As you probably know by now, the opponents of Amendment 1 have filed a federal law suit against the outcome challenging the method officials used to count ballot votes. Their argument is that only those who voted in the governor's race should have their votes counted in the amendment 1 contest. They are asking the court to intervene and require election officials to recount the vote or to declare the outcome invalid.
According to the way an amendment can be adopted in Tennessee, not only do more people have to vote for it than against it, but the votes for it must add up to one vote more than one-half of the number of votes cast in governor's race. In order to lower the threshold necessary for amendments to pass, I was one of those who did not vote in the governors election and voted for all of the amendments. I urged others to do the same.
Tennessee election officials have called the Amendment 1 lawsuit "absurd" and without merit. The first hearing in the case is Jan. 12th. Should the opponents of Amendment 1 win their lawsuit, it would be a difficult task to recount and only count the votes of people who voted in the Governor's race, election officials say. There is not an automated way to do that and each vote cast would have to be examined. Even if a recount did occur and ballots like mine were thrown out, it is doubtful it would change the outcome. About 30,000 more votes were cast for or against amendment one than were cast in the governors race. Some of those, of course, may have been "no" votes who were only motivated to go to the polls to vote against amendment 1. Even if all 30,000 who voted in the Amendment 1 referendum voted "Yes," the amendment would still most likely stand since it got 70,000 more "yes" votes than "no" votes.
Daniel Horowitz, a Nashville attorney and a friend of mine who actually voted "no" on Amendment 1, offers this analysis:
The problem with the plaintiffs’ position is that it exacts a significant price from voters as a prerequisite to allowing them to vote on constitutional amendments. Specifically, according to the plaintiffs’ view, a citizen must first vote for a gubernatorial candidate—even if he or she does not support any of the candidates listed—in order to gain the right to vote on a proposed constitutional amendment. In my opinion, this represents a substantial and unconstitutional infringement on the right to vote and on freedom of association. See, e.g., Dunn v. Blumstein, 405 U.S. 330,336 (1972) ("In decision after decision, [the Supreme] Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction."); Kansas City v. Whipple, 38 S.W. 295, 296 (1896) (“if suffrage i[s] a sovereign right of the citizen, he must be as free, according to the dictates of his own untrammeled will and conscience, not to exercise it as to exercise it on any particular occasion; otherwise the right is not sovereign.”); Roberts v. U.S. Jaycees, 104 S. Ct. 3244, 3252 (1984) (“Freedom of association . . . plainly presupposes a freedom not to associate.”). As a result, because the plaintiffs’ desired interpretation of Article XI, Section 3 poses serious constitutional problems while the State’s interpretation does not, the State’s view should prevail.Former Senator David Fowler who is head of FACT (Family Action Council of Tennessee) and an attorney, has written a more detailed analysis of the Amendment 1 lawsuit and concludes it has no merit. You can find his analysis at this link.