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.
U.S. District Judge Kevin H. Sharp granted the voters’ request for an injunction and recount in 2016 after he determined Tennessee’s voting laws required voters to cast ballots for governor in order to have their votes for constitutional amendments counted.
The case was argued before the Sixth Circuit last August, with attorneys Bill Harbison and Sarah Campbell representing the voters and the state, respectively.
In Tuesday’s opinion, a three-judge panel led by U.S. Circuit Judge David W. McKeague reversed the lower court’s decision and upheld the state’s vote-counting process as constitutional.
In dismissing the voters’ due process claims, McKeague wrote: “There is no basis in the district court record for finding that any particular plaintiff’s, or any particular voter’s, right to vote for or against Amendment 1, or right to vote for governor or not, was hindered or burdened (or even treated differently, for that matter) by any actions of the state officials.” (Parentheses in original.)
McKeague cited the state government’s dissemination of its vote-counting procedures through various media outlets prior to the election.
“State officials’ vote-counting method did not impair any voter’s freedom and ability to participate equally in the election,” the judge wrote.
The voters’ equal protection claims were also tossed by the Sixth Circuit judges, who ruled that the amendment’s supporters were entitled to attempt to influence the election by abstaining from casting a vote in the governor’s race.
“Plaintiffs’ arguments amount to little more than a complaint that the campaigns in support of Amendment 1, operating within the framework established by state law, turned out to be more successful than the campaigns against Amendment 1,” McKeague wrote. “That private-citizen supporters of Amendment 1 may have endeavored to lower the ratification threshold by refraining from voting for governor does not support a finding that state officials’ actions had the effect of ‘diluting’ the value of plaintiffs’ votes in opposition to Amendment 1.”
U.S. Circuit Judges Ronald Lee Gilman and Richard F. Suhrheinrich joined McKeague on the panel.
Tennessee Secretary of State Tre Hargett said in a statement that he was pleased with the Sixth Circuit ruling.
“This opinion confirms what we have known all along. Tennesseans should take pride in knowing their votes are counted in a fair, impartial and trustworthy manner,” Hargett said.
The voters’ attorney, Harbison, said his clients “are obviously disappointed in the result today.”
“We continue to believe in the bedrock principle of one person, one vote, and believe that the state’s ratification scheme coupled with certain actors’ unprecedented effort to manipulate a result violated that principle,” Harbison said in a statement. “We also believe in the due process rights guaranteed to all Tennesseans and are disturbed by the court’s seeming endorsement of the state’s legal maneuvering to circumvent a pending federal civil rights case.”