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VOL. 131 | NO. 83 | Tuesday, April 26, 2016

2014 Abortion Amendment Recount Ordered

By Bill Dries

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Almost two years after Tennessee voters approved an amendment to the Tennessee Constitution limiting abortion access, a federal judge in Nashville has ordered a recount of the vote – not a new vote but a recounting of the 2014 election returns.

The ruling, released late Friday, April 22, is the latest chapter in a legal dispute that is almost certain to be appealed to the Sixth Circuit Court of Appeals.

Yet, it doesn’t appear the recount will change the outcome.

The issue is how to read the part of the Tennessee Constitution that establishes how that constitution is amended.

It reads that the vote for an amendment that is approved must be “by a majority of all the citizens of the state voting for governor, voting in their favor.”

State election officials said that doesn’t mean those who voted yes or no on the amendments had to vote in the race for governor in order for their votes to count on the amendments.


But U.S. District Judge Kevin H. Sharp ruled Friday that votes on the November 2014 abortion amendment, which removed any recognition of a woman’s right to an abortion from the state’s constitution, only count if the voters on that question also voted in the race for governor.

Sharp ruled the state’s method of counting the referendum votes, regardless of whether those voters made a choice in the governor’s race, is “fundamentally unfair” and violates due process and equal protection rights in the U.S. Constitution.

“If the real goal is in fact to prevent certain interest groups from exerting undue influence, then it may have failed in the 2014 election on Amendment 1,” Sharp wrote. “In any event, when the state interest is weighed against the burden placed on plaintiffs’ right to vote in a meaningful manner, the court finds that the selected method utilized by defendants violated plaintiffs’ 14th Amendment rights.”

Sharp wrote that whatever the different interpretations of the clause in the Tennessee Constitution are, the result of the vote count was a violation of the U.S. Constitution.

He also cited numerous instances across various methods of campaigning, from church bulletins to leaflets that supporters of Amendment 1 used specifically to urge those voting for the amendment to not vote in the race for governor in 2014. That included a video titled “Double Your Vote on Amendment One.”

He noted that plaintiffs in the federal court challenge, including Rev. Kenneth T. Whalum Jr. of Memphis, voted in the governor’s race and voted against Amendment 1.

“Their votes, however, were not given the same weight as those who voted for Amendment 1, but did not vote in the governor’s race,” Sharp wrote. “A vote on Amendment 1 from anyone who voted for governor, regardless of whether the vote was for or against Amendment 1, had less value than a vote for Amendment 1 from someone who did not vote for governor.”

Sharp said the evidence he reviewed on the intent of the 172-year-old provision is “conflicting at best” and the evidence presented by the state specifically about the state’s 1953 constitutional convention was “far from conclusive.”

Nevertheless, Sharp noted that the state has used the standard it defended in court to determine whether amendments to the state constitution became law “at least since 1995 and likely for long before then.”

“There was no effort to correlate the votes to count only votes on an amendment that were cast by voters who voted for governor,” Sharp wrote.

Amendment 1 passed statewide by a margin of 71,971 votes.

The Amendment 1 referendum drew 32,627 more votes – yes and no – statewide than the general election race for governor.

If all 32,627 of those votes in the Amendment 1 referendum were not counted and if all of them were votes against the proposal, it would still pass, with a total of 696,536 votes.

That total would be 19,971 over the simple majority hurdle that Sharp’s ruling leaves in place.

In Shelby County, Amendment 1 was voted down by a margin of 48,180, according to audited election results certified by the Shelby County Election Commission.

The Amendment 1 referendum drew 1,236 more voters – yes and no – in Shelby County than the general election race for governor.

That means even if all 1,236 votes were yes votes, it would not change the outcome in Shelby County in a recount.

Tennessee Gov. Bill Haslam easily won a second term over Democratic nominee Charles Brown, whose candidacy was disowned by the state Democratic Party.

The only other statewide race on the ballot was U.S. Sen. Lamar Alexander’s re-election bid, which Alexander won, defeating Democratic nominee and challenger Gordon Ball – even in majority Democrat Shelby County.

Sharp didn’t order a new vote on Amendment 1, instead ordering a recount in 94 of the state’s 95 counties. Van Buren County’s election records and machines were destroyed in a 2015 fire.

Sharp specifically denied the plaintiffs’ argument that the article on amending the state constitution be declared in violation of the U.S. Constitution. He also denied a request to void the results of the 2014 election at least for now.

The state has 20 days to come up with a time line for the recount process.

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