Secretary of State Tre Hargett said Monday afternoon that his office would not approve a ballot measure in Memphis that would call for a gun control referendum proposed by the Memphis City Council.
Hargett's response comes just hours after Tennessee Republican leaders threatened to withhold sales tax revenue from Memphis if the measure comes to a vote in November.
“Common sense dictates that local governments cannot override state law to give a 12-year-old a driver's license, nor can they override other state laws,” Hargett said in an emailed statement to The Commercial Appeal. “Memphis has no authority to circumvent state law. Our office will not approve a ballot that contains items that have already been preempted by state law.”
Hargett also notified the Shelby County Election Commission on Monday that the referendum could not be put to a vote because “the General Assembly's clear statements in these state laws manifestly override the referendum proposed in Ordinance No. 5908 and leave the City of Memphis with no authority to propose charter changes in these regulatory areas,” Hargett wrote in a letter obtained by The Commercial Appeal.
The letter cites two state laws that the Secretary of State says prevent the referendum from coming to a vote. One law states that “the General Assembly preempts the entire field of regulation of firearms, ammunition, or components of firearms or ammunition, or combinations thereof.” The other law states that “the General Assembly preempts the entire field of legislation relating to extreme risk protective orders.”
The referendum ordinance passed by the Memphis City Council would allow Memphis residents to vote on three different gun control measures. However, the council noted in passing it that the referendum had the role of a “trigger law” and a vote, since the city would not enforce the ordinances.
“…It's similar to the enabling legislation that states passed when Roe v. Wade was still law and they passed abortion bans that were illegal under federal law,” City Councilman Jeff Warren said in a phone interview with The CA on Monday afternoon. “All of this allows the state to pass legislation that allows Memphis to do what the voters vote for. We're not going to be able to enact this. We're not going to be able to do anything with this until the state passes legislation that says cities with populations over 500,000 have the right to do what we're asking here. So the state has to be able to pass these laws before we can pass them.”
“But I think the government needs to listen to people's opinions and give them the right to vote on what they think so that it can pass laws that help big cities.”
Council attorney Allan Wade declined to comment on whether legal action would be taken in a phone call with the CA on Monday afternoon. Wade said he received Hargett's letter on Monday shortly before speaking with the CA and did not know whether legal action would be taken.
Council President JB Smiley Jr. later told The CA that there had been no talk of litigation, but said the referendum on the ballot was already legally settled, citing a 2004 Tennessee Supreme Court ruling.
In this ruling, the Supreme Court ruled in favor of the city and stated that a referendum had to be put to a vote because the electoral commission had “exceeded its legal and constitutional powers” and the question of the constitutionality of the referendum was not yet ready for a decision.
Wade was involved in this 2004 lawsuit.
“I think we've clearly shown that this issue has already been discussed with the local communities,” Smiley told The CA. “I just don't know where the Secretary of State is getting his information from and I'm not really concerned about it. I'm not going to argue with anyone about it. I respect the General Assembly and its right to implement laws. What I hope for the council is that the council is respected as a body duly elected by the people that can gauge the opinion of its citizens on a particular issue.
“We don't usurp the law. We don't circumvent the laws of the state. We actually respect the law. But we also respect the law in the sense that we know we have the opportunity to ask people what they think about a particular thing.”
Lucas Finton covers criminal justice issues for The Commercial Appeal. Reach him at [email protected]
