Category Archives: constitutional amendments

Judge halts recount of Amendment 1 vote

A federal judge has ordered a halt to a vote recount on the controversial abortion measure, Amendment 1, pending an appeal by state election officials.

Further from The Tennessean:

U.S. District Judge Kevin Sharp, who ordered the recount in April, issued the stay on Tuesday at the request of Tennessee election officials who are appealing his decision the U.S. Court of Appeals for the 6th Circuit.

Sharp cited the potential price tag of a recount to Tennessee taxpayers — approximately $1 million — in issuing his order.

Should the Court of Appeals overturn his order, it “raises the possibility that public money may be spent on something which turns out to be unnecessary,” Sharp wrote.

Amendment 1 passed in November 2014 with 53 percent of the vote. The measure was among the most controversial in Tennessee history and stripped the right to an abortion from the state constitution.

Eight voters, including the board chair of Planned Parenthood of Middle & Eastern Tennessee, filed suit within days of its passage, claiming the method state election officials used to count the vote was fundamentally unfair and gave more weight to “yes” votes than “no” votes.

Cost of abortion vote recount put at $1M

Election officials estimate the total cost to taxpayers of a court-ordered recount of Amendment 1, the 2014 abortion ballot measure, could be $1 million, according to The Tennessean.

But lawyers for the state are asking U.S. District Judge Kevin Sharp to allow election officials to postpone any recount while they appeal his ruling.

Requiring county election officials to go through a recount process while preparing for upcoming state, local and federal elections in August and November would be “disruptive” and “interfere with the integrity of those elections,” election officials argued in declarations submitted to the court earlier this month.

In April, Sharp ordered a recount of the state’s controversial ballot measure, calling the method used to count votes “fundamentally unfair” to voters opposed to the measure.

Amendment 1 passed with 53 percent of the vote. The measure specifically removed the right to an abortion from the Tennessee Constitution. Its passage has led to new regulations of abortion clinics and a 48-hour waiting period for women seeking an abortion.

Within days of the election, however, eight voters opposed to the measure, including the board chairman of Planned Parenthood of Middle & Eastern Tennessee, filed suit, claiming the vote tabulation methods used by election officials violated their rights under the U.S. Constitution — and was contrary to language in the Tennessee Constitution that explains how votes for ballot measures should be counted.

Sharp’s order required election officials to count only those votes for or against the amendment that were cast by voters who also voted in the governor’s race.

Unlike a simple majority required for a candidate to succeed, the Tennessee Constitution requires amendments to pass by a majority of the votes cast in the governor’s race.

Sharp concluded that the language in the Tennessee Constitution require voters to vote in both races in order to have their votes counted for or against an amendment.

AG appealing recount of votes on Amendment 1

The Tennessee Attorney General’s Office will appeal a federal judge’s order for a recount of votes on the controversial 2014 abortion measure Amendment 1. reports The Tennessean.

“We obviously disagree with the federal court’s decision,” spokesman Harlow Sumerford said. “Simply put, deciding what vote is required to amend the Tennessee Constitution is a matter of state law to be determined by a Tennessee court.”

The appeal effectively puts any potential recount on hold – likely for months as it goes through the appeals process at the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, according to Dewey Branstetter, an attorney with Sherrard, Roe, Voigt, Harbison who is representing eight voters seeking the recount. Branstetter said the appeal was not unexpected.

“While we’re not terribly surprised that they would file an appeal, it is disappointing they would continue to litigate this case when (the federal judge) has so clearly determined how this portion of the constitution should be interpreted and how the state’s interpretation would violate our clients constitutional rights,” Branstetter said.

Amendment 1 removed abortion as a right under the state constitution.

On Friday, U.S. District Judge Kevin Sharp ordered state election officials to recount the vote on the abortion measure, which passed with a 53 majority in 2014. Sharp said the state’s vote counting methods were unfair to those opposed to the amendment and in violation of the U.S. Constitution.

Lawyer: Abortion amendment likely to be invalidated

By Sheila Burke, Associated Press
NASHVILLE, Tenn. — An amendment to the Tennessee Constitution that would place greater restrictions on abortions is likely to be tossed out now that a judge has ordered a recount of the 2014 ballot approving it, the lead plaintiff in a federal lawsuit challenging the results said Monday.

Fifty-three percent of voters approved Amendment 1 in November 2014. Last week, however, a federal judge ordered a recount after finding that the method used to tabulate the votes was fundamentally unfair to those who opposed the amendment. U.S. District Judge Kevin Sharp said the votes were tallied in favor of abortion opponents.

The federal ruling came a day after a state court judge found in favor of the way Tennessee counted the ballots.

In his ruling, Sharp cited language from the Tennessee Constitution that said an amendment is ratified by a “majority of all citizens of the state voting for governor.”
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Federal judge orders recount of Amendment 1 voting

By Sheila Burke, Associated Press
NASHVILLE, Tenn. — A federal judge on Friday ordered a recount of votes on a 2014 amendment to the Tennessee Constitution that made it easier to put restrictions on abortions.

