US appeals court: Tennessee abortion amendment vote was OK

AP News
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Posted: Jan 09, 2018 3:43 PM

NASHVILLE, Tenn. (AP) — A federal appeals court dealt abortion opponents and state elections officials a victory Tuesday by ruling that Tennessee won't have to recount votes on a constitutional amendment passed in 2014 that allows tougher abortion restrictions.

The 6th U.S. Circuit Court of Appeals opinion Tuesday says the state's vote counting method on Amendment 1 was reasonable and true to the meaning of the Tennessee Constitution. It also says the count didn't infringe on the voting rights of the plaintiffs, eight abortion rights advocates who sued the state.

The order overturns an April 2016 district court that called Tennessee's vote-counting on Amendment 1 unconstitutional and fundamentally unfair and ordered a recount, which was put on hold pending the appeal.

Amendment 1 says that nothing in the state constitution "secures or protects a right to abortion or requires the funding of an abortion" and empowers state lawmakers to "enact, amend, or repeal statutes regarding abortion."

Vanderbilt law professor Tracey George, one of plaintiffs, had said there is a good chance the amendment would fail if the votes were recounted as ordered.

The case had remained in limbo for years, offering lawmakers no certainty of whether new or proposed restrictions would ultimately later be wiped from the books.

"Although the subject of abortion rights will continue to be controversial in Tennessee and across our nation, it is time for uncertainty surrounding the people's 2014 approval and ratification of Amendment 1 to be put to rest," the opinion states.

The Republican-led state House of Representatives gave a standing ovation Tuesday when Rep. Bill Dunn, a Knoxville Republican, announced the decision, and Tennessee Right to Life applauded the ruling.

"Today's ruling is vindication of the state's amendment process and victory for the thousands of pro-life Tennesseans who sacrificed to see Amendment 1 passed," Brian Harris, president of Tennessee Right to Life, said in a statement.

Likewise, the ruling gave state election officials validation that they have been counting amendment votes correctly.

"This opinion confirms what we have known all along," Tennessee Secretary of State Tre Hargett said in a statement. "Tennesseans should take pride in knowing their votes are counted in a fair, impartial and trustworthy manner."

House Speaker Beth Harwell, a Nashville Republican, said she thought Tuesday's decision was the "right call," but that doesn't mean a new influx of abortion restrictions should be expected to pass the legislative session that started Tuesday.

"I think we kind of have reasonable laws on the books here in Tennessee, and have done the right amount," Harwell said.

When tallying up constitutional amendment votes in Tennessee, elections officials say they first check to see if there's a majority vote in favor. Then, they verify that the "yes" votes amount to more than half of the total votes in the governor's race. The officials say that's the way they've done it since 1953, when the comparison point was changed from total votes for representatives to votes for governor.

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The district judge had ordered the recount to tally only those amendment votes from people who also voted for governor.

Anti-abortion activists ran a campaign saying voters should leave the governor's race blank, while opponents sought to increase governor's race turnout.

The appeals court wrote that those were "strategic choices made by members of the voting public to maximize the impact of their votes," and had nothing to do with actions by state officials.

After the amendment's adoption, lawmakers passed a 2015 restriction that made abortion clinics meet hospital-level surgical standards, only to see that law permanently halted in spring of 2017 in a federal lawsuit. In the same lawsuit, the state is still defending a 2015 restriction that requires counseling and a 48-hour waiting period for women seeking abortions.

And in spring 2017, Gov. Bill Haslam signed a law that bans abortions after 20 weeks on fetuses determined to be viable.