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George v. Hargett

United States Court of Appeals, Sixth Circuit

January 9, 2018

Tracey E. George, et al., Plaintiffs-Appellees,
v.
Tre Hargett, et al., Defendants-Appellants.

          Argued: August 2, 2017

         Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:14-cv-02182-Kevin H. Sharp, District Judge.

         ARGUED:

          Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants.

          William L. Harbison, SHERRARD ROE VOIGT & HARBISON, PLC, Nashville, Tennessee, for Appellees.

         ON BRIEF:

          Sarah K. Campbell, Andrée S. Blumstein, Janet M. Kleinfelter, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants.

          William L. Harbison, C. Dewey Branstetter Jr., Phillip F. Cramer, Hunter C. Branstetter, SHERRARD ROE VOIGT & HARBISON, PLC, Nashville, Tennessee, for Appellees.

          Daniel A. Horwitz, LAW OFFICE OF DANIEL A. HORWITZ, Nashville, Tennessee, J. Alex Little, BONE MCALLESTER NORTON PLLC, Nashville, Tennessee, Scott P. Tift, BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, for Amici Curiae.

          Before: SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges.

          OPINION

          Mc KEAGUE, Circuit Judge.

          In November 2014, Tennessee voters approved an amendment to the Tennessee Constitution making clear that the Constitution is not to be construed as securing or protecting a right to abortion or requiring funding of an abortion. Understandably, the amendment was a matter of no small controversy. In fact, more votes were cast in favor of and opposition to the amendment than were cast in the governor's race during the same election. In this litigation, the controversy is still kept alive. That is, since federal court jurisdiction was invoked three years ago, it remains to be determined whether the Tennessee electorate did in fact amend their constitution. This litigation, however, is only marginally related to the public policy controversy, focusing on what might be viewed as much more pedestrian questions, such as whether the votes were counted incorrectly, and whether the vote-counting method impermissibly infringed some voters' rights. We answer "no" to both questions and thus give effect to the express will of the people.

         Plaintiffs in this case, Tracey E. George, Ellen Wright Clayton, Deborah Webster-Clair, Kenneth T. Whalum, Jr., Meryl Rice, Jan Liff, Teresa M. Halloran, and Mary Howard Hayes, are eight individual Tennessee voters. In the November 2014 election, plaintiffs voted against Amendment 1, an abortion-related proposed amendment to the Tennessee Constitution. After the election, Tennessee government officials determined that Amendment 1 had passed. Plaintiffs brought suit in the Middle District of Tennessee, asserting claims under 42 U.S.C. § 1983 against the Governor of Tennessee, the Secretary of State, the Coordinator of Elections, the Attorney General, and the State Election Commission and its members ("the State officials") in their official capacities. Underlying plaintiffs' claims is the theory that, in counting the votes on Amendment 1, the State officials incorrectly interpreted the requirements of Article XI, Section 3 of the Tennessee Constitution, which prescribes Tennessee's constitutional-amendment process. After a bench trial, the district court entered judgment in favor of plaintiffs and issued an injunction requiring the State officials to recount the votes on Amendment 1 in accordance with plaintiffs' proposed interpretation of Article XI, Section 3. This appeal followed. The district court stayed the injunction pending appeal. For the reasons that follow, we reverse the district court's judgment.

         I. BACKGROUND[1]

         A. Factual Background

         On the ballot in the Tennessee general election in November 2014 were the governor's race and four proposed amendments to the Tennessee Constitution. Only Amendment 1 is at issue here. It provides:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

R. 119, Findings and Conclusions at 5, Page ID 3016.

         Amendment 1 was proposed by the Tennessee legislature pursuant to Article XI, Section 3 of the Tennessee Constitution, which prescribes two methods of effectuating an amendment: the legislative, or "referendum, " method and the convention method. Article XI, Section 3 provides that, for amendments going through the legislative method,

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.