U.S. District Judge Kevin Sharp ruled that the method used to tabulate the votes on the amendment was “fundamentally unfair” to the eight Tennesseans who filed a lawsuit challenging the election results. Those who sued maintained that the state incorrectly interpreted the way the votes should be counted and tallied them in favor of abortion opponents.

“At issue,” Sharp’s ruling says, is the language in a 172-year-old sentence that says an amendment will become part of the state constitution “if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor.”
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Judge rules votes correctly counted on Amendment 1

a Williamson County judge on Thursday has ruled against contentions that ballots were incorrectly counted in the 2014 statewide referendum on an amendment to the Tennessee constitution that made it easier for the legislature to enact abortion restrictions.

From The Tennessean report:

Eight voters opposing the measure, including the board chair of Planned Parenthood of Middle & Eastern Tennessee, filed suit in federal court contesting the state’s method of counting votes.

State lawyers, in turn, filed suit against those eight voters in a Williamson County court in September 2015, two months after a federal judge refused their request to dismiss the suit. The state in the Williamson County suit sought an order stating that Tennessee election officials’ method of counting votes was consistent with the state constitution.

In his 22-page order on Thursday, Circuit Court Judge Michael Binkley granted the state the order it was seeking. Binkley noted the language Tennessee Constitution on how votes for amendments should be counted is “unambiguous.”

Under the Tennessee Constitution, ballot measures require a different voting method than the simple majority required to elect a candidate. For an amendment to succeed, it must be ratified “by a majority of all the citizens of the state voting for governor, voting in their favor,” the Constitution says.

State election officials have long interpreted the language to mean that passage of an amendment depends on comparing the number of votes cast for governor with the number of votes cast for an amendment. To succeed, an amendment must get a majority of the number of votes cast for governor.

Voters challenging the measure say that the language means that only the voters who voted in the governor’s race can have their vote’s counted on a ballot measure.

It was a contention that Binkley dismissed, noting in his ruling that the Tennessee Constitution “does not precondition the right of a citizen to vote for or against a constitutional amendment upon that citizen also voting in a gubernatorial election.”

There will be no constitutional thanks to ‘Almighty God’ for our liberties

A proposal to change Tennessee’s state constitution to recognize God as “our creator and savior” died quietly in the House Finance Committee on Monday.

HJR71, sponsored by Republican Rep. Micah Van Huss of Gray, would have added this sentence to the state constitution: “We recognize that our liberties do not come from governments, but from Almighty God, our Creator and Savior.”

The Times-Free Press reports it was one of four proposed amendments to the Tennessee Constitution getting the ax.

Finance Committee Chairman Charles Sargent, R-Franklin, explained that with lawmakers hoping to adjourn in the next few days there was not enough time to give the measures the required three readings on the House and then the Senate floors.

…A second resolution, HJR 525 from Rep. Mike Carter, R-Ooltewah, would have amended the state Constituition to prohibit lawmakers from ever imposing a state property tax. The state currently does not have one. (Note: But the constitution specifically authorizes such a levy.)

Another one that sought to give state lawmakers the sole authority to determine whether they were adequately funding public education had previously been acknowledged by its sponsor, Rep. Bill Dunn, R-Knoxville, as dead.

The other proposal dealt with local governments’ ability to grant tax relief programs for some homeowners.

Constitutional amendment on education dies in Senate committee

NASHVILLE, Tenn. (AP) — A proposal to add an amendment to the state constitution that would give the Tennessee Legislature full discretion to determine the funding and eligibility of public schools failed on Wednesday.

The joint resolution sponsored by Sen. Delores Gresham, a Somerville Republican (SJR461), died in the Senate Education Committee.

The legislation was proposed as some Tennessee school systems are waging a court battle to secure more education funding. Hamilton County and six surrounding school systems filed a lawsuit last year saying the schools challenged the adequacy of school funding. The Shelby County Board of Education followed by filing a lawsuit saying the funding was so low that it violated a child’s right to a free and equal education.

Gresham’s resolution was amended to match a resolution filed by Rep. Bill Dunn, R-Knoxville, that would allow the Legislature to “provide for the maintenance, support and eligibility standards of a system of free public schools in such manner as the General Assembly may determine.”

Dunn said the purpose of his resolution was to emphasize the role of lawmakers, and not judges, in setting education policy. He said he began thinking about proposing the amendment after finding out what “activist judges” have done around the country and then hearing about lawsuits filed in Tennessee.

“And some of these schools systems, they read the Constitution as that it’s an unelected judge who determines educational policy, and my amendment just clarifies that, no, it’s the elected representatives who do.”

A former lawmaker who represents smaller school districts said he feared the amendment would have allowed the Legislature to gut education funding.

“This constitutional amendment was intended to destroy every public school child’s constitutional right to an adequate education,” said Roy Herron, a former state senator and attorney who represents the Tennessee Small Schools for Equity. “It was intended to make whatever the Legislature does or fails to do be deemed constitutionally adequate, so school systems and school children could not challenge inadequacies in their educational system.

