A century ago, Tennessee lent her signature to the ratification of the Seventeenth Amendment, which altered how a United States senator was chosen from legislative appointment to popular choice.' Today, some political factions are calling for a complete repeal of the amendment, while others are taking smaller steps toward entrenching more power within state legislatures at the expense of the power granted to the voting public under the Seventeenth Amendment.
Tennessee is one state that has taken steps toward diminishing the role of the Seventeenth Amendment in the selection of United States senators. As introduced earlier this year, Senate Bill 0471/House Bill 0475 would remove the primary election as the method for determining the candidates for the general election and would replace it with legislative nomination. Under the bill, the members of the state legislature belonging to each party would choose the candidate for their respective parties.
Although there is little discernible case law directly addressing the constitutional protection of primary elections, it is likely that, by leaving the general election and the ultimate choice of United States senator in the hands of the public, the proposed Tennessee legislation will be valid under the Constitution. There is a chance, however, that the law will be struck down if submitted to judicial scrutiny, as it is in direct opposition to the underlying objectives of the Seventeenth Amendment and would remove a considerable amount of choice from the people by placing it in the hands of the state legislatures. While this would be considered desirable under the original text and intent of the Constitution, it would not uphold the spirit of the Seventeenth Amendment.
"The Constitutionality of Eliminating or Restricting U.S. Senate Primaries Under the Seventeenth Amendment,"
Tennessee Journal of Law & Policy:
3, Article 6.
Available at: http://trace.tennessee.edu/tjlp/vol9/iss3/6