Federal judge orders recount of 2014 abortion ballot vote
A federal judge has ordered a recount of Tennessee's controversial 2014 abortion measure Amendment 1.
U.S. District Judge Kevin Sharp on Friday declared the method the state used to count votes for the amendment "fundamentally unfair" and in violation of due process and equal protection rights for voters under the U.S. Constitution.
The "no" votes of the eight plaintiffs "were not accorded the same weight" as those who voted in favor of the amendment, the judge concluded.
"As a remedy, the Court will order a recount of the 2014 Election solely in relation to Amendment 1, but defer ruling on the question of whether the election on Amendment 1 should be voided," the 52-page ruling said. The ruling does not apply to three other amendments on the ballot in 2014.
The ruling orders state election officials to re-tabulate votes to count only those votes on Amendment 1 that were cast by voters who also voted in the governor's race.
A recount is possible for 94 of 95 counties, which have kept the election data. A fire in 2015 destroyed a county administration building in Van Buren County, destroying all the election machines. Sharp noted in his order that Van Buren has a small voter population.
The judge gave election officials 20 days to submit a proposed recount timeline for the court's approval.
Judge upholds vote count on Tennessee abortion ballot measure
Amendment 1 passed with 53 percent of the votes in November 2014. The measure expressly removed the right to an abortion from the Tennessee Constitution. Its passage has led to new regulations of abortion clinics and a 48-hour waiting period for women seeking an abortion.
Eight voters opposing the measure filed a federal suit within days of the election, claiming the vote tabulation method used by the state violated their rights under the U.S. Constitution.
The eight include the board chair of Planned Parenthood of Middle & East Tennessee, an obstetrician/gynecologist, a social worker, a pastor, a registered nurse, a volunteer coordinator for Meals on Wheels and a former Sumner County director of public health.
On Friday, one of their attorneys, Dewey Branstetter, said they were "gratified" by the judge's ruling.
“When we filed this lawsuit, we believed it was important not just for the eight plaintiffs, but for the voters of Tennessee," he said. "We are gratified that the Federal Court has agreed with our contention that the State’s method of counting the votes on Amendment 1 violated our clients’ constitutional rights.”
A spokesman for the secretary of state referred a request for comment to the attorney general. A spokesman for the attorney general, which defended the lawsuit, did not respond.
Brian Harris, president of Tennessee Right to Life, said the vote counting method for the abortion measure was “followed in the exact way as every other amendment approved by the voters of our state.”
"Having wasted millions of dollars trying to defeat Amendment 1 at the polls, Planned Parenthood is now asking the federal courts to do their dirty work and to steal the votes of hundreds of thousands of Tennesseans who voted yes on 1,” Harris said. “That's neither right nor fair and we remain confident that the will of the people will ultimately be upheld.”
At issue is the language in Article XI, Section 3 of the Tennessee Constitution on how votes for an amendment are counted, which says:
"And if the people 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 part of this Constitution."
State election officials have long interpreted the language to mean that for an amendment to succeed, it must garner a majority of the votes cast for governor, regardless of whether the same individuals voted for both governor and an amendment. The plaintiffs argued only people who voted for governor should have their votes counted for or against the amendment.
The "seemingly simple sentence is subject to two different readings," Sharp wrote.
But he concluded the language "suggests only one interpretation — voters must vote for governor in addition to voting on a proposed amendment."
"In this case, Plaintiffs voted for governor and against Amendment 1," he wrote. "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."
By abstaining from the governor's race and voting for the amendment, backers of Amendment 1 could lower the number of votes needed for it to succeed — because its success depended on getting more than half the number of votes cast in the governor's race.
"This is because the way the votes were counted; voters who did not vote in the Governor's race but who voted on Amendment 1 effectively lowered the requisite threshold passage of Amendment 1. Conversely, an opponent of Amendment 1 ... was compelled to vote in the Governor's race in order for his or her vote to have an impact" on the amendment vote count.
The order cited campaign strategy by some abortion opponents who urged voters to abstain from voting for governor, saying it would "double your vote" for the abortion measure.
Judge upholds vote count on Tennessee abortion ballot measure
The federal judge's ruling comes one day after Williamson County Circuit Judge Michael Binkley concluded that the state followed proper vote counting procedures set forth in the Tennessee Constitution.
Sharp wrote that Binkley's ruling has no impact on his decision.
Binkley's "recent determination as to how Article XI, Section 3 should be applied going forward does not address the question of whether its application in the 2014 Election violated the United States Constitution."
Binkley's ruling was not based on the federal constitution, but rather the state's, Sharp wrote.
Reach Anita Wadhwani at 615-259-8092 and on Twitter @AnitaWadhwani.
The 2014 vote
1,353,728 votes were cast for governor.
1,386,355 votes were cast on the Amendment 1 measure, with 729,163 in favor and 657,192 votes against.
Amendment 1
Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
