On April 22, U.S. District Court Judge Kevin Sharp, an Obama appointee, issued a 52-page opinion in George v Wallace, m.d., 3:14cv-2182. The issue is how many votes a proposed state constitutional amendment needs to pass in Tennessee. The Tennessee Constitution says in Art. II, sec. 3, “If the people shall approve such amendment by a majority of all the citizens of the state voting for Governor, voting in their favor, such amendment shall become a part of that Constitution.”

For many decades, this was interpreted to mean that a constitutional amendment needs more “yes” votes than “no” votes to pass, and in addition the number of “yes” votes must be as great as 50% of the total vote cast for Governor, plus one. Ordinarily, more people cast votes for Governor than for any ballot measure. In midterm years, Governor is at the top of the Tennessee ballot, followed by statewide measures. Some voters only want to vote for Governor and don’t care about the measures. Requiring the measure to get at least as many votes as 50% of the gubernatorial vote seems intended to make sure that the measure won support from all the voters who showed up, not just 50% of the people who voted on the measure.

Surprisingly, though, Judge Sharp interpreted the Tennessee Constitution to mean that if a particular voter doesn’t vote for Governor, then that particular voter can’t vote for the ballot measures. If a voter who left Governor blank does vote for a ballot measure, then his or her vote doesn’t count. Judge Sharp says his interpretation of the meaning of the Tennessee Constitution is “the only interpretation”, and he says the Tennessee Constitution is “clear.”

Therefore, he ordered the state to recount the votes cast on Measure One from the November 2014 election, this time examining every ballot again and throwing out the votes cast on Amendment One by voters who skipped the gubernatorial race. The decision says the U.S. Constitution requires that elections be fair, and that it isn’t fair to ignore the plain meaning of the State Constitution.

The decision does not mention Partnoy v Shelley, 277 F Supp 2d 1064 (s.d., 2003), a U.S. District Court decision that struck down a California law that said, in a recall, voters who leave the recall question blank can’t then vote on the next part of the ballot. In a California recall election, the next part of the ballot asks voters who should replace the office-holder in case the recall wins. The decision in Partnoy says there is a constitutional right not to cast a vote, and a law disenfranchising voters who vote in the candidate half of the ballot, but prefer to skip the recall question, violates due process.

Amendment One in Tennessee in 2014 restricted abortion. The total vote cast for Governor in Tennessee in 2014 was 1,353,728. 50% of the gubernatorial vote is 676,864. Amendment One received 729,163 “yes” votes and 657,192 “no” votes.

If this decision is not overturned on appeal, it won’t be possible for the state to recount the votes and obtain perfectly accurate results, because in January 2015 a building storing the Van Buren County ballots burned down. Thanks to Rick Hasen for the link.