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Lawsuit Challenges Votes for Tennessee’s Anti-Choice Amendment 1

Jessica Mason Pieklo

A federal lawsuit claims election officials improperly counted ballots of those who voted in favor of Amendment 1 but abstained from casting a vote in the gubernatorial election.

Read more of our articles on the Tennessee ballot initiative here.

A lawsuit challenging the way election officials tabulated the votes for Tennessee’s anti-choice Amendment 1 could jeopardize conservative lawmakers’ plans to begin aggressively rolling back reproductive rights in the state.

At issue in the lawsuit, filed last week in federal court, is the meaning of Article XI, Section 3 of the Tennessee Constitution. That section deals with approving constitutional amendments and reads, “[t]he 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 a part of this Constitution.”

According to the plaintiffs, each of whom cast a no vote on Amendment 1 and voted for governor, state election officials improperly counted the votes on Amendment 1 without first establishing whether each “yes” voter met the law’s threshold requirement of also having voted for governor.

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Essentially, the plaintiffs claim that only the votes of people who voted in the gubernatorial election should be tabulated in the amendment referendum. Several sources, including a program from a Nashville Catholic church, directed supporters of Amendment 1 to inform fellow supporters that not voting in the governor’s race and casting a “yes” vote for the amendment will effectively “double” their vote by lowering the number of votes cast in the governor’s race.

“In this misguided scheme, voters in favor of Amendment 1 intentionally voted for Amendment 1 while declining to participate in the governor’s race,” the lawsuit says. “The apparent intent was to add ‘yes’ votes without increasing the number of votes needed to surpass a majority of votes cast in the governor’s race.”

Using this improper tabulation method, the plaintiffs charge, state officials improperly determined that Amendment 1 unofficially passed.

“Based on the published unofficial totals made available by Defendants, there is no way to determine whether voters who voted in favor of Amendment 1 had also, as required by the state constitution, voted in the governor’s race,” the complaint alleges. “Without Defendants’ revealing records indicating that at least a sufficient number of voters voted both in favor of Amendment 1 and for governor, such confirmation is impossible.”

Bill Harbison, an attorney representing the plaintiffs, said the unofficial vote totals show that the number of voters on Amendment 1 was substantially larger than the number of voters in the governor’s election, which calls into serious question the validity of the vote tabulation.

State election officials have not yet certified the results in the Amendment 1 vote, which means as of now, Amendment 1 is not in effect.

Despite the fact that the results in the Amendment 1 vote have not yet been certified, anti-choice lawmakers in the state announced plans to proceed with a host of abortion restrictions, based in part on the presumed ratification of Amendment 1. Those legislative efforts, Harbison said, are premature.

“The lawsuit doesn’t affect what the legislature does directly,” he said, “except that it calls into serious question whether the amendment should become part of the constitution. If the amendment is not part of the constitution and they are basing bills on the validity of the amendment, they may not be valid.”

The lawsuit names as defendants Gov. Bill Haslam in his official capacity, Tennessee Secretary of State Tre Hargett, the Coordinator of Elections Mark Goins, Tennessee Attorney General Herbert Slattery III, and members of the State Election Commission.

The plaintiffs want a declaration from the court that Article IX Section 3 of the Tennessee Constitution requires that only voters who voted for governor may have their votes on Amendment 1 counted to determine whether the amendment is ratified, along with an injunction preventing the state from certifying the vote on Amendment 1 and a declaration that the vote on Amendment 1 in the November 4 election is invalid.

State officials have not yet responded to the complaint.

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