Categories: Judicial

Opponent of Tennessee’s Amendment 1 readily concedes it passed fair and square


By Dave Andrusko

In the latest digital edition of National Right to Life News, we wrote about the cranky, convoluted, content-free lawsuit filed against the passage of Tennessee’s “Amendment 1.” (See “Sore losers in Tennessee file frivolous lawsuit to negate passage of Amendment 1 in Tennessee,” which can be read at

In that story, we first noted that passage culminated a 14-year-long battle to address a 2000 decision by the Tennessee Supreme Court holding that “A woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution.” As a result of that 4-1 decision, a bevy of commonsense pro-life measures were immediately stricken.

The lawsuit is a variation of the common complaint by pro-abortion Democrats this year– that the “wrong” electorate had voted. Here’s the background.

Passage required 50% +one of all those who had voted for governor, a decided disadvantage for proponents. If you voted for governor but did not bother to vote for the Amendment, it was as if you voted “no.”

The lawsuit took this advantage for opponents and turned it on its head. They argue that each vote should be hand counted. They want any ballot in which someone voted for Amendment 1 but skipped voting in the race for governor thrown out. In lieu of that, void the election and hold another.

There have been additional wrinkles since. In a second, we will talk about an opinion piece written by an authority who hates Amendment 1 but is honest enough to admit it passed fair and square.

But to return to the “wrong electorate” argument. One particularly profane commentator (after the pro forma insistence that there had been voter suppression) argued, “Here’s the thing. Amendment 1 received 729,000 votes, which, yes, was the majority of voters. But there are six and a half million people in Tennessee. I know this goes without saying, but eleven percent of the population is not a majority of Tennesseans.”

Two quick responses. First, that’s the way elections work in a democracy. If you vote, your voice counts. If you don’t, it doesn’t.

Second, if you look at the polling conducted before the election, the people of Tennessee supported Amendment 1. In a survey of 600 likely voters conducted October 19-21, Public Opinion Strategies read the entire Amendment to its respondents.

And 49% said they would vote in favor of Amendment 1 to only 37% who said they would vote against. The numbers were virtually unchanged from March 2013.

Again, the point is elections are decided by who votes, not who doesn’t. In this case, however, there was also solid evidence that Amendment 1 was supported by the people as a whole, including those who did not vote.

And then there is the opinion piece written for The Tennessean by Daniel Horwitz, headlined, “Amendment 1 plaintiffs on shaky legal ground.” Mr. Horwitz is described as an election law attorney in Nashville and a former judicial law clerk for Tennessee Supreme Court Chief Justice Sharon G. Lee.

He makes his own position clear in the first sentence: “Let’s be clear about something: Amendment 1 should never have passed.” But his legal conclusion is no less clear in the last two sentences of that first paragraph: “Whether Amendment 1 did pass, however, is a similarly easy question to answer. It did.”

Mr. Horwitz offers several reasons why this is so which you can read at  Here’s the conclusion:

Finally, in Dunn v. Blumstein, the Supreme Court explained that “In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” The result that the plaintiffs seek in this case, however — counting only the votes of citizens who participated in the governor’s race, and throwing out everyone else’s — plainly undermines this view. It will be, and should be, rejected accordingly.

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