The special election to replace Mark Green will likely violate federal law
Tennessee's filing deadline for special elections creates an irreconcilable conflict with rules protecting military and overseas voters
On Tuesday, Republican Congressman Mark Green, who represents Tennessee’s 7th congressional district, announced that he would “resign from Congress as soon as the House votes once again on the reconciliation package.”
However, the question of when the special election will take place is difficult to answer. For one, it’s impossible to know when the House will vote again on the so-called “Big Beautiful Bill.” But second, Tennessee requires an election timeline that violates federal law.
The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) guarantees that active-duty military members, as well as U.S. citizens residing overseas, have the ability to participate in federal elections. In its current form, UOCAVA imposes a variety of requirements on state and local election administrators to accomplish that goal, but one of the most critical is that eligible voters must receive absentee ballots on a reasonable timeline ahead of the election.
Specifically, UOCAVA mandates that voters receive their ballots for both primary and general elections 45 days before each election. As a practical matter, this means that general elections must take place at least 45 days after the primary, but also that at least 45 days elapse between the filing deadline and the primary election. If the list of candidates for the primary election isn’t finalized 45 days before the primary, then absentee ballots can’t be printed and sent to eligible voters on that date.
As it stands, Tennessee law probably allows enough time between the primary and general elections, but not enough time between the candidate filing deadline and the primary election.
First, under section 2-16-101(b) of the Tennessee Code, the governor—currently Republican Bill Lee—must call a special election for Congress within 10 days of a vacancy arising. The primary election must take place 55 to 60 days after the governor calls the special election, and the general election must take place 100 to 107 days after the call.
Second, section 2-14-106(a) requires that candidates submit their qualifying petitions “no later than twelve o’clock (12:00) noon prevailing time on the sixth Thursday before the day of the election.”
It’s possible, then, that the governor could schedule the primary and general elections in a way that would violate UOCAVA. As silly as this sounds, depending on which day of the week Lee issues the writ, it’s possible that the only available Tuesday election dates would provide too short of a window.
Issuing the writ between Sunday and Wednesday would comply with federal law. If issued on a Thursday, though, there’s no possible Tuesday election date that would work for the primary election. And if issued on a Friday or Saturday, the only Tuesdays allowed under Tennessee law would violate federal law.
To illustrate, if Green were to resign immediately and Lee were to issue a writ of election on Friday, June 13, that would create a window for the primary election between Aug. 7 and 12, and a window for the general election between Sept. 21 and 28.
The only available Tuesdays in either range—Aug. 12 and Sept. 23, respectively—would be 43 days apart, which would not be sufficient for UOCAVA. Yet if Lee were to issue the writ of election on Sunday, June 15, then the available Tuesdays for both ranges—Aug. 12 and Sept.—would be 49 days apart, which would be acceptable under federal law
That aside, the irreconcilable problem is the filing deadline. Regardless of which day of the week the primary election might be held, “the sixth Thursday before” that date would not add up to 45 days beforehand.
States are entitled to seek “hardship” waivers from UOCAVA, but none of the provisions that allow for waivers apply here.
Somewhat surprisingly, given Tennessee’s eight-member congressional delegation, the last time that it held a special election was in 1988,1 just two years after UOCAVA’s passage. However, the 45-day requirement for sending a primary election ballot wasn’t imposed until 2009, so Tennessee has never had to deal with a special election under the current rules. But it will this year.
This is the second time in as many years that a looming special election has looked like it might be conducted in violation of federal law—and the second time that I’ve written about it at Guaranteed Republics. In 2023, when the special election to replace former Congressman David Cicilline in Rhode Island’s 1st Congressional District seemed likely to violate federal law, the Rhode Island General Assembly passed a law to shift the timeline. Whether Tennessee will do so remains to be seen.
And that year, it held two. In 1987, Congressman Bill Boner was elected Mayor of Nashville. Governor Ned McWherther called a special election on October 5, the day that Boner took office as Mayor, set a filing deadline of October 22 and the primary for December 3. Later that year, Congressman John Duncan, Sr., died, and his son, Jimmy Duncan, was elected to succeed him. The primary and general elections were held simultaneously with the regularly scheduled races.