Tennessee is considering SB 2616, a bill that would require candidates for congressional partisan primaries meet existing state constitutional residency requirements. This week, the bill advanced out of committee by a 5-1 vote (with 1 abstention). The sponsor read from Justice Scalia’s dissenting opinion in U.S. Term Limits, Inc. v. Thornton. When the committee’s counsel pointed out that the bill would likely be unconstitutional under Thornton, the sponsor indicated, “These Supreme Court cases were when the Democrats and the liberals controlled the Supreme Court. All four of the conservative justices said it was constitutional. . . . There’s no doubt it would be ruled in our favor.” Later, he added, “What was unconstitutional in 1995 would be constitutional today if the Supreme Court today heard it. . . . If the conservatives control the Supreme Court, it’s constitutional.” (I think Thornton was right for reasons I set out, among other places, in Weaponizing the Ballot.)

A separate issue arose in the committee suggesting that it applied only to partisan primaries and not to independent candidates (which raises separate associational interests). A primary-only rule was at play in Texas Democratic Party v. Benkiser (5th Cir. 2006), but that question was complicated by the fact that a candidate was trying to be removed from the ballot by a party for an alleged lack of inhabitancy in the state before the election. The chair of the committee added that it’s up to the parties to determine party qualifications. I’m not sure this wrinkle would save the bill after Thornton, and in some ways complicates it further given the party’s associational interests.

We’ll see if this bill continues in the legislature, but I was a little surprised to see fairly strong bipartisan support out of committee for the bill, a reason I thought I’d blog about it at this early stage.