“If you vote ‘yes’ on 1, but don’t vote in the governor’s race, you’ll double your vote.”
These are the words of a video posted on a pro-Amendment 1 website prior to the midterm elections, instructing voters to skew voting procedures in their favor. By this reasoning, voters could lower the threshold of votes needed to pass the amendment and win with a smaller majority.
The highly-contentious amendment grants the state legislature more power to pass laws regulating and restricting abortion. When the polls closed on the night of Nov. 4, it was announced that Amendment 1 had passed with 52.61 percent of the vote.
In response, opponents of the anti-abortion amendment filed a federal lawsuit seeking to block the vote from being officially certified. The plaintiffs, ranging in background from law to medicine to religion, challenged the state’s vote tabulation procedures and brought the action against Governor Bill Haslam, Secretary of State Tre Hargett and other officials.
Specifically, the lawsuit claims the state was not in compliance with Article XI, Section Three of the Tennessee Constitution, which states once a proposed amendment has passed through the state legislature and citizens then “approve and ratify such amendment … by a majority of all the citizens of the state voting for governor,” the amendment will pass.
According to tn.gov, 1,385,178 Tennesseans voted on Amendment 1 – 728,751 in favor and 656,427 opposed – while 1,352,608 voted for a candidate in the governor’s race.
Tracey George, a professor of political science at Vanderbilt University and a litigator by training, began planning the lawsuit before the polls were even open.
“It was clear before the election that the state was planning not to follow the state constitutional requirement for how they should calculate votes,” George said.
To Will Brewer, a spokesman for Tennessee Right to Life, the lawsuit represents an attempt to circumvent the results of a fair election.
“We believe that, once again, abortion supporters in Tennessee are trying to take away the voice of the people and give it to unelected judges,” Brewer said.
According to the suit, the counting method violated the Equal Protection Clause of the Fourteenth Amendment by “diluting the votes on Amendment 1” of those who voted for governor. Conversely, the voters who chose not to cast a vote for governor had their voices “overvalued.”
“We’ve never had a year as we did this year where it was so apparent, both in terms of the (prior) planning and the results, that people were trying to increase the value of their vote on the amendment by not voting in the governor’s race,” George said.
Kenneth T. Whalum, Jr., a plaintiff in the case and a pastor at the New Olivet Baptist Church in Memphis, said the lawsuit is “an opportunity to truly determine the will of Tennessee voters.”
While George claims the Tennessee Constitution is “extraordinarily clear” on the required vote-counting methods, Blake Fontenay, communications director for the department of state, maintained that the Election Commission did not violate the law.
“It’s our stance that the lawsuit is not valid,” Fontenay said. “Our position is that whether or not you voted in the governor’s race, that doesn’t affect your eligibility to cast a ballot for the constitutional amendments.”
Richard Briggs, the seventh district’s newly-elected state senator, said the lawsuit becomes a “bigger issue” because it could call into question the amendments that have been passed since the 1953 Constitutional Convention.
“All of those could be invalidated,” Briggs said. “I think any court would then have to resolve that issue and that question too.”
George, however, said she doubts the suit by itself would have an effect on any previously passed amendment. Before Amendment 1, George said using the traditional form of voting tabulation was largely a “non-issue.” Instead, the concern was the large drop-off in votes between the governor’s race and the ballot initiatives.
While George recognized that re-evaluating the results of the vote on Amendment 1 would be difficult for the state election commission, she said she believes it is vital in such a close race.
“Calling it inconvenient implies that it’s a choice,” George said. “It’s not a choice. That would be like the legislature saying, well, we got really close, we were just one vote shy, so we’re going to let this amendment go on the ballot.”
Additionally, George noted state officials have not taken into account the absentee, provisional and military votes on the amendment, making the passage of the law unverified.
Whether the amendment stays in place or the lawsuit succeeds, Leticia Flores, associate director of the UT Psychological Clinic, said the conversation surrounding the amendment can only promote awareness of election procedures and the impact the law could have.
“I don’t know how successful the lawsuit will be, but I think it’s always good to ensure that processes are carried out fairly,” Flores said. “What is the popular saying? If you haven’t done anything wrong, you have nothing to worry about.”
The first hearing in the case is set for U.S. District Court in Nashville on Jan. 12.
