NASHVILLE, Tenn. (WKRN) — It’s challenging to get an amendment to the Constitution to a vote in Tennessee. It would have to pass one General Assembly by a majority vote and then another by a two-thirds vote.
The amendment would then be on the ballot, and that’s where it gets a little funky.
“First, the amendment has to get more yes votes than no votes. But then there’s a second threshold,” Secretary of State Tre Hargett (R-Tennessee) said. “It has to achieve at least 50% plus one of the number of votes cast in the governor’s race.”
Now, this does NOT mean you have to vote in both the governor’s race and the amendments for your amendment vote to count. That’s a common misconception.
“We think you should vote in every race. I’m a firm believer, go and be an educated consumer with your vote, vote in every race. But there’s no prerequisite to vote on those constitutional amendments,” Hargett said. “In fact, if you wanted to, you could go and vote on the constitutional amendments and nothing else. You could go vote on some of them, not all of them. You could vote in every race but the constitutional amendments.”
The way it works in Tennessee is the government takes all votes for governor and divides them by two to determine the threshold necessary for an amendment to pass. If the number of ‘yes’ votes for an amendment is greater than the number of ‘no’ votes and is greater than 50% of the votes for governor, the amendment passes.
For example, say 16 people vote in this year’s election. Of those 16, all vote for governor, while only 10 vote for Amendment II. Of those 10, if there are more ‘yes’ votes on Amendment 2 than ‘no’ votes, AND that number is greater than eight – half the number of votes for the governor – then the amendment passes.
“I think it’s all based on making it difficult but not impossible to amend the constitution,” UT Baker Center Director of Policy Partnerships Prof. Bill Lyons said.
Tennessee’s method of amending the constitution is interesting. Though it rarely happens, it could potentially allow for a party to sway the vote, at some level.
“If you go into the voting booth saying, ‘I’m here mainly because I’m concerned about an amendment’s passing,’ then, it would actually be in your strategic interest, many feel, to just not vote for governor,” Lyons said.
By only voting for an amendment, the number of votes for governor theoretically decreases, lowering the number of votes needed to pass that amendment.
We’ll use the same example as above. But instead of 16 people voting in the governor’s race above, only 10 of 16 do while also voting on Amendment 2. Then, instead of needing more than eight (half of 16) ‘yes’ votes, it would only need more than five (half of 10).
“Obviously, most people are going to want to vote for governor,” Lyons said. “The exception being if they figure if the race is just not competitive and makes no difference, which is what the 2014 election was.”
In 2014, former governor Bill Haslam was expected to win easily in his re-election campaign – which he did, carrying every county in the state by a wide margin, even Shelby and Davidson Counties.
In that same election, Amendment 1 was a vote on abortion access in the state—a close, polarizing vote. With Haslam expected to run away with the governor’s race, some speculated that many Republicans chose not to vote for governor but for Amendment 1 only. The amendment passed by fewer than 75,000 votes.
The election culminated in a court case (George v. Haslam) led by Tracey George, who was the board chair of Planned Parenthood of East and Middle Tennessee at the time. Plaintiffs, mostly Democrats, alleged “a concerted campaign was launched with the support of Defendants’ tabulation method to double count ‘yes’ votes at the expense of ‘no voters.’”
The plaintiffs argued that the method in which Tennessee tabulates amendment votes is unconstitutional.
After nearly four years of the case navigating its way through appeals and the legal process, the U.S. Court of Appeals for the Sixth Circuit sided with the state in January 2018. The plaintiffs then appealed to the U.S. Supreme Court, which officially declined to hear the argument in October 2018.
That brings us to now and our current method of tabulating amendment votes, which was confirmed by the George v. Haslam case.
Now, both Hargett and Lyons said the same thing—they’re not really concerned about the same scenario happening this year. Hargett said his office’s job isn’t to worry about that; it’s to count the votes the way the law tells it to.
“I don’t worry about that because our job, frankly, is to count them,” he said. “We want to make sure every citizen knows that they can vote in any of those races, some of those races, or only one of those races, if they want to.”
Particularly with low voter turnout looking inevitable, it’d be a risk for either party.
“It could be possible that somebody could employ a calculus if they felt strongly enough about one of the amendments,” Lyons said. “To tell you the truth, I don’t think very many people are going to do it.”