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Judge Orders Recount of Tennessee Vote That Opened Floodgates for Anti-Choice Laws

Teddy Wilson

At issue in the challenge of the election results is Article XI, Section 3 of the Tennessee Constitution, which states that amendments must be approved by a “majority of all the citizens of the state voting for Governor.”

A federal judge on Friday ordered a recount of Tennessee’s ballot measure known as Amendment 1, which was approved by voters in November 2014 and has led to a slew of anti-choice measures passed by the state’s GOP-majority legislature.

At issue in the challenge of the election results is Article XI, Section 3 of the Tennessee Constitution, which states that amendments must be approved by a “majority of all the citizens of the state voting for Governor.”

U.S. District Judge Kevin Sharp ruled the method the state used to count votes for the amendment was “fundamentally unfair” and violated due process and equal protection rights for voters under the U.S. Constitution.

“Plaintiffs voted for governor and against Amendment 1. 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,” Sharp wrote in a 52-page opinion. “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.”

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According to the Tennessean, eight voters who voted against Amendment 1 filed a lawsuit challenging the vote just days after the election. They claimed that the vote tabulation violated their rights because state election officials improperly counted the votes without first establishing whether each “yes” voter met the law’s threshold requirement of also having voted for governor.

Prior to the vote, local media reported cases of voters receiving misleading information about the amendment and voting machine irregularities.

The ballot measure amended the state constitution to permit state lawmakers to pass legislation restricting abortion access. Specifically, the anti-choice amendment states that nothing in the state’s constitution “secures or protects a right to abortion or requires the funding of an abortion,” and that Tennessee lawmakers are permitted to “enact, amend, or repeal statutes regarding abortion.”

Since the passage of Amendment 1, state lawmakers have passed a bill requiring abortion clinics meet the standards of an ambulatory surgical center (ASC). That requirement is medically unnecessary. Tennessee Republicans also led the charge in passing a bill creating a forced 48-hour waiting period for people seeking an abortion.

Legislators have introduced several other bills to restrict reproductive rights since the passage of Amendment 1.

The 2014 election was the first time since Article XI, Section 3 of the Tennessee Constitution was amended in 1953 that more votes were cast on a proposed constitutional amendment than in the gubernatorial election, according to court documents finding of facts.

Sharp ordered the state to re-tabulate the votes to count only those votes on Amendment 1 that were cast by voters who also voted in the governor’s race.

Amendment 1 was passed with 54 percent of voters approving the measure. There were 32,627 more votes cast on Amendment 1 then there were cast in the gubernatorial election, and Amendment 1 was passed by a margin of 71,971.

State election officials have 20 days to submit a proposed recount timeline for the court’s approval.

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