Note: The resolution fell one vote shy of the five needed for passage. Voting yes were Sens. Rusty Crowe, R-Johnson City; Todd Gardenhire, R-Chattanooga; Ferrell Haile, R-Gallatin; and Gresham. Noting no was Sen. Steve Dickerson, R-Nashville. Sens. Joey Hensley, R-Hohenwald; Jim Tracy, R-Shelbyville; and Reginald Tate, D-Memphis, abstained. Sen. Bryan Kelsey, R-Germantown, was absent.

Judge hears challenge to TN abortion voting

By Travis Loller, Associated Press

NASHVILLE, Tenn. — Abortion rights supporters on Tuesday asked a federal judge to toss out a 2014 constitutional amendment that made it easier to restrict abortion in Tennessee.

They claim the way the vote was counted was unfair and favored supporters of the amendment, which passed with 53 percent voting in favor.

Supporters and opponents spent more than $5.5 million on the campaign over Amendment 1. Much of that was raised by abortion rights advocates from Planned Parenthood affiliates across the country who fought the change.

Amendment 1 added language to the Tennessee constitution making clear that it does not protect abortion. Once the constitution was changed, the General Assembly passed laws requiring clinics to meet the strict standards of surgical treatment centers and requiring women seeking abortions to undergo mandatory counselling and then wait 48 hours before getting an abortion.

Tennessee previously was an outlier in the South, with fewer abortion regulations than surrounding states.

During the campaign, supporters of Amendment 1 portrayed Tennessee as an “abortion destination,” playing up that almost 23 percent of the women getting abortions in Tennessee at the time were from out of state. But another campaign led by anonymous supporters of the amendment is what led to the current court challenge

On social media and in churches around the state, people were urged to “double your vote” by skipping the governor’s race and voting “yes” on Amendment 1. That’s because the state constitution that says amendments must be passed by “a majority of all the citizens of the state voting for governor, voting in their favor.”

The state says that language refers to how many people have to vote in favor of an amendment for it to be ratified. It is not enough for an amendment to simply have more “yes” votes than “no” votes. The number of “yes” votes also has to be equal to at least the number of people voting for governor plus one, a simple majority.

So if 1,000,000 vote for governor, at least 500,001 must vote in favor of the amendment. But if fewer people vote for governor, fewer votes are needed to pass an amendment.

Plaintiffs’ attorney Bill Harbison argued in federal court in Nashville on Wednesday the state is incorrectly interpreting the way amendment votes should be counted. He said the language of the constitution — “a majority of all the citizens of the state voting for governor” — refers not to the number of voters, but to the voters themselves. That is, only voters who cast ballots in the governor’s race should have their votes counted on the amendment.

Because the state looked only at the number of voters and not at the voters themselves, election officials created a situation where “yes” votes can hold more weight than “no” votes, according to Harbison. He said that was in violation of the plaintiffs’ federal due process and equal protection rights.

He suggested the fact that, for the first time, there were more votes on an amendment than in the governor’s race, shows the campaign to manipulate the vote was successful. And he said a ruling in favor of the state’s interpretation would invite future manipulation.

Deputy Attorney General Janet Kleinfelter, arguing for the state, said there is no proof that voters actually participated in the voting scheme pushed by some Amendment 1 supporters. She said there may simply have been more voter interest in the amendment than in the governor’s race, in which a political unknown ran against popular incumbent Gov. Bill Haslam.

Kleinfelter also said the state has counted votes on amendments in the same way for more than 100 years.

“State officials, election officials and courts shouldn’t interpret the constitution based on how political campaigns might try to manipulate it,” she told the court.

U.S. District Judge Kevin Sharp said he will rule as soon as possible.

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AG opines on changing TN constitution’s education provisions

A new legal opinion from State Attorney General Herbert Slatery says a proposed amendment to the Tennessee Constitution regarding public school funding will not impact the state’s equal protection provisions, notes the Times-Free Press.

The opinion was requested by Rep. Bill Dunn. The Knoxville Republican’s proposed amendment makes a change to a section requiring state lawmakers to provide for the maintenance and support of a “system of free public schools” and, he thinks, allow lawmakers to spend what they wish.

Opponents to Dunn’s proposal (HJR493) have raised objections that it could impact equal protection provisions elsewhere in the document.

Dunn has maintained the amendment would not and Slatery’s opinion supports his view.

“The proposed amendatory language does not change the meaning of the public schools clause (article XI, § 12) of the Tennessee Constitution, and would not affect the equal protection provisions of article I, § 8 or article XI, § 8, of the Tennessee Constitution, which would still limit, as they do now, the authority of the General Assembly to determine how to provide for free public education in Tennessee pursuant to the public schools clause,” the opinion says.

The state Constitution’s equal protections as well as similar ones in the U.S. Constitution provided the basis of successful school-funding lawsuits in the 1990s and early 2000s in which smaller, largely rural systems complained they were treated unfairly by the state.

Dunn introduced the proposed change after school systems in Hamilton and six nearby counties last year filed a school funding lawsuits charging the state is short-changing all districts on funding. Shelby County schools filed its own suit.

Note: The full opinion is HERE.