Anita Wadhwani

awadhwani@tennessean.com

State election officials are calling a lawsuit claiming votes were incorrectly tabulated on abortion measure Amendment 1 “absurd” and without merit.

The measure giving lawmakers more power to enact abortion restrictions passed on Tuesday with 53 percent of the vote, with organizers of the “Yes on 1” campaign claiming victory and organizers of the “No on One” campaign conceding defeat.

But on Friday, opponents of the measure filed a federal lawsuit, challenging the method election officials are using to count ballot measure votes. The lawsuit asks the court to intervene to either force election officials to recount the vote or to invalidate it.

The first hearing in the case is set for U.S. District Court in Nashville on Jan. 12.

For an amendment to pass, according to the state constitution, voters must “approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor.”

Attorneys who filed the suit say this means the state must count only the votes of those who cast ballots in both the governor’s race as well as on Amendment 1. They noted that there was a concerted effort to ask voters to vote only in the amendment race to make its passage more likely.

Instead, state election officials, as they have in every referendum measure since 1950, count a majority of the votes cast in the governor’s race as creating a threshold number for a referendum to pass.

“I’m not sure why they filed this in federal court,” Secretary of State Tre Hargett said. “People have the right to vote or not vote in the governor’s race. It does not make sense any other way.”

But attorney Bill Harbison, who filed the suit on behalf of eight voters who voted “no” on Amendment 1 and voted in the governor’s race, said there was a clear effort on the part of the “Yes” campaign to urge “intentionally abstaining from the governor’s race in an effort to manipulate the numbers in order to pass an amendment.”

The language in the Tennessee Constitution is “not ambiguous,” he said. Asked whether challenging decades of counting methodology could challenge numerous referendums that have passed in the past — including the creation of the state lottery — Harbison said the lawsuit was focused narrowly on the outcome of Amendment 1.

“Our view is it doesn’t matter how it has been counted in the past,” Harbison said. “The election commission needs to follow” the constitutional language, he said.

Hand count could be needed

Should the lawsuit succeed, election officials said they would need to research what would need to be done to count only those votes cast in the governor’s race and the amendment to determine its outcome.

“Certainly it would be a difficult task,” said Mark Goins, coordinator of elections. “We have to audit every voting machine across the state and visibly look to see whether we can.”

The effort could eventually require a hand count of every ballot.

“It is absurd,” Goins said. “Not a normal argument.”

It’s unclear whether a recount would change the outcome. About 30,000 more people voted on Amendment 1 than did for governor. However, the measure won by 70,000 votes. Harbison said the votes are not official and don’t include the counting of provisional ballots.

Frank Daniels III contributed to this report. Reach Anita Wadhwani at 615-259-8092 and on Twitter @AnitaWadhwani.

Vote totals

1,352,608

Votes cast for governor

676,305

Threshold for a constitutional amendment to pass

Amendment 1

1,385,178

Total votes cast

728,751

Yes votes

656,427

No votes