The Sixth Circuit will hear George v Hargett, 16-5563, on August 2. The issue is the meaning of this part of the Tennessee Constitution concerning popular votes cast for state constitutional amendments: “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.”
This had always been interpreted to mean that if the amendment receives a number of votes greater than 50% of the vote cast for Governor, then it passes. However, in 2016, U.S. District Court Judge Kevin Sharp ruled that it really means that the individual voters who left their ballot blank for Governor cannot then vote on the constitutional amendment. If Judge Sharp is correct, that would mean when the ballots are counted, any votes cast by voters on the amendment don’t count if that voter left Governor blank.
The case arose in 2014, when a state constitutional amendment was on the ballot restricting abortion. It received 729,163 “yes” votes, and 657,192 “no” votes. But opponents of the amendment filed a federal lawsuit, saying the measure failed because election authorities didn’t disqualify the votes of people who left Governor blank. Obviously that can’t be done now. Some of the 2014 ballots don’t even exist any longer, so no one can look at each one. The gubernatorial vote in 2014 was 1,353,728; 50% of that number is 676,864. The government believed that the amendment passed because the “yes” vote was greater than 50% of the gubernatorial vote.
The Sixth Circuit panel consists of Judge Richard Suhrheinrich (a Bush Sr. appointee), Ronald Gilman (a Clinton appointee), and David McKeague (a Bush Jr. appointee).
What is the alleged Federal Question ???
— since obviously it is a question for the Tenn Courts.
Perhaps the Federal question is whether not letting people vote on a state Constitutional amendment unless they also vote in the gubernatorial race is denying their voting rights.
Richard (or anybody),
* What happens in non-gubernatorial years? Is the most recent past election used as the standard?
* Has there ever been a case where a majority of Tennessee voters voting on a state Constitutional amendment voted for the amendment, but that number of “yes” votes was less than half the number of total votes in the [concurrent or most recent] gubernatorial election?
Demo Rep, good point. The Tennessee state courts had already ruled that the provision means simply that the number of votes for the question must exceed 50% of the gubernatorial vote total. I expect the Sixth Circuit to reverse the U.S. District Court.
John, yes, if the question is on the ballot in a presidential year, the requirement is met if using the previous year’s gubernatorial vote.
The Tennessee definition of party also has this peculiarity. If in a presidential year a party polls 5% of the last gubernatorial vote, then it is recognized. That is why the Libertarian Party thought that since Gary Johnson in 2016 got over 5% of the 2014 gubernatorial vote, then the party is ballot-qualified. Gary Johnson didn’t get as much as 5% for president in 2016, but his vote total was greater than 5% of the 2014 total vote. But the state wouldn’t agree, and said the vote test only applies to an already-existing party. The Tennessee Libertarian Party did not challenge that ruling in court.
I too was wondering why a federal court would address a legal question about the precise meaning of a provision of a state constitution. It seems to me that an issue would have to be raised, in federal court, about some pertinent federal law, such as a constitutional violation, like John mentioned – voting rights (allegedly) protected by the U.S. Constitution. I *hope* that the Sixth Circuit has the sense to overturn Judge Sharp.
The plaintiffs claimed due process (that Tennessee did not follow the plaintiff’s interpretation of the Constitution) and equal protection due to vote dilution by counting a Yes vote by someone who abstained in the governor’s race as more than a No vote.
The federal district judge refused to certify to the Tennessee Supreme Court the interpretation of the Tennessee Constitution (even though the case depends on how that Constitution is interpreted). The state defendants got a state court to interpret the constitution while the federal case was going on (and the federal judge was aware of its interpretation). Based on Tennessee’s briefs, this may be the prime issue before the appeals court.
There was apparently a whispering campaign to not vote for governor and then vote for the proposition; and opponents of the proposition (or at least one of the plaintiffs) was urging supporters to be sure to vote in the governor’s race.
It is murky what happened. The undervote in the governor’s race was a bit higher than usual, but the Democratic candidate Charles Brown was cited as being the Alvin Greene of 2014, a candidate who apparently did not campaign yet was nominated (filing in Tennessee only requires a fee of $25, while Greene actually did spend a big chunk of money $10,440 to get on the ballot in South Carolina). Brown did not have an election web site, but did have a Facebook page, perhaps created after the election which had a picture of a string of bass, and which spelled his name as Chrles. When asked if he had any political signs he said he did not believe in them. There also was no Libertarian candidate on the ballot.
Turnout for the proposition was quite a bit higher than past elections, but that might have to do with the intensity of feelings on the issues (which included abortion and barring a state income tax). Turnout for the US senate race was higher than the governor’s race and almost as high as for the proposition.
