February 27, 2018 Articles

Competing State and Federal Proceedings

A dispute over Tennessee’s abortion law escalates to the Sixth Circuit.

By Cassandra Robertson – February 27, 2018

In 2014, voters in Tennessee were asked to vote on a proposed amendment to the state constitution providing that “[n]othing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.” After a grueling campaign, the measure was reported to have passed with 52 percent of the vote.

That result was quickly challenged by group of eight Tennessee voters who had opposed the measure. The voters filed suit under 42 U.S.C. § 1983 against state elections officials in federal court, challenging the way the votes were counted. The Tennessee constitution requires that an amendment be approved “by a majority of all the citizens of the state voting for governor.” However, the state counted all ballots showing a vote for the amendment—regardless of whether the voter had also voted in the governor’s race. Discounting the ballots of those who failed to vote in the governor’s race could potentially change the outcome, as a significant number of ballots left the governor’s race blank. Proponents of the amendment had launched “a concerted effort to ask voters to vote only in the amendment race to make its passage more likely.” Specifically, campaigners in favor of the amendment “surmised that the greater the number of votes cast for governor, the greater would be the ultimate number of votes for [the amendment] needed for its approval and ratification. Hence, supporters encouraged voters to vote for the amendment and abstain from voting for governor, and opponents urged voters to vote against Amendment 1 and cast a vote for a candidate for governor.” The plaintiff voters alleged that upholding this strategy would impermissibly dilute their votes and violate their due-process rights.

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