'Dangerous precedent': Bill criminalizing local votes draws outrage — even from Republicans

As Gov. Bill Lee’s immigration enforcement plan moves swiftly through the Tennessee Legislature, one component of the bill — aimed at arresting local officials who support sanctuary policies for immigrants — drew scrutiny Tuesday.

Included in the governor’s wide-ranging proposal to coordinate with the Trump Administration on mass immigrant detentions and deportations is a provision that creates a Class E felony for public officials who vote to adopt or enact sanctuary policies. Sanctuary policies can shield undocumented immigrants and limit cooperation with enforcement action

The felony charge, punishable by up to six years in prison and a $3,000 fine, would apply to any public official who votes in favor of a sanctuary law, policy or on non-binding resolutions.

Sen. Todd Gardenhire, the Republican chair of the Senate Judiciary Committee, blasted the provision Tuesday as a “dangerous precedent.”

“We are a Republic, and a Republic is one that we elect people to vote the way they feel like is best for the district, the city, county or the state,” he said.

“If we set the precedent of penalizing any elected official for voting their conscience, whether it’s good or bad, then we set a dangerous precedent for the future,” he said.

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Democrats characterized the provision as a “slippery slope” that could be invoked in future legislation to criminalize votes on any controversial issue.

“It is alarming we are sitting here talking about felonizing elected officials taking votes on behalf of their constituency,” Sen. Heidi Campbell, a Nashville Democrat, said. “Boy, this is a slippery slope and be careful what you wish for if you vote for this.”

Gardenhire was in the minority among Republicans who dominate the Senate Judiciary Committee. They quickly shot down Gardenhire’s efforts to amend the bill to remove criminal penalties before voting to advance it in the legislature.

Sanctuary policies are already prohibited by a 2019 Tennessee law that sought to prevent local governments from adopting sanctuary city status —as some other Democrat-led cities across the country have done.

The 2019 Tennessee law gives citizens the right to file civil suits challenging any jurisdiction’s adoption of sanctuary policies and the state the power to withhold funding over violations.

“When the state banned sanctuary cities, its remedies were to deny cities grants and to seek a court order,” said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.

“Here the state is trying to control the actions of duly-elected officials through the police power,” he said. “That’s a dramatic escalation.”

One national government accountability expert said he knew of no other state law that threatened to prosecute public officials for how they cast a vote.

“It’s an unprecedented power grab and criminalization of political discourse,” said Dan Vicuña, director of redistricting and representation for Common Cause, a Washington, D.C. advocacy group.

“It puts at risk the basic right to local representative and democratic government,” he said.

And local legal experts, among them the legislature’s own attorney, said the provision may be “constitutionally suspect.”

“Generally speaking Tennessee courts have found legislative bodies have legislative immunity for acts that serve part of their legislative function and that legislative immunity extends to local legislative bodies,” Elizabeth Insogna, a Legislative attorney, told the committee.

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“It’s possible that a criminal provision that is enforced against a member of a legislative body may be constitutionally suspect,” she said. “It would be up for a court to determine.”

John Vile, professor of political science and Dean of the University Honors College at Middle Tennessee State University said “legislators should heed Article 1” of the Tennessee Constitution, which establishes a “Declaration of Rights” for citizens and their elected representatives.

“I don’t know of any other laws, state or federal, that penalize elected officials on the basis of how they vote,” he said. “This seems to defeat the whole purpose of democratic-republican (representative) government.

Republicans however noted the criminal penalties are aimed at elected officials attempting to pass legislation already outlawed in Tennessee.

“I think everybody would agree that’s something that elected officials should be prohibited from doing, or should not do,” said Sen. Kerry Roberts, a Springfield Republican. “The fact there’s a consequence for it, I personally don’t have a problem with that, because they ought not to be doing it in the first place. It’s illegal.”

Only two current laws provide criminal penalties for lawmakers acting in their official capacities, according to Stephen Crump, executive director of the Tennessee District Attorneys General Conference. One longstanding law allows criminal charges to be brought against county commissioners who fail to adequately fund local jails. Other lawmakers may be charged if their vote violates official misconduct statutes.

Tennessee Lookout is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com.