess to best serve their county and imposes no significant burdens on voters' fundamental rights. Accordingly, the one-year requirement is consistent with the dictates of the Constitution, and candidates for sheriff must satisfy it before being eligible for election or appointment to the office.

In sum, Tennessee Code Annotated § 8-8-102(a)(3) imposes two requirements on potential candidates who seek to qualify for election or appointment to the office of sheriff. First, the candidate must be a "qualified voter of the county," which requires the candidate to satisfy the qualifications in Tenn. Code Ann. § 2-2-102, but does not require the candidate to be registered to vote. Second, the candidate must have been a "resident of the county for one (1) full year" prior to the qualification deadline.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Judd Matheny
State Representative
215 War Memorial Building
Nashville, Tennessee 37243