In the media coverage of this month’s Aston by-election there were occasional references to the fact that the only previous occasion of the government winning an opposition seat at a by-election, in 1920, came after the expulsion of the sitting member, Hugh Mahon, for his outspoken opposition to British imperialism in Ireland.
That expulsion, carried 34-17 on a party vote, is generally regarded as having been an abuse of parliament’s powers. It has never been repeated, and (unless the law is changed) cannot now be repeated: the Parliamentary Privileges Act 1987 removed the power of expulsion. But other legislative bodies often retain such a power as an ultimate disciplinary sanction.
As does, for example, the state House of Representatives in Tennessee, which last week voted to expel two of its members, Justin Jones and Justin Pearson, for their participation in a protest in support of gun control that had interrupted proceedings in the legislature. A motion to expel a third member, Gloria Johnson, for the same protest fell just short of the required two-thirds majority.
This exercise of power by the Republican majority – the three members concerned are, of course, all Democrats – has been widely condemned. It is the first partisan vote on an expulsion since the 1860s. But it also looks like being ineffective. Both members sit for safe Democrat seats, having been elected unopposed last year; there is no doubt that their districts will return them to the House when by-elections are held later this year.
In fact, they don’t even have to wait that long. Tennessee’s constitution provides that in the case of a vacancy, the county legislative can appoint a member temporarily pending a by-election. So on Monday the metropolitan council of Nashville and Davidson county reappointed Jones, and two days later the Shelby county board of commissioners reappointed Pearson.
So can the state House Republicans just expel them again? Interestingly, no; article II, section 12 of the Tennessee constitution says that each house may “expel a member, but not a second time for the same offence.” So there is no prospect of Tennessee repeating the famous proceedings against John Wilkes in 1769, when the House of Commons expelled him four times in succession – on the final occasion amending the return to seat his opponent instead, even though Wilkes had defeated him at the by-election by almost four to one.
The racial subtext of the Tennessee proceedings is unmistakable. Jones and Pearson are both black; Johnson, who survived, is white, as of course are almost all of the Republicans. Michael Harriot in the Guardian yesterday links the case to the long and often violent history of racial voter suppression in the US. “The weaponization of white power,” he says, “is a poltergeist that has haunted every significant political decision ever made.”
Unfortunately Harriot gilds the lily when he refers to the 1869 case of White v. Clements, saying “the Georgia supreme court ousted Chatham county’s Black superior court clerk Richard W White from office. … Votes didn’t matter. All that mattered was whiteness.” If you follow the link to the judgement that he helpfully provides, it actually says the opposite. By a 2-1 majority, the court overruled the trial judge and held that “colored” people were eligible to hold office in Georgia.
It was a short-lived victory; the white supremacists soon regained control. But it showed that for a time at least there were people willing to make a stand for democracy. In the words of Justice McCay:
The exercise of the duties of an office is not in this country as it often was in England, a privilege of the office-holder. Our theory is that offices exist for the public good, and it is the duty of one called upon to choose, to select such as all the facts show to be the most fitted. Every restriction on this power is a restriction on the rights, the natural rights, of the voter …
The Tennessee legislature could do worse than take his words to heart.
PS (20 April): And despite me pointing it out to them a week ago, the error in the Guardian article is still there.
Update 24 April: The Guardian has now (sort of) fixed the article and added a footnote, and sent me a thank-you note.