Yes, the expelled Tennessee lawmakers could return to their seats

UPDATE: On April 10, the Metro Nashville council voted 36-0 to appoint Justin Jones as his own interim successor, suspending council rules to allow Jones to retake his seat immediately instead of undergoing the standard four-week hiring process for vacancies.

On April 12, the Shelby County Board of Commissioners voted 7-0 to appoint Justin Pearson as his own interim successor, likewise suspending county rules to send Pearson back immediately instead of waiting the usual 30 days. 

On August 3, a special election was held. Both Jones and Pearson won, and will retain their seats for the entirety of their original term.

State lawmakers in Tennessee took unprecedented action on April 6 when they expelled two members of the State House of Representatives for breach of decorum.

Rep. Justin Jones (D-Nashville) and Rep. Justin Pearson (D-Memphis) led protests at the state capitol calling for gun control following a deadly school shooting in Nashville a week prior. The state’s Republican supermajority accused them of violating House rules, and used a rarely-invoked provision of the state constitution to remove them from office.

A third member, Rep. Gloria Johnson (D-Knoxville), also faced an expulsion vote but it fell short of the required two-thirds majority.

The votes leave two vacancies in the Tennessee House of Representatives, prompting many people to wonder how they will be filled. Some suggested it’s possible the expelled members could in fact wind up back in their seats, potentially in a matter of days.

THE QUESTION

Can the expelled Tennessee lawmakers be reappointed or re-elected to their seats?

THE SOURCES

• Tennessee state constitution
• Council of the Metropolitan Government of Nashville and Davidson County, Rules of Procedure
• Shelby County Board of Commissioners, Permanent Rules of Order
• Tennessee Secretary of State

THE ANSWER

Yes, the expelled Tennessee lawmakers could be reappointed or re-elected to their seats.

WHAT WE FOUND

By law, vacancies in the Tennessee state legislature are filled temporarily by the county government the district represents, until a special election can be held. Nothing prevents the counties from appointing the expelled member as their own interim replacement, or the member from running in the subsequent special election.

Article II, Section 12 of the Tennessee state constitution allows the state house or the state senate to expel a member with a two-thirds majority vote.

The power has been used only a few times in the state’s history, usually related to criminal conduct. The last example was in 2021 when state Sen. Katrina Robinson (D-Memphis) was removed after being convicted on federal wire fraud charges.

When a vacancy is created, the constitutional procedure to fill it depends on how soon it is until the next general election. For Tennessee, that’s November of 2024, meaning more than a year away.

Article II, Section 15 states that a special election must be held to determine who finishes the expelled members’ terms. Until that election can be held, “The legislative body of the replaced legislator's county of residence at the time of his or her election may elect an interim successor to serve until the election.”

Since the two expelled members are from different parts of the state, the legislative body and therefore the impending appointment process varies slightly.

Rep. Justin Jones

Rep. Jones is from Nashville, which is part of Davidson County. In the 1960s the city and county governments merged into one to form the current governing body: the Metropolitan Government of Nashville and Davidson County. The legislative authority is the Metro Council.

Metro Council’s Rules of Procedure lay out a detailed process for filling vacancies. It requires first a notice from the Vice Mayor, then nominations from council members, followed by formal applications submitted by candidates, an interview process, and finally a vote by the council requiring a simple majority to fill the seat.

The rules state this process should take four weeks, though rules can be suspended as long as two or more council members don’t object.

Vice Mayor Jim Shulman has already called a special meeting for Monday, April 10. The meeting notice said, “if determined by the Council, [we will] vote on the election of an interim successor.”

There are 40 members of the Metro Council. The Tennessean reported Friday that at least 29 had already publicly declared their support for re-appointing Jones to his seat until the special election, which has not yet been set.

Rep. Justin Pearson

Rep. Pearson is from Memphis, which is part of Shelby County. The legislative body is the Shelby County Board of Commissioners.

Like Metro Nashville, Shelby County lays out a process for appointing vacancies in its Permanent Rules of Order. It requires applicants to fill out an extensive form, complete interviews with commissioners, and then finally receive approval from a simple majority vote of the commission.

The rules also state “No vote shall be taken less than 30 days after notice of the vacancy is transmitted to the Members of the Commission.”

Rules can be suspended with a two-thirds vote of the commissioners.

Shelby County is rare in that there is recent precedent for filling legislative vacancies, having done so in 2021 following the expulsion of Rep. Robinson.

There are 13 commissioners in Shelby County; nine of them are Democrats. The Commercial Appeal reported that two Democratic members had already come out in favor of reappointing Pearson to his seat, and one Republican member had stated his opposition. 

On Sunday, Chairman Mickell Lowery announced the board would hold a special meeting to consider filling the vacancy on Wednesday, April 12.

Tennessee state law

Nothing in the rules of procedure or charters for either county disqualifies expelled members from being eligible for reappointment, or from running for reelection.

Similarly, state law sets only a few restrictions on who can hold elected office, and expulsion is not one of them.

In fact, the constitutional provision which outlines the expulsion process appears to predict the event that a member would return to office later, because it states a member cannot be expelled “a second time for the same offense.”

This means if Jones or Pearson are reappointed and/or re-elected to their seats in the state house, the Republican supermajority could not simply remove them again by citing the protests that sparked the expulsion.

Republican state leaders have reportedly said they would work with Jones or Pearson if their constituents voted to return them to office, or were reappointed by their counties.