CINCINNATI (CN) – A group of voters challenged the constitutionality of Tennessee’s voting procedures before the Sixth Circuit on Wednesday, specifically the passage of a 2014 constitutional amendment that eliminated protections and funding for abortions.
The abortion amendment was passed after the votes in favor of it exceeded a majority of the citizens who voted in the 2014 governor’s race, in accordance with Article XI, Section 3 of the state constitution.
In part, the amendment reads, “Nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion.”
The voters who brought suit against the state voted against the abortion amendment, and claimed in a federal lawsuit that all votes in favor of the amendment were counted regardless of whether those voters also voted for governor.
The lawsuit alleged the vote tabulation method was “part of a ‘coordinated scheme’ that ‘incentivized proponents of Amendment 1 to forego their own right to vote in the governor’s race so as to add ‘yes’ votes without increasing the number of votes needed to surpass a majority of votes cast in the governor’s race.’”
This scheme allegedly included flyers and church bulletins distributed by anti-abortion groups that encouraged voters to double their vote on Amendment 1 by casting a vote for the amendment, but not for governor.
The plaintiffs claim that the state’s voter turnout data “confirmed that as many as 76,000 votes in favor of Amendment 1 may have been improperly tabulated, which would result in Amendment 1 falling short of passage by 24,000 votes.”
U.S. District Judge Kevin Sharp denied Tennessee Gov. Bill Haslam and Secretary of State Tre Hargett’s motion to dismiss the suit, and ruled in April 2016 that the method used to tabulate the votes was unfair and that a recount was necessary.
Attorney Sarah Campbell, representing Haslam and Hargett, told a three-judge panel of the Sixth Circuit on Wednesday that the state “did exactly what the Tennessee constitution requires” when it tabulated the votes and passed the amendment.
She said there was “nothing fundamentally unfair” about the way the votes were counted and asked the federal appeals court to lift the injunction granted by the district court.
U.S. Circuit Judge Ronald Gilman asked about the anti-abortion “double your vote” campaign, and Campbell responded that opponents of the amendment also organized a campaign to encourage citizens to vote in the gubernatorial election.
Attorney Bill Harbison argued on behalf of the voters, and told the panel that the state’s tabulation methodology “enabled” the anti-abortion campaign and allowed “yes” voters to “change the denominator” and swing the results of the election.
Judges Gilman and David McKeague peppered Harbison with questions and seemed skeptical of his position.
“How is your vote diluted if the choice to vote for governor is a strategic decision?” Judge McKeague asked.
Harbison answered that his clients were not given a “corresponding opportunity” to change the denominator and were required to vote for governor to deny passage of the amendment.
“Wouldn’t it be compelled voting if you have to vote for governor to have your [amendment] vote count?” asked Judge Gilman.
Harbison admitted there is “tension” either way the state’s voting requirements are interpreted.
In her rebuttal, Campbell reminded the panel there were “no allegations of voter intimidation … or stuffing the ballot box,” and that even if a state law violation occurred, it does not rise to the level of “fundamental unfairness” required to plead a federal due process claim.
“It was a war of words,” Judge McKeague commented, when speaking about the opposing campaigns.
“It was democracy at work,” Campbell concluded.
U.S. Circuit Judge Richard Suhrheinrich rounded out the panel, which sat in front of a full courtroom that included at least 15 Amendment 1 supporters.
Some of the audience wore “Vote Yes on 1” buttons, while others – from StudentsforLife.org – wore matching t-shirts with the slogan, “I am the Pro-Life Generation.”
No timetable has been set for the court’s decision.