NASHVILLE - An amendment to the Tennessee Constitution that would place greater restrictions on abortions is likely to be tossed out now that a judge has ordered a recount of the 2014 ballot approving it, the lead plaintiff in a federal lawsuit challenging the results said Monday.
Fifty-three percent of voters approved Amendment 1 in November 2014. Last week, however, a federal judge ordered a recount after finding that the method used to tabulate the votes was fundamentally unfair to those who opposed the amendment. U.S. District Judge Kevin Sharp said the votes were tallied in favor of abortion opponents.
The federal ruling came a day after a state court judge found in favor of the way Tennessee counted the ballots.
In his ruling, Sharp cited language from the Tennessee Constitution that said an amendment is ratified by a "majority of all citizens of the state voting for governor."
The eight citizens who filed the lawsuit challenging the amendment had argued that the state tabulated the results of the election without considering who voted for governor. They maintained that it wasn't just enough to consider whether more voters approved of the amendment than not; it had to be by a majority of the number of people who cast ballots in the governor's race.
A total of 1,343,728 people voted for governor in the November 2014 election, court documents show. There were 729, 163 votes in favor of amendment 1.
"We have never had more people vote on an amendment than voted for governor, and so it is possible given the math - in fact there's a good probability - that the recount would result in Amendment 1 failing," said Tracey George.
The Vanderbilt law professor is one of the eight abortion rights' advocates who filed the lawsuit challenging the election results. She said the amendment loses on the recount if even just half of those who didn't vote for governor cast ballots in support of the abortion regulation measure.
The state's leading pro-life organization called it discriminatory to discount votes of people who voted on Amendment 1 but not in the governor's race.
"Tennessee Right to Life shares the view that the historic method of counting the votes and ratifying the results on Amendment 1 was followed in the exact way as every other amendment approved by the voters of our state," said Brian Harris, the organization's president, in an emailed statement.
But George said abortion opponents tried to have their votes carry more weight than those opposed to amendment by telling people to cast ballots in the amendment race but not for the governor.
Sharp has given the state 20 days to come up with a plan for the recount. It's not clear if the state will appeal.
The state attorney general's office is still reviewing the judge's order, Harlow Sumerford, a spokesman for Attorney General Herbert Slatery, said in an email. The cost to the state of a recount, Sumerford said, is something that would have to be determined.
The amendment said nothing in the state constitution "secures or protects a right to abortion or requires the funding of an abortion." It gave power to state lawmakers to "enact, amend, or repeal statutes regarding abortion."