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By Buzz Trexler
Star Correspondent
Voters in the state primaries Wednesday will be the first to be greeted by a yellow sign warning that state law says only “a bona fide” member of that political party – or one who declares allegiance to that party and intends to affiliate – can legally vote in the primary.
The sign reads:
“It’s the Law! Please Read …
“It is a violation of Tennessee Code Annotated, Section 2-7-115(b), and punishable as a crime under Tennessee Code Annotated, Section 2-19-102 or Section 2-19-107, if a person votes in a political party’s primary without being a bona fide member of or affiliated with that political party, or to declare allegiance to that party without the intent to affiliate with that party.”

Violators can face criminal prosecution as a Class C Misdemeanor, which can bring up to 30 days in jail and a $50 fine.

Early voting opens Wednesday, Feb. 14, and continues through Tuesday, Feb. 27, which is also the deadline for absentee ballot requests.

The state law that sets forth primary election voting requirements concerning political party affiliation has been on the books since 1972. The law mandating a printed enhanced warning was signed by Gov. Bill Lee in May 2023. It was sponsored by state Sen. Mark Pody (R-Lebanon) and state Rep. Tim Rudd (R-Murfreesboro). Among those voting for the bill were state Sen. Rusty Crowe (R-Johnson City) and state Rep. John Holsclaw (R-Elizabethton).

In counties where a political party dominates, the primary election often determines the winner. For instance, no Democratic candidates qualified for the eight local races that are on the current ballot. Two of the eight are contested in the Republican Primary: Jason E. Clawson and Brian L. Keener are on the ballot for County Commission District 6, and John B. Holsclaw Jr. and Shane Simerly are competing for Assessor of Property.

“The only way to truly see if a person is a bona fide member of a party is to look up each person’s voting history and see if they voted in a certain party’s primary for the last three elections,” said Carter County Administrator of Elections Tracy Tanner-Harris. “We don’t have the time to do that with everyone.”

The administrator of elections does not expect the presence of a sign to impact voter turnout, because the statute has been in place for so long. “The only difference is now we have to post it,” she said.

However, a lawsuit maintains the posting of the sign will create confusion and have a “chilling effect” on voters.

In November 2023, the League of Women Voters of Tennessee (LWVT) was joined by Victor Ashe – a former state lawmaker and Knoxville mayor, who is a Republican – and a Knoxville voter named Phil Lawson in filing a federal lawsuit challenging enforcement of the law. The suit maintains neither the law nor any statute defines what it means to be a “bona fide” party member, nor how one affiliates with a party or can “declare allegiance” to a party to avoid criminal prosecution.

“This new law will have a chilling effect on Tennesseans exercising their right to vote and creates unnecessary confusion for voters,” said Debby Gould, LWVT president, in a release. “The League of Women Voters will continue to fight to ensure that all voters are empowered at the ballot box and can feel confident in their right to vote.”

“I was shocked to learn about this new law, which allows someone other than me to determine if I am a bona fide member of a political party without clear criteria as to what the term means,” Ashe said in the release. “At times, I have been critical of the actions of some elected Republicans, and I now learn party officials – without defining the conditions of party membership – could not only challenge my ability to vote but also seek to have me criminally prosecuted for voting in the primary where I have voted all my adult life.”

“I have always exercised my right to vote and supported the candidates whom I thought would best help our community,” Lawson said in the release. “I now learn I may not be a member of either political party, and there is no way for me to make that choice. I also learned I could be criminally prosecuted if I make the wrong choice. I’ve spent my life building my reputation on what I think benefits all parts of my community, and this law tells me I could be prosecuted for that effort.”

Tennessee is what is known as an “open primary” state where voters choose privately in which primary to vote, but the decision does not register the voter with that party. There is no process for registering with a political party in Tennessee and voters select the primary ballot of the party in which they choose to vote when they arrive at the polling place.

In her nearly 26-year history with the Election Commission, Tanner-Harris cannot recall anyone’s party qualifications challenged, “simply because in the state of Tennessee you don’t register by party when you register to vote.”

That could change after this session of the General Assembly.

State Rep. Bryan Richey (R-Maryville), who co-sponsored the 2023n signage legislation in the House, filed a bill during this session that prescribes a process by which a person must declare a statewide political party, or recognized minor party affiliation, before voting in a primary election. The bill, HR1615, designates those who choose not to affiliate with a political party as “Unaffiliated” and authorizes unaffiliated voters to vote in primary elections.

The companion bill in the Senate, SB2631, is sponsored by Pody.