A novel (and weak) attack on a Tennessee ballot initiative

The people of Tennessee approved Amendment 1 this election cycle, which removed the matter of abortion from the Tennessee Constitution, effectively leaving the only legal protection for abortion in the state in the jurisprudence of the United States Constitution. (It's called an "amendment" as something proposed by the Tennessee legislature but ratified by the people--slightly different than a typical initiative process, which is often voter-initiative by petition.)

Shortly after the Amendment was passed, a federal lawsuit challenged the Amendment. The claim is somewhat complex. A provision of the Tennessee Constitution provides: "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 a part of this Constitution."

That's usually construed to mean that the denominator for a ballot initiative to pass is the total ballots cast for governor, not for the initiative; and that the "yes" votes on the initiative must be a majority as compared to the total votes cast for governor. That's because down-ballot races often yield fewer votes cast, and it's a way of ensuring that the initiative is enacted only with a slightly stronger majority.

The total "yes" votes cast, at the time I write this, is 728,751 votes. But while 1,385,178 votes were cast for the Amendment; just 1,352,608 votes were cast for the office of governor. That means the Amendment passed with nearly 54% of the vote.

But plaintiffs in this case are claiming that that isn't the right way to read the statute. Instead, it should be read to require that only those who voted for governor should have their votes on Amendment 1 counted. That, they argue, is what the literal reading of the Tennessee Constitution demands.

Basic math illustrates the silliness of this claim. There are, at this point, at least 32,570 fewer votes cast for governor. The current margin of victory for Amendment 1 is 104,894 votes. Even if every single person who abstained from voting for governor voted "yes" on Amendment 1, it would not come close to changing the result. (Indeed, the complaint only demands the right to an accurate count, claiming a type of dilution. There are nuanced situations in which the total might be different based on some more complicated contingencies, but that's extremely unlikely.)

But I want to set aside the sheer outcome-ineffectiveness of this claim. And, further, I want to set aside the post hoc nature of this claim--it might, for instance, have altered behavior of the voters if they had know ex ante how to vote, rather than invalidating the votes of thousands of voters on Amendment 1 after the fact.

Instead, I want to look at the claim itself--that, as a condition for voting on Amendment 1, one must vote for governor, too. That almost assuredly fails.

In an analogous context, California and Colorado had conditioned the right to vote for a replacement in a recall election on voting "yes" or "no" on the recall. (I've blogged about these issues here and here.) A California federal court and the Colorado Supreme Court struck them down.

The basic approach has been to follow Burdick v. Takushi. A court examines the nature of the voting right being asserted, the burden on that, and, in the case of a "severe" burden, the regulation must be subject to strict scrutiny.

Plaintiffs in this case claim that their votes are diluted by having non-gubernatorial voters' votes counted in the Amendment 1 tally. But that's really asserting a "right" under the text of the Tennessee Constitution, and not a burden per se on the fundamental right to vote. The real "right," I think, is actually the reverse: the "right" of voters to vote for Amendment 1 without being compelled to vote on the governor's race. That's how the recall cases have articulated the right--without a concern about the "dilution" to voters who voted on both under state law.

The best justification for the two-step recall system is articulated by the dissent in Colorado's case, explaining that in the old days, the recall consisted of a list of all the candidates, including the sitting politician, and the winner would simply win the recall (or, the sitting politician would win and never be recalled). States broke this into two steps--yes or no, and then a vote on the recall, which empowered voters who support the incumbent but would still want a "say" in the recall down ballot.

Regardless, that narrow possible justification for recalls does not, I think, tie in any way to the proposed novel interpretation of Tennessee's law. It strikes me (at least) as fairly onerous to compel voters to vote for one office in order to have the privilege of having their votes counted for initiatives--at least, not without some even plausible justification along the lines articulated in the recall dissent (which is, I think, certainly a matter for meaningful debate). There doesn't, I think, appear to be such a justification articulated anywhere in the complaint.

My initial view, then, is that this attack, somewhat novel and, based on this analysis, weak, would not last long in federal court.

A version of this discussion was originally emailed to the Election Law Listserv.