Tenn. Const. Art. XI, § 3. This provision, though succinct, is not eloquent and may be understood in more ways than one. Prior to the November 2014 election, State officials had consistently interpreted Article XI, Section 3 as follows:

         Counting the Votes

In order for the amendment to pass and become part of the Constitution, two things must happen:
1. The amendment must get more "yes" votes than "no" votes; and
2. The number of "yes" votes must be a majority of the votes cast in the gubernatorial election.
To determine the votes needed, all votes for all candidates for governor are added together. This number is divided by two or halved. The number of "yes" votes must exceed that number. If the number of "yes" votes exceeds the number, the Constitutional amendment passes and becomes part of the Constitution.
Voting
Despite the fact that the number of votes cast for governor is used to determine the outcome, it is not necessary to vote in the governor's race in order to vote on the Constitutional amendment. Likewise, it is not necessary to vote for an amendment in order to vote in the governor's race.

R. 119, Findings and Conclusions at 10-11, Page ID 3021-22 (quoting language previously posted on the Secretary of State website). In fact, no evidence was presented to the district court suggesting that Article XI, Section 3 had ever been interpreted and applied differently by State officials. Id. at 9, n.4, Page ID 3020.

         Prior to the November 2014 election, the State officials received inquiries from members of the public, as well as one from the Davidson County Election Commission, regarding how the votes on the proposed amendments would be counted. Specifically, the inquiries sought guidance as to whether Article XI, Section 3 required voters to vote for a gubernatorial candidate in order for their votes to count on the proposed amendments. In accordance with the above interpretation consistently applied by officials in the past, the State officials responded to the effect that voting in the governor's race was not a prerequisite to casting a valid vote on an amendment. R. 119, Findings and Conclusions at 9, Page ID 3020. A spokesperson for the Secretary of State's office also explained this response to the media, which was made known to the public through newspaper articles. Id. at 12, Page 3023.

         Supporters and opponents of Amendment 1 then began using the published interpretation of Article XI, Section 3 to enhance or diminish the likelihood of the amendment's approval. Applying the published interpretation, both supporters and opponents surmised that the greater the number of votes cast for governor, the greater would be the ultimate number of votes for Amendment 1 needed for its approval and ratification. Hence, supporters encouraged voters to vote for the amendment and abstain from voting for governor, and opponents urged voters to vote against Amendment 1 and cast a vote for a candidate for governor. The largest campaigns, noted the district court, were mounted by supporters of Amendment 1. Id. at 13, Page ID 3024.

         The State officials tabulated the votes after the November 2014 election. A total of 1, 430, 117 individuals voted, of whom 1, 353, 728 voted for a gubernatorial candidate. Even more votes-1, 386, 355-were cast on Amendment 1. For the first time since Article XI, Section 3 was amended in 1953, more votes were cast on a proposed amendment than were cast for governor. Id. at 16, Page ID 3027. The voters favoring Amendment 1 numbered 729, 163 and those opposed numbered 657, 192. The State officials announced their preliminary determination that Amendment 1 had passed because a majority of the votes cast on the amendment were "yes" votes and because the number of "yes" votes was also greater than a majority of the votes cast for governor. On December 8, 2014, the State officials certified the election results, including the vote on Amendment 1. Id.

         B. Procedural Background

         Three days after the November 4, 2014 election, plaintiffs filed a complaint in the district court, which they later amended. The amended complaint alleged that the State officials, by their erroneous interpretation of Article XI, Section 3, employed a vote-counting method that (1) violated plaintiffs' due-process rights by creating a fundamentally unfair voting system, and (2) violated plaintiffs' equal-protection rights by diluting their votes. R. 51, Amended Complaint, Page ID 596-600.

         Plaintiffs sought a judgment declaring that Article XI, Section 3 required the State officials to count only the votes of those who voted in the gubernatorial race, that the State officials' method of tabulating votes violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and that the election results were void. Plaintiffs also sought an injunction requiring a recount of the vote on Amendment 1, as well as costs and attorneys' fees.

         In response, the State officials moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted. They also asked the district court to either decline to decide the case under the Pullman abstention doctrine or certify the question of how to interpret Article XI, Section 3 to the Tennessee Supreme Court. In July 2015, the district court denied the motion to dismiss ...


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