John Marek
A retired Jackson, Tennessee, Circuit Court jurist, stepping in where local Shelby County judges had feared (or chosen not) to tread, found on Thursday for the petitioners — John Marek, a candidate for the District 5 Memphis City Council seat; the Shelby County Democratic Party, and the Shelby County Young Democrats — for a temporary restraining order against further circulation of sample city ballots endorsing Marek’s opponent, Memphis City Council incumbent Worth Morgan, among several other endorsees.
The defendants in the case were Greg Grant and M. Latroy Alexandria-Williams, as well as the shell organizations — the Greater Memphis Democratic Club and the Shelby County Democratic Club, respectively — that are the nominal issuing instruments for their sample ballots.
The key point in the judgment against them was apparently their use of the term “Democratic,” in they are specifically enjoined from “distributing literature, disseminating information, or in any way communicating or utilizing words symbols, or graphical schemes reasonably implying endorsement of or affiliation with the Democratic National Committee, the Tennessee Democratic Party, or the Shelby County Democratic Party.”
The eleventh-hour judgment, which comes at the very tag-end of the voting cycle, was communicated to various polling locations by runners acting on behalf of the petitioners.
The judge, William B. Acree, did not issue a ruling on other aspects of the petitioners’ suit, including a request for judgment against the sample ballots’ use of the City of Memphis municipal seal.
Judge Acree acted after a hearing in the Shelby County Courthouse, not only issuing the T.R.O. but setting a hearing date of November 13th to consider such further prospects as “permanent injunctive relief, declaratory relief, and restitution for unjust enrichment.” If these additional penalties should be declared, not only would sample ballots of the sort that the defendants have employed in this and past elections be proscribed but the defendants’ profits from them, garnered by selling endorsement space to candidates for a fee, would be confiscated.
The defendants are among several entrepreneurs who historically have issued sample ballots including the names and mugshots of candidates who have paid the entrepreneurs handsomely for the honor of being so listed. The sample ballots have been mailed to potential voters and passed out in the vicinity of polling locations.
So widespread has been the practice in Memphis and Shelby County that all local judges chose to recuse themselves, either because they themselves had paid for such “endorsements” or out of solidarity with those who had.
The import of Judge Acree’s ruling, especially if it is embroidered on in November, could be a fatal blow against the practice, which defenders justify on the basis of the First Amendment, among other grounds.
