On January 10, the Sixth Circuit issued a 24-page opinion in George v Hargett, 16-5563. The issue was how to interpret the Tennessee Constitution, which says, “If the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.”

In November 2014, an Amendment concerning abortion was on the ballot, Amendment One. It received 729,163 votes in favor, and 657,192 “No” votes, for a total of 1,386,355 votes cast on the amendment.

The number of votes cast for Governor in November 2014 was 1,353,728. Because Amendment One received more “yes” votes than “no” votes, and because the “yes” vote was also greater than 50% of the gubernatorial vote, the state declared the amendment had passed. However, in 2016, a U.S. District Court said the measure could not have passed until the state re-counted all the votes to see if it had received more “yes” votes than “no” votes from among only those voters who had cast a ballot for Governor. In other words, the U.S. District Court thought that only the votes of persons who had voted for Governor should count when deciding whether Amendment One had passed.

State election officials, and a state court, had rejected this reading of the Constitution. The Sixth Circuit decision of January 10, 2018, says that the state court’s interpretation should be followed. The Sixth Circuit rejected the contention of the opponents of the Amendment that the state court interpretation discriminates against any voter. Therefore, in the future, if a measure receives more “yes” votes than “no” votes, and if the number of “yes” votes is also greater than 50% of the vote cast in the gubernatorial vote cast, it passes. Thanks to How Appealing for this news.

According to this St. Louis Post Dispatch article, attorney Craig O’Dear, a former Republican, is seriously considering becoming an independent candidate for U.S. Senate in Missouri this year. Missouri has not had an independent candidate on the ballot for U.S. Senate since 1976. Thanks to Ken Bush for the link.

On January 9, a 3-judge U.S. District Court ruled that North Carolina’s U.S. House districts comprise an unconstitutional partisan gerrymander. Common Cause v Rucho, m.d., 1:16cv-1026. The vote was 3-0. Judges James A. Wynn (an Obama appointee) and W. Earl Britt (a Carter appointee) wrote the majority opinion, which says that the First Amendment requires districting for partisan office to avoid any attempt to give one particular party an advantage over any other party. This is a radical conclusion that no other final decision in any other case has concluded. They also said that the “Elections Clause” (Article I, sec. 4) also forbids partisanship in redistricting. The part of the decision about the Elections Clause is on pages 175-191.

The third judge, William L. Osteen, a Bush Jr. appointee, wrote separately to say that he believes the North Carolina plan is unconstitutional because it violates the Equal Protection clause of the Fourteenth Amendment.

This case has been filed August 5, 2016, after the North Carolina legislature had redrawn the U.S. House districts. The original 2011 plan had been declared an unconstitutional racial gerrymander, so the legislature drew new districts that were then attacked as an unconstitutional partisan gerrymander. The state had tried to persuade the judges to stay this case until the U.S. Supreme Court hands down its decisions from Wisconsin and Maryland, but on September 8, 2017, these judges said they would not wait. They clearly intend this decision to be in time for new districts to be drawn for the 2018 election. Thanks to Rick Hasen for the link. The majority opinion is 191 pages long; the Osteen decision, at the back, is 14 pages.