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Are the racist expulsions of Democratic lawmakers Justin Jones and Justin Pearson from the Tennessee House of Representatives legal? According to a Supreme Court case from 1966, they might not be.
That case, Bond v. Floyd, bears some similarity to the crushing of dissent we’ve seen unfold in Tennessee. After Jones and Pearson joined a gun control protest following the school shooting in Nashville, they were expelled from their elected roles by Republicans, who chose to subvert the voters’ will instead of trying to protect those voters from even more gun violence.
In that Supreme Court case from 1966, the Georgia House of Representatives had refused to seat Julian Bond, a newly elected member — and like Pearson and Jones, a Black man — after statements he made that were critical of the Vietnam War. Siding with Bond, the Supreme Court ruled that a state can’t apply a stricter speech standard to legislators than its residents. For more on the Bond case, see this thread from Joyce Vance, a columnist and legal analyst for MSNBC:
Certainly, Jones and Pearson would want to cite Bond in any court challenge that ensues. No doubt, the principle underlying the ruling should keep them in their elected seats. On the other hand, a court might seek to distinguish Bond from the situation in Tennessee, on the grounds that the 1966 case involved failing to seat a member rather than expulsion. An appeals court has already made that distinction, reasoning in 1997 that the Bond case “did not even address the power of legislatures to discipline members, but rather involved a question of whether the Georgia legislature could refuse to seat members-elect in the first place.”
To be sure, the issue may not need a court resolution. Indeed, the expulsions could effectively be nullified soon if Jones and Pearson are reappointed on an interim basis ahead of the next election for their seats. Under the Tennessee Constitution, that decision is made by the “legislative body of the replaced legislator’s county of residence at the time of his or her election.” For example, Nashville Mayor John Cooper has already said there will be a council meeting Monday to send Jones “right back to continue serving his constituents.”
So the expulsions could be quickly remedied, not that that would make them any less anti-democratic in the first place (or ensure that they don’t recur). Indeed, the Tennessee Constitution itself speaks directly of legislators’ “liberty to dissent from and protest against, any act or resolve which he may think injurious to the public or to any individual, and to have the reasons for his dissent entered on the journals.”
Add that provision to the First Amendment precedent that Jones and Pearson have on their side in any court challenges that emerge against the Tennessee Republicans intent on silencing them.