Secretary of State refuses to approve Memphis' local gun control ballot referendum

Secretary of State Tre Hargett Monday afternoon said his office would not approve a Memphis ballot that includes a gun control referendum placed on it by the Memphis City Council.

Hargett's reaction comes hours after Tennessee Republican leadership threatened to withhold sales tax revenues from Memphis if the measure were to be placed on the ballot in November.

"Common sense says local governments can't override state law to give a 12-year-old a driver's license, and they can't override other state laws either," Hargett said in an email statement to The Commercial Appeal. "Memphis has no authority to circumvent state law. Our office will not approve a ballot with items already preempted by state law."

Hargett also notified the Shelby County Election Commission Monday that the ballot referendum cannot be placed on the ballot because "the unequivocable declarations by the General Assembly in these state laws facially preempt the referendum proposed in Ordinance No. 5908 and leave no authority for the City of Memphis to propose charter amendments in these fields of regulation," Hargett wrote in a letter shared with The Commercial Appeal.

The letter cites two state laws that the Secretary of State's office said prevent the referendum from being placed on the ballot. One law reads, in part, that "the General Assembly preempts the whole field of the regulation of firearms, ammunition, or components of firearms or ammunition, or combinations thereof." The other reads, in part, that "the General Assembly preempts the entire field of legislation regarding extreme risk protection orders."

The referendum ordinance passed by the Memphis City Council would allow Memphians to vote on three different gun control measures, however the council noted during its passage that the referendum would act as a "trigger law" and poll since the city would not enforce the ordinances.

"...It's much like the enabling legislation that states passed when Roe v. Wade was the law of the land, and they were passing abortion bans that were illegal under federal law," City Councilman Jeff Warren told The CA in a phone interview Monday afternoon. "All this does is it allows the state to be able to pass laws that will let Memphis do what the voters are voting for. We won't be able to enact this. We won't be able to do anything with it until the state passes laws that say cities over 500,000 in population have the right to do what we're asking for here. So we need that state to be able to pass these laws before we can enact them.

"But I think the state needs to hear from people and let people have the right to vote on what they think about this so they can pass laws that help big cities."

Council Attorney Allan Wade was noncommittal as to whether any legal action would be taken during a phone call with The CA Monday afternoon. Wade said he had received Hargett's letter Monday, moments before speaking with The CA, and that he does not know whether any legal action will be taken.

Council Chairman JB Smiley Jr. told The CA later that there have not been conversations about litigation, but said that the referendum appearing on the ballot has already been settled as a matter of law, referencing a 2004 Tennessee Supreme Court ruling.

The Supreme Court favored the city in that ruling, saying that a ballot referendum had to be placed on the ballot because the election commission had "exceeded its statutory and constitutional authority" and the question of the referendum's constitutionality was not ripe to be ruled upon.

Wade was part of that 2004 litigation.

"I think we clearly showed that this issue has already been addressed with local municipalities when it comes to these issues," Smiley told The CA. "I just don't know where the Secretary of State receives his information, and I'm not really concerned about it. What I'm not going to do is go back and forth with anyone. I respect the General Assembly and their right to implement legislation. What I hope, for the council, is that the council is respected as a body, duly elected by the people, to gauge their citizens on how they feel about a particular issue.

"We're not usurping the law. We're not going around state law. We're actually respecting the law. But we also respect the law to the extent that we know we have the ability to ask people how they feel about a certain thing."

Lucas Finton covers criminal justice issues for The Commercial Appeal. He can be reached at lucas.finton@commercialappeal.com