Lawmakers changed process for challenging Tennessee laws. Here's how it worked out

Three years ago, the Tennessee General Assembly passed a law requiring that challenges to state statutes be tried before a panel of three judges, one from each grand division — west, middle and east.

Republicans who supported the bill said it would prevent judges from one part of the state — usually Nashville, where most lawsuits against state entities are filed — deciding issues with statewide application.

“We don’t need a chancellor in one specific part of the state making a decision that impacts the entire state,” former Rep. Michael Curcio, R-Dickson, said during a May 2021 discussion of the bill on the House floor.

The four Davidson County chancellors who hear these cases are all Democrats, while the two other judges would be pulled from other counties likely more conservative than Davidson.

Gerrymandering cases affected

While the law creating three-judge panels affects all constitutional challenges to state laws, Lincoln Memorial University Law Professor Akram Faizer said it has an outsized impact on lawsuits over gerrymandering.

In 2019, the United States Supreme Court ruled in Rucho v. Common Cause that federal courts cannot hear cases about partisan gerrymandering, removing a level of oversight from an already contentious issue. Since then, challenges to legislative redistricting have had to be made in state courts.

For Tennessee plaintiffs, this was bad news — federal courts were generally more sympathetic to redistricting challenges than state courts, Faizer said. In the state court system, even if plaintiffs succeeded in the Davidson County Chancery Court, they would have to withstand appeals to the Tennessee Court of Appeals and Tennessee Supreme Court — which is very difficult, Faizer said.

“[The] Tennessee Supreme Court is very, very, very afraid of the General Assembly because they don't have lifetime appointments” and because the legislature controls their budget, Faizer said.

Justices on the state’s highest court face retention elections every eight years, and if the General Assembly’s Republican supermajority wants you out, “it can easily mobilize interest group pressure against you,” Faizer said.

Once Gov. Bill Lee signed into law the bill creating the three-judge panels in May 2021, the chances a redistricting challenge would succeed at the first level — like when a trial court judge issues a temporary injunction blocking a new district map before an election — got slimmer, too.

Then in early 2022, Lee signed into law Tennessee’s new federal redistricting plan, which split Davidson County and reduced the number of majority-Democrat districts from two to one. Eight of Tennessee’s nine representatives in Washington are Republicans.

Davidson County overruled

In 2022, a group of voters sued state officials in Davidson County Chancery Court over a new Tennessee House of Representatives redistricting map that they said excessively divides counties between multiple districts — something the state constitution says should be minimized — to benefit Republicans.

After trial, a split three-judge panel in November 2023 ruled in favor of the state on the House maps. The sole judge to find that the state illegally gerrymandered when drawing House maps was Davidson County Chancellor Russell Perkins, who was outnumbered by Republican judges J. Michael Sharp and Steven Maroney, from Bradley and Madison counties, respectively.

Faizer said that outcome represents “the exact design of the law.”

The plaintiffs in that case also made a less substantive challenge to the state Senate maps, which they said were misnumbered. The judges ruled in favor of the plaintiffs. Both sides have appealed the rulings.

Davidson County upheld

Not every decision has shifted to favor the state since the panels were created, though.

Over the past year, four different three-judge panels have unanimously sided with Metro Nashville in its lawsuits against the state challenging laws that local leaders say would have stripped the city of its ability to fully govern itself.

However, the state could say it notched a slight win in one of those cases, when a Nashville judge would have gone even farther in ruling against the state than the other judges did.

After Metro Nashville sued over a law that would have reduced the size of the city’s Metro Council from 40 to 20 members, a three-judge panel blocked the implementation of the law before Nashville’s August 2023 municipal election but stopped short of ruling it unconstitutional. Davidson County Chancellor Patricia Head Moskal wrote that she would have but was outmatched by the two Republicans on the judicial panel, judges Mary Wagner and Jerri S. Bryant, from Shelby and Bradley counties, respectively.

The judges will decide whether the law can go into effect in Nashville’s next Council election after arguments between the city and state on March 26.

The state has appealed the ruling in a lawsuit by Metro over who gets to appoint members to Nashville’s airport authority, and the Attorney General’s Office still has time to file an appeal over the decision in Metro’s challenge to a similar law over the local sports authority. Metro Law Director Wally Dietz said he is hopeful that the appellate courts will side with Metro.

“While the rules do not provide for a special deference to the panel’s opinion, the strength of the panel and a well reasoned unanimous opinion should naturally carry some weight on appeal,” Dietz said in an email.

The Tennessean was able to locate 17 ongoing or closed cases in which a three-judge panel was appointed to preside over a lawsuit making a constitutional challenge to a state law. Other than in the state House redistricting and Metro Council size lawsuits, the judges do not appear to have disagreed in opinions.

The Tennessean sent several requests for comment via email to House of Representatives Republican caucus press secretaries Jennifer Easton and Josh Cross seeking comment from the 2021 bill’s sponsors but did not receive a response. The Tennessean also left messages with those lawmakers’ offices but did not receive a call back.

Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on X, formerly known as Twitter, @EvanMealins.

This article originally appeared on Nashville Tennessean: Change to challenging Tennessee laws affected outcomes in just 2 cases