On Thursday April 21st, Williamson County Circuit Court Judge Michael Binkley upheld Tennessee's method of counting ballots on the Amendment 1 constitutional amendment question which was passed by the voters in 2014. Unfortunately that victory was short lived, because on Friday April 22nd U.S. District Judge Kevin Sharp ruled that the method of counting of votes on Amendment 1 was fundamentally unfair to the plaintiffs and ordered a recount using a different methodology.
Amendment 1 was the amendment to the Tennessee constitution that inserted language empowering the legislature to enact, amend or repeal state statutes regarding abortion. The amendment did not outlaw abortions but allowed the state to impose reasonable limitations on abortion such as licensing requirements and waiting periods. It gave Tennessee the same right to regulate abortions as every other state. The language of the amendment was this: "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother."
Due to a Tennessee Supreme Court decision in 2000 it was determined that the State constitution provided greater rights to abortion than did the Federal constitution and the State was prohibited from regulating the abortion industry. As a result, Tennessee had become an abortion destination and one in four abortions in Tennessee in 2010 was sought by out-of-state women. This was a result of surrounding states being able to regulate abortions and Tennessee not being able to do so. To correct this and to restore to the legislature the power to regulate abortions which they had done prior to the 2000 State Supreme Court ruling, Amendment 1 was presented to the voters who approved the measure by 53 percent of the votes cast.
When abortion supporters lost the referendum, they challenged the method used to approve the measure. At issue is how to count the votes. Article XI, Section 3 of the Tennessee Constitution says, "And if the 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 part of this Constitution."
Ever since the adoption of the Tennessee constitution, the way an amendment was approved is that the amendment, not only had to win a majority of the votes but it had to have as many people vote on the amendment as voted for governor. So, in order for an amendment to be approved, if 100,000 people voted for governor, then it did not matter if an amendment got 90,000 votes in favor and 9,999 in opposition it was not adopted. It had to reach the threshold of the same number as those who voted for governor had to vote on the amendment question. Those challenging the approval of Amendment 1 are saying that, that method and reasoning is incorrect; that only those who actually voted for governor get to have their vote counted in the constitutional amendment referendum.
At this time, Judge Sharp has only ruled that the vote be retabulated to exclude those who did not vote in the Governors race. That means my vote won't be counted. I purposely did not vote for governor in order to lower the threshold for Amendment 1. Judge Sharp did not set aside the result or order a new election. He also did not order that the other amendment on the ballot be recalculated. There is still hope that he will not sit aside the result of the amendment referendum.
In the November 2014 election, 1,353,728 people voted for governor and 1,386,355 voted on Amendment One; 729,163 voted in favor of Amendment 1 and 657,192 voted in opposition. So that means 32,627 voted on the Amendment 1 question, who did not vote in the Governors race and yet Amendment 1 won by 71,771 votes. If every person who voted on Amendment 1 but did not vote in the governors race voted for Amendment 1 and their vote is thrown out, Amendment 1 still wins by 38,344 votes.
For more on this issue see the following:
Federal judge orders recount of Amendment 1 voting
Federal judge orders recount of 2014 abortion ballot vote
For background see the following:
Vote Yes on 1. End Tennessee as an abortion destination state.
Amendment 1 lawsuit has no merit and is "absurd."
Why I am not voting for Bill Haslam