Tennessee is known for taking a stricter line on immigration enforcement than many other US states. Now it has taken a step that has  raising the alarm: threatening a minimum of one year in prison for lawmakers who vote the so-called wrong way on  policy.

In January, the state general assembly passed legislation, by about a three-to-one majority, to make it a felony for a local lawmaker, such as a school board member or a city councilperson, to vote affirmatively on a local ordinance that adopts any “sanctuary city” policy of noncompliance with federal immigration law enforcement officials.

The new law does not distinguish cases where a local measure is adopted or not, nor does the enforceability of the local ordinance matter. This crime of voting would be punishable by at least one year in prison – and as many as six years – as well as a fine and removal from office “as soon as practicable”.

Representative Chris Todd, the chair of the immigration committee in the  house and a Republican from western Tennessee, argues that the legislation authentically represents the will of voters across the state.

“We wanted to make sure that we drove a stake in the ground and said, at least on this issue, ‘This is not going to be a law that you’re going to be able to circumvent, or tie up in court,’ or anything like that. This is going to be serious, and we want to make sure that that’s very clear.”

But making a local vote an imprisonable offense is a new line in the war conservative legislatures have been waging on wayward progressive municipalities.

The prospect of a class C felony charge and prison time for voting the wrong way raises questions about how local leaders can – or should – stand up for their beliefs as they defend democratic dissent, said the Knoxville councilperson Seema Singh.

“It feels like I’m getting orders from above to cooperate on things that I think are morally incorrect,” she said.

“Do I step aside? Do I speak up? Do I get arrested? Do I quietly finish my term?”

Tennessee has one of the most -dominated legislatures in the country, and increasingly uses that political power to  progressive resistance.

Outside of Memphis and Nashville, Tennessee has few municipal governments with enough progressive elected officials to even consider a local ordinance bucking the state’s conservative ideology on immigration.

None have tried since Nashville debated it in 2018, prompting outraged state legislators to ban the idea entirely.

So, why bother criminalizing local legislation? Perhaps, to demonstrate that they can.

### ‘Nothing more than fascism in disguise’

During a legislative hearing in January, opponents of the bill did not sugarcoat their opinions about what is happening in Tennessee.

“While I understand the concerns of this bill and what it tries to do,” said Aiden Pratt, an 18-year-old student addressing the bill in committee, “this bill is nothing more than fascism in disguise.”

That comment prompted Monty Fritts, a Republican representative from a suburban Knoxville district, to challenge the speaker.

“I can’t find that word, fascism, anywhere in this bill,” he said. “This bill is simply intended to establish an interface so that the state of Tennessee can be part of the solution to this illegal invasion that we’ve suffered under for some years now.”

Fritts subsequently co-sponsored legislation to allow local public schools to refuse to enroll students who are unlawfully present in the United States. If that bill were to pass into law, it would directly challenge Plyler v Doe, a landmark 1982 US supreme court ruling that established a constitutional right to education for undocumented children.

According to Todd, the immigration committee chair, criminalizing local legislation in conflict with state law saves taxpayers money in later litigation, Todd said. And it affirms that state laws pre-empt local laws, he added.

### ‘It’s a very slippery slope’

The provision to imprison wayward local lawmakers may face constitutional hurdles, said Matthew Mundy, a legislative attorney from the office of legal services of the Tennessee general assembly.

“We have the speech and debate clause in the federal and the state constitution that protects legislators and gives them legislative immunity,” Mundy told lawmakers during legislative debate on the bill. “There’s also a common law immunity for deliberative bodies and that has been determined by the courts to apply to lesser legislative bodies such as regional boards, city councils, county commissions. And so, I think that that could be potentially problematic if you tried to apply the criminal penalty to those types of local officials.”

Those local officials have taken a dim view of the bill.

“In terms of any future impact – if signed – I think it’s a very slippery slope that could be seen as violating the first amendment of the US constitution,” said Michael Whaley, a Memphis city council member. “Elected officials, like any American, should be free to vote how they wish, regardless of who agrees with them.”

Addressing a media roundtable after the bill passed, the director of the metro department of law for the city of Nashville, Wally Dietz, said: “It would be an understatement that we have concerns about the constitutionality of those provisions. They appeared to violate hundreds of years of law – both common law and constitutional law. I am in active negotiations with other parties, attorneys, and we are considering all options.”

The Tennessee ACLU’s immediate response to the bill’s passage was to say, simply: “See you in court.”

Jailing lawmakers isn’t about preventing sanctuary city legislation; it’s about criminalizing dissent, civil rights leaders say.

“Sanctuary cities are already banned in the state of Tennessee, and so this is really just a grandstanding effort by the legislature and the governor,” said Lisa Sherman Luna, the executive director of the Tennessee Immigrant and Refugee Rights Coalition. “But it’s deeply alarming, because it erodes our democracy, even if they don’t intend to pursue it and charge anybody with a felony. It’s a dangerous step towards authoritarianism.”

### ‘Everyone has hidden inside’

Many of the lawmakers on the frontline of the debate over the state’s immigration policy are from the Knoxville area in eastern Tennessee.

Knoxville is a city of about 200,000 on the edge of Appalachia, resolutely middle class, politically moderate and known for its American civil war history. Though almost all of its elected officials are , the city isn’t exactly a blue dot in a red sea, said Singh. The county gave Trump a narrow majority of its votes.

Singh says that against a backdrop of these legislative arguments, there is palpable fear in the immigrant community in Knoxville. Singh is a therapist when she isn’t helping make policy. Many of her clients are Indian. And increasingly, they have stopped making appointments, she said.

“Everyone kind of has hidden inside,” she said.

The speed with which things seem to be changing paralyzes reaction, she said.

“It makes me feel like – and I don’t mean to exaggerate, but it might be time – when people in Poland and Germany thought everything is good, and yet all this horrible stuff is happening in a different place,” she said, referring to the Holocaust unfolding out of sight. “It just hadn’t touched them yet.”
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