Tennessee abortion amendment challenge stirs uproar

photo Signs outside a polling place support different opinions on an amendment to the Tennessee Constitution on Tuesday in Nashville.

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NASHVILLE -- Supporters of tougher abortion regulations on Monday accused plaintiffs challenging the just-adopted Tennessee constitutional amendment in a federal lawsuit of seeking to undermine the majority of voters who approved it.

David Fowler, a former Republican state senator and president of the Family Action Council of Tennessee, charged the opponents' lawsuit was "born more from hysteria than logic" and if accepted by courts could endanger any number of existing amendments to the Tennessee Constitution.

Approved by voters last week by 53 percent of voters, Amendment 1 allows state legislators to pass stricter requirements on women who seek an abortion as well as on abortion providers.

Opponents on Friday filed suit in U.S. District Court in Nashville hoping to block the amendment from taking effect. They argue state officials aren't following the exact wording of the Tennessee Constitution when it comes to amendments.

The constitution says voters must "approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor."

"It's our contention the Tennessee Constitution sets forth a certain method on how those votes are counted and what votes are eligible to be counted," attorney Bill Harbison, one of the attorneys involved in the suit, said in a teleconference call with reporters on Monday.

Tennessee's constitution, he argued, says an amendment "needs to be approved more than 50 percent of those citizens voting for governor."

Harbison said "we take that to mean ... vote both for the amendment and for governor."

And Harbison said it's well known that there were efforts to persuade voters to skip the governor's race and simply vote for the amendment, thus lowering the threshold necessary to pass it.

A website promoted that and in Monroe County there were charges that poll workers handed out fliers instructing voters how to do just that.

Tennessee Secretary of State Tre Hargett, whose office oversees elections, told reporters Tuesday that for decades the practice has been requiring a majority of Tennesseans who cast ballots for governor to approve the amendment for passage.

For example, Hargett said, if there are 1 million people who vote for governor, an amendment would need 500,001 votes to pass. It's never been viewed to mean it has to be the very same voters, he said.

He noted the issue has never come up since the Tennessee Constitution was rewritten in 1953 and the votes on an amendment tied to the governor's race. Before that, Hargett said, it was tied to the election of "representatives."

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"I don't believe it puts it in the hands of those who just vote in the governor's race," Hargett said. "This is how the votes have been counted for quite some time. ... I guess under their argument that unless you have a gubernatorial candidate you want to vote for, you can't vote on a constitutional amendment."

A total of 1,352,608 people voted in the governor's race, according to the state's website. The state says 728,751 voted for Amendment 1. That's more than half the people who voted for governor. Despite that, the amendment passed with just 52.61 percent of the vote.

The lawsuit asks the state to delve into voting records to ascertain which of the voters in the governor's race actually cast ballots on Amendment 1. State Election Coordinator Mark Goin said he's not sure whether voting machines can even do that but is checking with vendors.

The Yes on 1 campaign released a statement attacking the lawsuit, headlined with the charge the "Radical Pro-Abortion Lobby Continues Effort to Silence TN Voters."

Yes on 1 called the lawsuit "one more example of pro-abortion activists refusing to trust the 'common sense and compassion' of Tennesseans who voted to approve Amendment 1 on November 4."

It also notes that one of the six plaintiffs, Vanderbilt University law professor Tracey George, was featured in the "No" campaign efforts television ads and that is the chairman of a Tennessee-based Planned Parenthood group.

Harbison acknowledged that if the plaintiffs' legal theory is embraced by federal courts, other Tennessee constitutional amendments, including the one that allowed creation of a Tennessee lottery for education, might be attacked.

"I do suppose that's possible." But noting that other amendments would "maybe" be viewed "in its own context," Harbison said, "in this case, it was extremely close."

Contact staff writer Andy Sher at asher@timesfreepress.com or 615-255-0550.

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