Sixth Circuit Court of Appeals hears Yes on 1 challenge

Lawyers for state of Tennessee, plaintiffs debate before federal panel legality of 2014 constitutional amendment vote

By Will Brewer

After three years in legal limbo, advocates of Tennessee’s pro-life Amendment 1 finally got their day in court on Aug. 2.

Amendment 1 amends the state’s constitution to say that there is no fundamental right to abortion in Tennessee.

In a statewide vote in 2014, the measure passed by a margin of 53 percent to 47 percent.

The race was won by a strong grassroots effort by pro-life advocates that included attracting evangelical voters through heavy outreach to church congregations across the state. However, soon after its passage, opponents of the law sued the state of Tennessee in federal district court alleging that their voting rights were violated due to a unique provision that Tennessee uses to pass constitutional amendments.

In Tennessee, a constitutional amendment must get a majority of the vote while also getting more than half of the total number of voters in the gubernatorial election that year.

The state always has interpreted this law by tallying votes according to the total number of gubernatorial votes. Sixth Circuit judges heard arguments that some voters chose not to vote in the gubernatorial race and voted for Amendment 1 thus lowering the threshold to pass the amendment. Amendment 1 opponents claim their votes were diluted by this strategy and that the state should have only taken into consideration the voters that voted in both the gubernatorial race and the amendment race.

Last year, a federal district court judge in Nashville ruled in favor of the amendment’s opponents and ordered a recount of only votes cast in both races. That recount has been temporarily halted pending further legal proceedings. The Sixth Circuit Court of Appeals heard arguments from both sides on Aug. 2 in Cincinnati.

The panel of three judges noted that this was certainly “an interesting case” and, among other issues, focused on why this was a federal matter and not a state matter as well as whether proponents of Amendment 1 had a strategic advantage by not voting in the gubernatorial race. The state’s attorney, Sarah Campbell, argued that “Tennessee did exactly what it had done in prior elections, exactly what it told voters it was going to do, and exactly what the [Tennessee] constitution says.”

Leaders of Tennessee Right to Life, the statewide pro-life advocacy group whose mission is education and legislative affairs, attended the hearing and were optimistic of the outcome of the case given the judges’ questions and the nature of their questions to Ms. Campbell.

“It was reassuring to hear the state’s attorney articulate some of the same arguments that Yes on 1 and Tennessee Right to Life leaders have maintained since the election results were challenged and defend the rights of Tennessee voters,” said Brian Harris, president of Tennessee Right to Life.

Since the lawsuit concerns the way votes were tabulated rather than the issue of abortion itself, the state of Tennessee Attorney General’s office defended the lawsuit.

“It was exciting to be at the proceedings to see how Tennessee voters were being represented,” said Stacy Dunn, director of the Knox County chapter of Tennessee Right to Life.

After the hearing, the judges will take several months to make their decision and issue a written opinion.

If they side with the district court, they could potentially void the results of the Amendment 1 election thus nullifying any pro-life laws passed since 2014.

Such laws include a mandatory 48-hour waiting period between a physician consultation and when a woman can receive an abortion, which was passed in 2015.

The Tennessee General Assembly this year passed a post-viability abortion ban, which prohibits abortions after 20 weeks when the baby is viable.

“We will continue to pray for the judges as they come to a decision and as they write their opinions. The miracle that happened on Nov. 4, 2014, isn’t over yet,” Mrs. Dunn said.

The federal suit was filed Nov. 7, 2014, by Tracey George, a Planned Parenthood board chair, and several others, and names Tennessee Gov. Bill Haslam, Tennessee Secretary of State Tre Hargett, state election Commissioner Mark Goins, and the state Election Commission as defendants.

“Great legal minds, even those from the opposition, have stood with the voters of Tennessee on the validity of the ratification of Amendment 1. Sarah Campbell, special assistant to the Attorney General of Tennessee, who by all accounts, did a stellar job representing the people of Tennessee, stated it plainly. Tennessee counted these constitutional amendment votes the way it always has, the way it told anyone who asked about it that it would, and the way that the Constitutional Convention of 1953 spelled out that it would,” said Mrs. Dunn, a Holy Ghost Church parishioner.

“Now we wait. We wait for a decision. We wait for answers. We wait for vindication from the courts. We wait for the will of God to be done. We don’t mind the wait. Our prayer and fasting … have always been for the glory of God, and we have always prayed that His will be done on the issue of abortion, because we know that God is the author of life. It is His most precious gift, and we never work alone to preserve and protect the sanctity of life. He always stands with us,” she added.

Will Brewer is director of government relations for Tennessee Right to Life.

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