Tennessee Congressional candidate Robby Starbuck was restored to the August primary ballot in a stunning judgment from Davidson County Chancery Court Judge Russell Perkins. Judge Perkins granted Starbuck's request for a temporary injunction based on the threshold question of the Tennessee Open Meetings Act or TOMA. Perkins ordered Starbuck be fully restored on the primary ballot.
Starbuck appeared before Judge Perkins on June 2, hoping to be reinstated on the August 4 primary ballot. Starbuck filed for a temporary injunction against the Republican Party (TRP) in Newsom vs. TN Republican Party et al., on May 20 arguing that the TRP violated TOMA and, therefore, their vote was null and void because they didn't hold a public meeting transparent to the electorate. Starbuck was represented by Eric Osborne, Chris Sabis, and Alex Carver with the Sherrard, Roe, Voigt, and Harbison law firm. The judge's decision can be found here.
While Judge Perkins did not grant Starbuck temporary injunctive relief on non-statutory breach of contract and promissory estoppel claims., he did grant temporary injunctive relief on the basis of The Open Meetings Act or TOMA. In formulating his decision, the judge agreed with Starbuck's lawyers that the SEC serves as a primary board. Perkins reiterated Tennessee law stating that the SEC is a primary board and is subject to TOMA and therefore violated the law when the members met in "secret."
Perkins' Ruling/Starbuck v. TRP
Seemingly sympathetic to the fact that "Mr. Starbuck made several efforts to address complaints and concerns about whether he was a Republican in writing and in conversations," Perkins ruled that Starbuck was correct to argue that the TRP violated TOMA. Per Judge Perkins' order, the decision to entertain TOMA voids the decision made on April 11 by the TRP.
Perkins/Starbuck v. TRP
Perkins Decision/Starbuck v. TRP
Starbuck's lawyers confirmed to the court that he was not allowed to attend the discussion to plead his case. His lawyers also made it abundantly clear that they were not specifically asking the judge to decide whether Starbuck should be on the ballot.
Notably, the lawyer for the Tennessee Republican Pary, Joshua Mullen, argued, among other things, that Starbuck does not have the standing in the chancery court. He also argued Starbuck did not have "likelihood to succeed on the merits." Mullen argued that Davidson County has already approved the ballots for the primary and putting him back on the ballot would be burdensome. However, UncoverDC spoke with the Davidson County Republican Chair, Jim Garrett, who says the final ballot approval has not occurred yet but the meeting is scheduled for June 6. Garrett also posited that the court's decision could affect the reinstatement of the other two removed candidates, even though they were not plaintiff's in the Starbuck case. Garrett stated that if TOMA applies for Starbuck it could apply for Ortagus and Lee as well. However, there has been no indication that the two candidates are motivated to be restored.
Brief History of Events
Starbuck was removed from the August 4 primary ballot because, according to the TRP, his candidacy was "properly protested," and the TRP ultimately decided he is not a "bona fide Republican." Trump-endorsed Morgan Ortagus, who only recently moved to Tennessee, and native Tennessean, Baxter Lee "were also ousted from the crowded primary" in the newly redrawn 5th District of Tennessee. The congressional district includes Davidson County, the second-largest county in Tennessee, and the city of Nashville. Ortagus and Lee have not contested the SEC's decision.
Starbuck, who is Cuban American, is known for his spirited speeches and fighting attitude. Starbuck attributes some of his attitude to what his family endured in Communist Cuba.
The State Executive Committee (SEC) of the Republican Party of Tennessee determined by a majority vote of 13-3 that Starbuck was not a bona fide Republican based on a rationale that is yet unclear because the discussions were not public.
Article IX of the Tennessee Republican Bylaws says that vouching is an option when a candidate has not met three of four primary vote requirements. The TRP hereby defines the term "bona fide Republican" as:
A. Any individual who is actively involved in the Tennessee Republican Party, his County Republican Party, or any recognized auxiliary organization of either; and resides and is registered to vote in said county; and either
B. Any individual who has voted in at least three (3) of the four (4) most recent Statewide Republican primary elections; or
C. Any individual who is vouched for in writing (to the satisfaction of the decision-makers defined herein) as a bona fide Republican by an officer of the TRP or a member of the CEC [County Executive Committee], excluding SEC members, of the County and/or District where said individual resides. The decision-makers defined herein may require additional verification that said individual is indeed a bona fide Republican.
Starbuck brought his first case to the District Court of the Middle District of Tennessee—Chief Judge Waverly Crenshaw arguing constitutional violations in addition to the claims in his second lawsuit—but was shot down. Starbuck had filed the lawsuit against Tennessee GOP chair Scott Golden, Tennessee Secretary of State Tre Hargett, and Tennessee Coordinator of Elections Mark Goins.
Interestingly, Crenshaw, in his 19-page decision, denied the constitutional claims but intimated that Starbuck could pursue his TOMA claims. He allegedly told Starbuck's attorneys, "If I decline, you've got enough time to file in state court."
“Starbuck’s efforts were thwarted not because of any clear violation of federal law, but because (for whatever reason) the (Tennessee Republican Party) decided not to follow its own rules,” Crenshaw wrote.
UncoverDC spoke with Starbuck in April, and he explained he could not vote in the required three out of four most recent primaries because he had not been in Tennessee long enough to vote in the required number of primaries. He was also in the process of relocating his family of five and was busy closing his business in California. Starbuck officially moved to Tennessee with his family in 2019. He has been actively running for office since 2021.
Starbuck says he voted Republican consistently in California. UncoverDC also spoke with Davidson County GOP Chairman Jim Garrett who confirmed Starbuck's voting record and regarded him to be a bona fide Republican candidate. In fact, he was one of Starbuck's vouchers. Because Starbuck failed to meet the primary election voting requirement, he needed Republican vouchers to get on the ballot. Starbuck said State Republican Chairman Scott Golden told him he had more vouchers than any other candidates.
Much of the controversy surrounding Starbuck's case centers on the SEC's failure to use the vouchers provided to them by bona fide Republicans in Davidson County. The vouchers were not frivolous either. Per Starbuck's lawsuit, the SEC received "written vouchers from nine CEC members from the Fifth Congressional District and the First Vice Chairman of the Williamson County Republican Party." There were a total of 14 vouchers for Starbuck, more than any of the three candidates who were removed.
While the SEC does have the right to determine candidate eligibility per their bylaws, they elected to meet in secret and effectively disregarded the vouchers provided. As a result of the controversy, the SEC is now re-evaluating whether to remove that clause from their bylaws. At the end of March, the Tennessee legislature passed a law stipulating residency requirements for candidates to prevent carpetbagging. The bill passed 31-1. Secretary of State Tre Hargett ruled it could not be enforced for this particular election because it became law after the candidate filing date. Starbuck believes the legislation was passed to keep people like him out of the race, but supporters of the bill said they want people running who are familiar with the culture and needs of Tennesseans.
EDITOR'S NOTE: The author of this column is a member of the Davidson GOP Committee and vouched for Starbuck to be placed on the ballot under GOP rules.