Federal judge reserves judgment on lifting her injunction against a state Senate vote to void District 29 election.


Ophelia Ford will be a state Senator from District 29 at least through the weekend, while U.S. District Judge Bernice Donald ponders the exhibits, evidence, and testimony elicited up to and through Wednesday’s day-long special hearing on the status of Ford, whose narrow 13-vote victory in a special election last fall is on the very brink of nullification by a majority of her colleagues.

Though there had been a general expectation that the issue might be resolved on Wednesday, Donald’s decision to postpone a ruling until lnext week was accepted for the most part in an outward show of good grace by the defendants in the case, including the 13 Republican state senators and one Democrat who showed up en masse for the hearing.

“That’s fair enough. She’s got a lot of material to work through,” said Senate majority leader Ron Ramsey of Blountville. His sentiment was echoed by Memphis lawyer John Ryder, attorney for the GOP senators who, along with Democrat Don McLeary of Humboldt, were in the majority last week on a preliminary 17-14 vote to void Ford’s election.

Finding it difficult to be as philosophical was Terry Roland, the defeated Republican adversary who, in and out of court, has challenged Ford’s election on the basis of several alleged frauds and irregularities. Roland wondered aloud afterward if the extra several days provided by Donald wouldn’t give Lt. Governor John Wilder, the venerable Senate speaker who favors Ford’s seating, an opportunity to “twist arms and change the vote.”

Promising to reach a decision sometime between Monday at the earliest and Wednesday at the latest, Donald will determine a plethora of questions – on the question of her own jurisdiction, on her need to hear further elements of the case, and on the possible permanent continuation of her temporary injunction against a final – and definitive --Senate vote.

Donald imposed the injunction on due-process grounds last week after the Senate, acting as a “Committee of 33” for purposes of the ongoing special session, voted to void the results of the September 15th special election in District 29. The move came in response to a motion by Republican majority leader Ron Ramsey of Blountville and reached the magic number of 17, a majority of the body, when Democrat McLeary broke ranks to join with 16 Republicans.

Before that vote on Tuesday night of last week could be repeated in a scheduled vote by the Senate in regular session on Thursday – when another majority would have made the outcome irreversible -- Donald had been petitioned by lawyers for Ford, reportedly via telephone, and had granted the Temporary Restraining Order.

Legal teams representing the various parties to the action were in Donald’s court on Wednesday. On hand to represent the Senate as a whole were state Attorney General Paul Summers and two deputies. Ryder -- like the AG, making a motion to dismiss Ford's suit -- was there on behalf of the 17 Yea voters from last week, and Lang Wiseman, aided by Richard Fields, represented Roland, whom Judge Roland later dismissed as a defemdamt. Memphis lawyer David Cocke headed a three-member team representing Ford, who has invoked Civil Rights statutes in an effort to block further Senate action.

Witnesses heard from Wednesday included state Election Supervisor Brook Thompson, several Ford co-plaintiffs who claimed to have ended up improperly on Roland’s list of suspect voters, and state Senator Steve Cohen, a Memphis Democrat who was called by Cocke to affirm his thesis that the Senate had acted last week without appropriate information from the six-member Senate special committee charged with offering recommendations on the seating question.

From the pont of view of content, the only truly startling fact adduced in the testimony was Thompson's admission, in reply to a question from Ryder, that the final matching of District 29 voters against the Social Sercurity Administration's "master death list" had yielded 38 hits -- not just the two that were already known. The disclosure evaporated almost as soon as it bubbled up, however, as Thompson went on to explain that 32 of these matches were "keying errors" involving voters whose names and ages "weren't even close" to those on on the corresponding death file. Another four matches involved surviving people continuing to  use the social security number of a deceased family member -- as was once permitted by the SSA. Upon receiving this explanation, Ryder did not press Thompson further, and the matter never re-surfaced.

Wednesday’s proceedings were often dull and technical to the point of challenging the wakefulness of attendees. Cohen managed to liven things with a series of quips that were both on and off the point of the moment. (Example: “If I can, I can get around this,” Cohen said when his paraphrasing of a statement by Wilder was objected to as hearsay evidence. Rephrasing the testimony from his own perspective, the Memphis senator quipped about Wilder, who frequently speaks of the “cosmos”: “What he said was cosmotic, anyway.”)

Cohen, who had tangled last week with Senate Democratic Leader Jim Kyle and others over the organizaton of the Senate into a "Committee of 33" for the special session also got the opportunity to complain that "they" had thereby "emasculated" the State and Local Government Committee, which he chairs. And, in response to a question in cross-examination from Assistant Attorney General Janet Kleinfelter about the duration of last week's Senate discussion on seating Ford, Cohen had the satisfaction of referring to Kyle, a frequent antagonist, as having been "verbose."

Ironically, Cohen’s appearance, coupled with the presence of Ophelia Ford herself, brought to 16 the number of senators on hand in Donald’s courtroom – almost enough to constitute a majority, if still well short of the two-thirds majority needed to constitute a quorum.

The most anxious of the senators present Wednesday was Democrat McLeary, who observed during a break in proceedings, “I feel intimidated about my vote, just being made to come here.” He, along with Memphis Republicans Mark Norris and Curtis Person, had received subpoenas for possible testimony – presumably because their domiciles were within a hundred-mile radius of the court and they could offer some background, if called upon, concerning last week’s vote.

In the event, the three senators, who were meanwhile bolstered by the show of support from their colleagues, were never called. Most of the testimony that was heard concerned the technicalities of the voting process and the alleged election irregularities, which included nine votes that were ultimately found by the six-member special Senate committee to be invalid. Two of those votes had been cast in the name of dead people, and several more were cast by felons whose right to vote had never been legally restored.

Remaining at issue were multiple instances of improper addresses and invalid election-day voter signatures alleged by Roland’s team. It was largely on the basis of these that Ford’s team sought the injunction, charging that any effort to void the election based on them would cause Ford “irreparable harm” and result in mass disenfranchisement of District 29 voters, as well as violation of constitutional due process.

Those are some of the issues Judge Donald will have to consider, as well as the defendants’ claims that the federal court lacked standing to adjudge the Senate’s historical right to determine its own membership ("Let the Senate be the Senate," as AG Summers put it Wednesday, employing a vintage Wilderism), that the results of the enjoined vote could not be predicted, in any case, and, most simply and crucially, that the injunction should therefore be dismissed – clearing the way for a final Senate vote.

As the courtroom was clearing, just after 6 p.m., and the weary senators were making plans to return to Nashville for the week’s final legislative day on Thursday, one of the Republicans who had voted against Ford and argued strongly to void her election, Jim Bryson of Franklin, made a point of smiling cordially at her. “See you tomorrow,” he said, colleague-to-colleague.





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