Tracey E. George, et al., Plaintiffs-Appellees,
Tre Hargett, et al., Defendants-Appellants.
Argued: August 2, 2017
from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:14-cv-02182-Kevin H. Sharp,
K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellants.
William L. Harbison, SHERRARD ROE VOIGT & HARBISON, PLC,
Nashville, Tennessee, for Appellees.
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.
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.
KEAGUE, Circuit Judge.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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 ...