Tenn. pro-lifers hopeful despite court setback
Proponents of Tennessee Amendment 1 filed a motion in state court today (April 29) asking to be recognized as parties to the case. They want to be in position to tell Tennessee Supreme Court justices that voters who cast ballots for Amendment 1 but not in the governor's race will be disenfranchised if their votes are thrown out, as federal district judge Kevin Sharp ruled they should be April 22.
Amendment 1 was adopted by a 53-47 percent margin. Some 32,000 more people voted on Amendment 1 than voted for governor, according to The Tennessean. The amendment passed by nearly 72,000 votes.
Brian Harris, president of Tennessee Right to Life, told Baptist Press, "We are bringing to [state courts] the unique positions of voters who are being disenfranchised, whose votes are being thrown out simply because they are following what has been the same process for the passage of every other amendment, as they understood it."
At least two issues are central in the complex legal proceedings surrounding Amendment 1:
-- How to interpret the Tennessee Constitution's requirement that all constitutional amendments be "approved and ratified" by "a majority of all the citizens of the state voting for governor."
-- Whether the Tennessee Constitution, as traditionally interpreted by state officials, violates the federal Constitution.
Regarding Tennessee's Constitution, Sharp argued the "perfectly natural" and "correct" reading includes stipulating that only citizens casting ballots in the governor's race may vote for or against a constitutional amendment -- a position shared by the case's pro-choice plaintiffs, one of whom is chair of the board for Planned Parenthood of Middle and East Tennessee.
In contrast, the state argued according to Sharp's ruling that to ratify an amendment, it "must get more 'yes' votes than 'no' votes" and "the number of 'yes' votes must be a majority of the votes cast in the gubernatorial election," regardless of whether individual amendment supporters cast votes in the governor's race.
Tennessee counted votes and determined the amendment passed according to that standard.
Sharp, who was appointed by President Obama, acknowledged "there is no evidence before the Court" that any other method has been used by the state since 1953, when the gubernatorial election-based standard was adopted.
Still, Sharp said the interpretation he espoused is "clear," the state's longstanding method of counting is incorrect and the result is a violation of both the Tennessee and federal constitutions.
In a separate case, a state judge ruled April 21 that Tennessee followed the proper counting procedure surrounding Amendment 1, The Tennessean reported.
Daniel Horwitz, an attorney representing the Yes on 1 Ballot Committee, told BP the Tennessee Supreme Court has "final, unreviewable authority" over interpretation of the state constitution. "It's purely a question of state law, and the Tennessee Supreme Court will be the final authority on that question. It is not subject to any subsequent review in federal court."
Harris said at least four of the five Tennessee Supreme Court justices seem likely to side with Amendment 1 supporters.
Regardless of the correct interpretation of the Tennessee Constitution, Sharp argued, Tennessee's vote-counting method violated Amendment 1 opponents' rights of due process and equal protection under the law. Their votes, he wrote, "were not given the same weight as those who voted for Amendment 1 but did not vote in the governor's race."
Some Amendment 1 supporters encouraged voters to cast ballots for the amendment and not vote for governor, Sharp noted.
Harris, of Tennessee Right to Life, said leaders of the official Yes on 1 campaign never advocated sitting out the governor's race, though he acknowledged at least one "grassroots supporter" inserted that advice into a Nashville Catholic church's bulletin without approval from the campaign's leadership.
"Our campaign was called 'Yes on 1,'" Harris said. "It wasn't 'Yes on 1, don't vote for the governor.'"
As a result of both legal considerations, Sharp ordered a recount on Amendment 1 with the votes discarded of all individuals who did not vote in the governor's race.
Tennessee Attorney General Herbert Slatery filed an appeal to the Sixth U.S. Circuit Court of Appeals April 26.
Horwitz said he is "very confident" Sharp's claim that Tennessee's Constitution violates the federal Constitution "will not stand up to review in the Sixth Circuit." He likewise expressed confidence the state Supreme Court will disagree with Sharp's interpretation of the Tennessee Constitution.
Horwitz added in a news release, "The right to vote is precious, and Amendment 1 supporters who were just stripped of their right to vote as a consequence of Judge Sharp's ruling deserve a voice in this proceeding. We strongly believe that the Tennessee Constitution does not compel voters to vote for candidates whom they do not support in order to be allowed to exercise their right to vote on constitutional amendments."