The Tennessee Supreme Court has held that "the right to hold an election does not exist absent an express grant of power by the legislature." (See Brewer v. Davis, 28 Tenn. 208 (1848); McPherson v. Everett, 594 S.W.2d 677, 680 (Tenn. 1980).) The Tennessee Attorney General’s office has consistently concluded under those cases that referenda are elections for which there must be statutory authorization. Op. Tenn. Atty. Gen. No. 86-146; 95-013.
Local Referenda Permitted
The following referenda are authorized under Tennessee law:
- General obligation bonds (T.C.A. §§ 9-21-201, et seq.);
- Liquor retail sales (package stores) or selling alcoholic beverages for consumption on the premises (T.C.A. §§ 57-3-101, et seq., T.C.A. §§ 57-4-101, et seq.);
- Annexation (T.C.A. §§ 6-51-104, et seq.);
- Local sales tax (T.C.A. §§ 67-6-701, et seq.);
- Adopting or surrendering the general law mayor-aldermanic charter (T.C.A. § 6-1-201), the city manager-commission charter (T.C.A. § 6-18-104), and the modified city manager-council charter (T.C.A. § 6-30-106);
- A private act passed by the General Assembly (Article XI, Section 9, of the Tennessee Constitution);
- Creating an emergency communications (911) district (T.C.A. §§ 7-86-101, et seq.);
- Recalling a city official if the charter permits (T.C.A. § 2-5-151);
- Adopting or amending home rule charters (Article XI, Section 9, of the Tennessee Constitution);
- Popular election of the mayor in cities incorporated under the uniform city manager-commission charter (T.C.A. § 6-20-201(b));
- Consolidating city and county government (T.C.A. §§ 7-1-101, 7-3-312, and 7-21-101, et seq.);
- Increasing the number of commissioners from five to seven for cities with a population greater than 20,000 incorporated under the uniform city manager-commission charter (T.C.A. § 6-20-101); and
- Approval of the issuance of retail liquor licenses to alcoholic beverage manufacturers (T.C.A.§ 57-3-204).
Referendum Election Procedures
The procedures for holding any type of referendum election generally are in the law that authorizes the election. If the legislation does not address a particular type of referendum, the provisions of the Election Code apply. Additionally, T.C.A. § 2-3-204 frequently applies, and T.C.A. § 2-12-111 and T.C.A. §§ 2-6-101, et seq., always apply. Elections regarding local option sales tax pursuant to T.C.A. § 67-7-706(a) shall be conducted according to T.C.A. § 2-3-204.
Resolutions, ordinances, or petitions requiring elections on questions to be held during the general election or the presidential primary must be filed with the county election commission at least 75 days before the election T.C.A. § 2-3-204(b).
The city attorney is required to summarize in 200 or fewer words any question exceeding 300 words that is to be submitted to the voters T.C.A. § 2-5-208(f).
T.C.A. § 2-5-208 requires any question submitted to the people in a local referendum to be followed by the words yes and no so the voter can mark an X opposite the proper word. Any question must be worded so that yes indicates support for and no indicates opposition to the measure.