State court asked to rule on abortion measure vote
State attorneys are asking a Williamson County judge to interpret language in the Tennessee Constitution that sets forth how votes for state ballot measures must be counted, a ruling that could impact a separate federal challenge against the 2014 abortion measure Amendment 1.
Eight voters, including the board chairman of Planned Parenthood of Middle & East Tennessee, filed suit in federal court in November 2014 shortly after the passage of the abortion measure. The voters challenged the way the state counted votes, saying their interpretation of the Tennessee Constitution is that voters who cast a vote in the ballot race, but did not also vote for governor, should not have their votes counted.
Amendment 1 stripped the right to an abortion from the Tennessee Constitution, passing with 53 percent of the vote.
Fight over abortion Amendment 1 heads to court
On Tuesday, the federal suit went before U.S. District Judge Kevin Sharp, who has yet to rule.
On Friday, Assistant District Attorney Janet Kleinfelter argued before Williamson County Circuit Judge Michael Binkley that it was up to a state court, not a federal court, to interpret the language of the Tennessee Constitution.
The constitutional language in dispute: Voters "shall approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor, such amendment or amendments shall become a part of this Constitution."
Kleinfelter said a plain reading of the language, legislative history and longstanding election practices make the language clear: Ballot measures must receive a majority of the votes for governor to pass, whether voters cast a vote for governor or not.
She said that any other reading also would violate the federal Constitution, by compelling voters to vote for governor if they wanted their votes counted for a ballot measure.
Binkley appeared sympathetic to those arguments.
"I wonder if we had, and this is a bad example, maybe, but if we had a Hilary Clinton and (Donald) Trump running for governor and I didn't want to vote for either one ... ," Binkley said, noting he had been criticized during his own election campaign from abstaining to vote in some elections in which he did not want to vote for either candidate. Would he be forced to if he wanted his vote counted on a separate ballot measure under the federal court plaintiffs' interpretation?
Dewey Branstetter, who represents the eight voters who filed the federal lawsuit, said the answer is "yes."
Branstetter asked Binkley to not rule on the question at all — or alternatively wait until U.S. District Judge Kevin Sharp had ruled in the federal case.
In that case, the plaintiffs argued that "no" votes for Amendment 1 were diluted because people consciously abstained from the governor's race to have their "yes" votes given more weight.
Branstetter also cautioned that, should Binkley rule in favor of the state's interpretation of the constitution, that a tangled legal scenario would surely play out, including appeals to the Tennessee Court of Appeals and the state Supreme Court — while federal court also could take action.
Under Branstetter's scenario, Sharp could then rule that the provision of the state constitution on vote counts violated the U.S. Constitution and set it aside in its entirety. That could potentially void not only the vote on Amendment 1, but on three other amendments approved by voters in 2014. That includes Amendment 2, which changed the way judges appointed by the governor are selected; Amendment 3, which forbids the state from passing a state income tax; and Amendment 4, which allows charitable gaming activities by veteran-supporting agencies.
Reach Anita Wadhwani at 615-259-8092 and on Twitter @AnitaWadhwani.
