Memphis has no five-year residency requirement, chancellor rules in mayor residency lawsuit

A five-year residency requirement for Memphis mayoral candidates was eliminated by a 1996 ballot referendum, Chancellor JoeDae Jenkins ruled Thursday after hearing arguments in the lawsuit.

That allows a path forward for two mayoral candidates, Shelby County Sheriff Floyd Bonner and Memphis NAACP President Van Turner, to continue their campaigns.

"The court finds and concludes it does not find any ambiguity at all … rather the reading is quite simple on its face, particularly when read in its proper context which retains the integrity of the ordinance without adding or taking away from it," Jenkins said. "That is to say, the mayoral qualification clause is dependent on the qualifications of the (city council members).”

Attorneys for two mayoral candidates and the Memphis City Council faced an attorney for the City of Memphis in court Thursday, arguing whether the city has a five-year residency requirement for mayor.

Central to the question posed Thursday is whether a 1996 ballot referendum redistricting the City Council also ended the five-year residency requirement for mayor.

The trial comes after weeks of twists and turns in the lawsuit, with varying arguments and new parties both entering and being dismissed from the case.

It also pit the legislative branch of the city of Memphis against the administrative, with attorneys for the Memphis City Council arguing that there is no five-year residency requirement and attorneys for the city administration arguing that the five-year requirement stands.

Thursday, attorneys for Bonner, Turner and the City Council described a seeming conspiracy leading to the enforcement of the five-year residency requirement in this mayoral race.

When the requirements for City Council changed in 1996, they also changed for mayor due to a "same as" clause in the 1966 home rule charter, they said.

Jenkins said that when the voters ended the five-year residency requirement for council members, it left no five-year requirement in the charter that could be applied to mayor.

"It is only through a forced, contorted interpretation read out of context that we can reach the version contemplated by the city," Jenkins said.

Attorneys debate charter, nature of 1996 vote

Robert Spence, attorney for Bonner, portrayed the question as a controversy artificially manufactured by Linda Phillips, administrator of the Shelby County Election Commission, at the behest of a shadowy villain, the administrative branch of the city of Memphis.

“The administration does not want these candidates to run," Spence said during closing arguments. "We know it now. We know the author of this story that put this whole plot together is the city administration.”

During arguments, Spence walked through a timeline, beginning with Phillips asking Memphis City Council Attorney Allan Wade for an opinion on residency in 2019, going through the creation of the Robert Meyers opinion that he described as falling “out of the sky,” and ending with the city only acknowledging the Meyers opinion as its official position after weeks of being asked the question.

“What I don’t understand is why these fine lawyers,” he gestured to the city attorneys, ”who are attacking its own ordinance, aren’t sitting over here. The sworn duty of the city attorney is to defend the ordinance, not to attack it.”

He described city attorneys as “trampling on their oath of office.”

Tannera Gibson, an attorney representing the city of Memphis, said the city is actually trying to enforce the charter and its amendments as worded, and that the legal standard is what the voters intended.

She held up a poster showing the ballot voted on in 1996 amending the home rule charter, pointing out that it did not mention the mayor.

“I turned 18 in 1996," Gibson said. "This is actually the first election I was eligible to vote in, this election. What we didn’t see is a referendum on the mayor. I don’t know that anyone who voted in this election saw a referendum on the mayor. .... I challenge opposing parties to show us where the voters were ever put on notice that … (this ordinance) changes the residency requirement for our city mayor.”

You cannot have a second "secret" issue affected by a referendum, she said.

"On the face of it, they all relate to the City Council or City Council's authority," Gibson said, pointing to the different questions on the 1996 referendum.

Both Bonner and Turner were present in court Thursday. Other notable parties present included mayoral candidate JW Gibson, who had previously sought to intervene in the lawsuit but was denied by the judge, Memphis City Council Chairman Martavius Jones and Memphis City Council Vice-Chairman JB Smiley Jr.

Wade said he didn't know why the city is acting to enforce the five-year residency requirement.

"The city as an entity and the mayor in his official capacity, what is their stake?" Wade asked. “All of this seems to be an issue that was created to allow Mr. Meyers to give an opinion and then create consternation over that.”

The lawsuit was originally two separate ones, filed by mayoral candidates Floyd Bonner and Van Turner, but then consolidated.

Originally, the suits were filed against the Shelby County Election Commission, but once the city of Memphis stated a position on residency, the city was brought in as a defendant and the plaintiffs moved to dismiss the Election Commission from the suit.

The Memphis City Council also unexpectedly became involved in the suit, with Wade contradicting the city administration and filing a "cross complaint" that says a 1996 ordinance ended the five-year residency requirement for mayor. The defendant in that cross complaint is Memphis Mayor Jim Strickland.

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Attorneys for Bonner and Turner sought an order from Jenkins declaring that there has not been a durational residency requirement for mayoral candidates since 1996.

Jenkins asked attorneys for the three plaintiffs to work together to craft language on the declaration he will issue.

During arguments, attorneys also discussed the nature of voter disenfranchisement and how it applies to this case. The 1996 ballot referendum was in direct response to how the structure of the City Council at the time disenfranchised Black citizens.

Wade said the 1996 ordinance was “neutral and removed barriers to entry by Black candidates.”

Gibson, the city’s attorney, went a step further, saying that the plaintiffs’ assertion that voters should have known the vote applied to the mayor — without mentioning it on the ballot — is another form of voter disenfranchisement.

It’s another form of “jellybean voting,” Gibson said, referring to the historical practice of asking Black Americans to guess the number of jellybeans in a jar before being allowed to vote.

Gibson said changing legal standards based on court cases, including one decided in 2022, resulted in this becoming an issue in this mayoral race.

“That is the out of the blue from which this came,” she said. “It wasn’t magic, your honor.”

Plaintiffs to pull petitions soon

After Jenkins' ruling, Bonner and Turner said outside the courtroom that they can now move fully forward with their campaigns.

"I think the citizens want a mayor who's going to deal with crime and public safety, so we're pleased with this decision today," Bonner said.

Turner, also a former Shelby County Commissioner, said residents care less about how long a candidate has lived in the city and more about what that candidate has done for the city.

"I think it's still fairly early. Obviously voters are going to start paying more attention as we get into the summer, and this issue has been resolved," Turner said. "I dont know if it's a question of you necessarily being in the city for five years as a resident versus what you've done for the city, how you've invested, do you have a good plan to move the city forward and how you're going to tackle public safety, infrastructure, jobs."

Candidates can begin pulling positions for the Memphis mayoral race — and the Memphis City Council — Monday. The election is scheduled for Oct. 5, 2023.

Katherine Burgess covers government and religion. She can be reached at katherine.burgess@commercialappeal.com or followed on Twitter @kathsburgess.

This article originally appeared on Memphis Commercial Appeal: Memphis has no five-year residency requirement, chancellor rules in mayor residency lawsuit