If every voter who didn’t vote in the governor’s race (76,389 voters), voted on the Proposition, a 68.46% Yes vote would cause the proposition to receive less than half of gubernatorial vote. But this percentage skyrockets is there were some double abstentions.
For the Yes vote on the Proposition to be less than a majority of those voting on the proposition, it would have required 97.1% of gubernatorial abstainers voting Yes.
The provision in the constitution is quite old, albeit in a slightly different form, dating from the 19th Century. This was prior to government-printed ballots, and might have been meant to get a measure of the number of voters. Otherwise a voter who was not aware of the proposition would be unlikely to indicate opposition.
Prior to the 1953, the vote test was against votes for the House of Representatives, likely dating from an archaic notion that the legislative branch is the most important branch of government. A constitutional convention in 1953, switched it to be based on votes for governor OR voters for governor, depending on your interpretation.
During the convention, there were minority alternatives that would base the outcome based on the votes on the proposition itself; or to require a 2/3 favorable vote. So it appears that some of the intent was to ensure a quorum, and to prevent an obscure provision becoming part of the constitution because nobody understood it.
The provision only applies to amendments proposed by the legislature, which requires the referendum to be held at the next gubernatorial election. In addition, the referendum questions are immediately below the gubernatorial race on the ballot.
Constitutional amendments may also be proposed by a constitutional convention. In that case, propositions only need to receive a majority of votes cast on the measure.
So it is not entirely implausible that the interpretation that only gubernatorial voters may vote on legislative-initiated amendments is correct.
The SOS has suggested that if this interpretation is correct, that the state will have to acquire new voting machines, which either have a lock out device so that if you don’t vote for governor, you will be unable to vote on the amendment; or to be able to correlate the two votes. It appears that it is impossible to determine from voting machines how many votes were cast on the proposition by voters who voted in the gubernatorial races. This along with a courthouse that burned down may make recount impossible.
The district judge did order a recount, but he stayed that while the 6th Circuit is considering the case.
The first three district judges assigned the case recused themselves. The fourth judge, who made the decision, has since resigned, at age 54 and only six years on the bench. He has indicated he did not like having to wait for cases to come to him, and could be more proactive as an attorney. IIUC, the case is currently assigned to a Michigan district judge. I don’t know what happens if the 6th Circuit remands the case.
How many States have ANTI-Democracy nomination and/or election systems, in whole or part ???
P.R. and App.V.
Does the Tenn SCT accept certified questions (about Tenn law) from Fed courts ???
FRCP rule ??? FRAP rule ???
I found a paper that says that says only Arkansas, New Jersey, and North Carolina do not have a procedure for a federal court to ask a state supreme court to interpret a state law.
Simple math gives us 1,386,355 votes on the amendment. Take away the gubernatorial votes of 1,353,728 and we have 32,627 voters who voted on the amendment but not for governor. If ALL of them (a demographic impossibility) voted “yes” and we subtract that from the total, the amendment still passed with 696,536 “yes” over and unchanged 657,192 “no” votes, a margin of 39,344 votes. So the intent of the voters is clear. Why is this matter in court?
1,430,117 persons voted in the election.
76,389 did not vote for governor.
43,762 did not vote on the Proposition.
You are assuming that everyone who didn’t vote for governor, did vote on the propositions.
It is not implausible for some people to skip both. The Democratic gubernatorial was a real dud. After his nomination in the primary, one headline suggested that he was Tennessee’s version of Alvin Greene. Another headline was “Good Grief! Charles Brown”.
There was also a US Senate race, which had more votes cast (1,372,906) than the other two races.
The apparent intent of the constitutional provision was to require a majority of those “participating” in the election to approve and ratify a change to the constitution. Number of registered voters is not a good measure because some voters have died or left the state, or may have registered to keep some DMV worker happy. The provision dates from before the time that there was voter registration. So the number of voters who vote in a gubernatorial election is a reasonable measure of the active citizenry. If you don’t care enough to vote for the governor, you probably don’t care much about the constitution.
Typically, more people vote for governor, than vote for propositions. I think the averages were about 97% for governor, and 90% for propositions, so in the past this would require about 54% support.
But as noted, in 2014, the gubernatorial candidate for the Democrats was a dud, and the proposition included hot button issues on abortion and eliminating the state income tax.
Before the election inquiries were made about whether someone had to vote for governor in order to vote on the propositions. The SOS researched the issue and past practice, and included the vote test was based on the number of votes cast for governor, not the votes of those who voted for governor.
There was apparently an informal campaign to skip the governor’s race, so as to make it easier for the proposition to pass; and an effort by opponents to be sure to vote in the governor’s race.
I suspect that most voters were not so calculating. I also suspect that Democrat voters would be more likely to skip the governor’s race, and also more likely to vote No on the proposition.