Judge denies request to dismiss lawsuit on abortion measure

The legal battle will continue over Tennessee's Amendment 1, with a federal judge on Wednesday denying the state's request to dismiss a lawsuit challenging the way votes were counted.

Amendment 1 passed with 53 percent of the vote on Nov. 4. The measure, which gives lawmakers more power to restrict and regulate abortion, was one of the most hotly contested in Tennessee's general election.

Vanderbilt law professor Tracey George, who also serves as board chair of Planned Parenthood of Middle & East Tennessee and was a coordinator of the Vote No on 1 campaign, filed suit along with seven other voters on Nov. 7, asserting that the state's vote tabulation methods were unconstitutional.

Attorneys for the state asked U.S. District Judge Kevin Sharp to either dismiss the lawsuit or turn it over to the state Supreme Court to consider, a motion he denied Wednesday.

At issue is language in the Tennessee Constitution describing how votes for amendments must be counted.

Unlike votes for candidates, where a simple majority of votes determines the winner, Tennessee's Constitution lays out a different process for amendment votes.

For an amendment to succeed, it must be ratified "by a majority of all the citizens of the state voting for governor, voting in their favor," the Constitution states.

State election officials interpreted this to mean that passage of an amendment depends on comparing the number of votes cast for governor with the number of votes cast for an amendment. To succeed an amendment must have garnered a majority of the number of votes cast for governor.

Those challenging the tabulation process say the constitutional language means that the state must count only the votes of those who cast ballots in both the governor's race and on the amendment to determine whether a majority of those casting votes in the governor's race also cast votes on the abortion amendment.

They are asking the vote be recounted or, if the state is unable to determine who cast votes both in the governor's race and on the amendment, that the vote be invalidated.

Since its passage, lawmakers have enacted two new abortion laws that take effect this week. One requires all abortion clinics that perform 50 or more abortions each year to be regulated as ambulatory surgical care centers. A second requires women seeking an abortion to receive in-person counseling by a physician and then wait 48 hours before undergoing the procedure.

A separate lawsuit challenging those new rules was filed by three Tennessee abortion clinics and one obstetrician-gynecologist challenging those laws. A federal judge on Friday issued a temporary injunction barring the state from enforcing the clinic regulation requirements at two of the state's clinics that currently do not meet those requirements.

U.S. District Judge Kevin Sharp is presiding over both cases.

Reach Anita Wadhwani at 615-259-8092 or on Twitter @AnitaWadhwani.