Memphis City Council hasn’t had its last discussion on changing how city leaders are elected.

The possibility of city partisan primary elections next year unexpectedly has come back to life with little notice.

The question that would have gone on the Nov. 8 ballot this year to permit such primaries was defeated on a third and final reading on a 5-7 vote at the Aug. 9 council session.

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But Aug. 23, the council pulled the item from the minutes of the earlier meeting without objection on a motion by council member Cheyenne Johnson and then delayed reconsideration of the item until the Sept. 13 council session.

Johnson was one of the seven “no” votes in the Aug. 9 third and final reading on the referendum ordinance.

That move could indicate Johnson has changed her position on the possibility or it could indicate Johnson is open to a discussion.

She didn’t give a reason for pulling the item from the minutes. And with the move to delay reconsideration of the item until next month, there was no council discussion. Council members didn’t even mention what the specific item was.

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“I don’t know who is doing it, to be honest with you,” said council chairman Martavius Jones, the sponsor of the call for city primary elections similar to those in Shelby County government elections.

Primaries to runoffs

Pulling the failed item from the minutes could be a first move in a more complex push to amend it, effectively swapping out the language on primaries for a referendum on requiring a runoff in the race for mayor starting in the 2023 city elections if no contender gets a simple majority of the votes cast.

“When she did that, I wasn’t expecting that at all,” Jones said. “But whatever shape it takes, I am open to the discussion.”

In past council discussions of the city primaries, Jones has argued the primaries would act as a form of a runoff election.

Some parts of state law refer to runoffs as nonpartisan primaries.

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“It’s something I think is worth discussing and contemplating,” Jones said. “There are some concerns — when you normally have a drop-off in voter participation in a runoff versus having a crowded field where someone wins with only 20% of the vote. I would favor a runoff.”

Parliamentary maneuvers

The council has a special meeting set for Sept. 1 to appoint someone to the vacant District 4 seat following the resignation of Chairwoman Jamita Swearengen to become Shelby County Circuit Court Clerk.

The official notice for that meeting says it is to make the appointment but also includes the wording “and further consideration of any other matters lawfully coming before the council which require action by said council.”

If Johnson changes her vote on the ballot question — amended or left as is — and council member Patrice Robinson votes for it, with all other “yes” votes remaining in place, the measure would have six votes toward a seven-vote majority.

Robinson was not in council chambers for the Aug. 9 final vote on the referendum.

That would make the deciding vote whoever the council appoints to Swearengen’s District 4 seat.

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Among those expected to vie for the appointment is Jana Swearengen-Washington, Jamita Swearengen’s sister, who is among the four-candidate field in the Nov. 8 special election as well.

If no candidate for the seat in the November ballot special election gets a majority of the votes cast, the top two contenders advance to a December runoff election.

There are also questions about whether the council has enough time, even if it has the votes, to get a referendum on the November ballot.

The council formally declared the District 4 council seat vacant immediately after Jamita Swearengen announced her resignation at the end of the Aug. 9 council session. And the council approved the declaration with “same night minutes” – a parliamentary move that effectively gives final approval of an action and sends the paperwork on without delay.

Council attorney Allan Wade advised the rapid action in order to get the special council race to election commission officials as soon as possible in order to complete the ballot.

A local history of runoffs

The seven single-member district council seats are the only offices in city or county government that require a runoff and a majority to hold the position.

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Shelby County government, since its 1975 restructuring that created the office of county mayor and turned the county quarterly court into the county commission, has never had a runoff provision.

The 1967 charter that created the city’s mayor-council form of government included a runoff provision for the mayor and council which was then balanced with seven single-member district seats and six at-large or citywide seats.

In a 1991 federal court decision, U.S. District Judge Jerome Turner abolished the runoff provision for mayor and abolished the at large council seats — both as unconstitutional.

In the case of the mayoral runoff provision, Turner held that the intent of those who drafted the city charter, approved by voters in 1966, was to make it impossible for a Black candidate to win citywide office given the majority white population of the city at the time.

Since then, the city’s population has become majority African American.

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Turner took a narrow approach to his ruling, leaving the runoff in place for the single-member council districts by saying none of the plaintiffs in the case sought to abolish the runoff requirement in those races.

He left it up to the council to structure a replacement for the at-large council seats, leaving in place a requirement for court review of whatever the council decided.

The council and the court approved replacing the at-large seats with two “super districts” that divided the city in half with three elected council positions in each of the super districts.

The council then under court order put the set of two super district races for six seats on the 1995 ballot for a charter change referendum.

Memphis voters approved the super district structure in November 1996.

The election backstory: Primaries

Partisan primaries are not allowed by the city charter and the federal lawsuit decided in 1991 did not challenge that provision.

Still to be determined is whether a return of a runoff provision for citywide office — even in the form of a partisan primary — requires going back to federal court for approval.

“It’s just my thought that we face a higher hurdle in order to get a court order for a consent decree changed or altered,” he said. “I would have done that in the first place if I didn’t think that the obstacles of getting it done were greater. … I still see that as possibly an uphill battle.”

What voters have decided in past referendums

If the primaries charter amendment — amended to a runoff requirement or in its original form — makes it to the Nov. 8 ballot, it would be the second proposed city charter amendment to go to Memphis voters this year.

In the August elections, Memphis voters defeated a proposal that would have extended term limits for the mayor and council members to three consecutive terms from two consecutive terms.

Jones proposed that too, but only for council members.

It was amended to include the mayor. Jones voted against it in that form.

The defeat of the ballot question means the 2023 race for Memphis mayor will likely be a race with a lot of contenders since there will be no incumbent.

The election backstory: Term limits

Mayor Jim Strickland, now serving his second consecutive term, said he would seek a third term if voters approved the term limits extension.

Voters did not do so for the second time in four years, putting to rest what could have been a much different 2023 race for mayor, probably with a smaller field of candidates.

Strickland upset incumbent Mayor AC Wharton in 2015 with 41.5% of the vote in a 10-candidate field.

Four years later in 2019, he won a second term with 62.1% of the vote in a 12-candidate field.

The same set of ballot questions in 2018 that included the first failed bid to extend city term limits to three terms also included a charter amendment that would have done away with the runoff requirements for the seven single-member district seats on the council.

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City voters voted it down, keeping the runoffs in place for the seven single-member districts.

They also defeated a charter amendment that would have done away with ranked-choice voting – a charter amendment approved by Memphis voters earlier.

Its implementation was delayed by touch-screen voting machine limitations as well as a lack of approval by state election officials.

Those two decisions by voters — to keep runoffs and to keep ranked-choice voting — seemingly kept conflicting provisions in the city charter.

The Tennessee General Assembly this past year approved a state law that bans the use of ranked-choice or instant runoff voting anywhere in the state.

In the same session, legislators lifted the state law banning partisan primaries in public school board races across the state effective with 2022 local elections.

The action allows local parties — Republican and Democratic — to hold school board primary elections if they choose to do so.

Shelby County was the only one of the state’s 95 counties where both local parties decided not to hold school board primaries in some form this election year.