George v. Haslam
| Decision Date | 01 July 2015 |
| Docket Number | No. 3:14–02182.,3:14–02182. |
| Citation | 112 F.Supp.3d 700 |
| Parties | Tracey E. GEORGE, et al., Plaintiffs, v. William Edward "Bill" HASLAM, as Governor of the State of Tennessee, in his official capacity, et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
William L. Harbison, C. Dewey Branstetter, Jr., Hunter C. Branstetter, Phillip F. Cramer, Sherrard & Roe, Nashville, TN, for Plaintiffs.
Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN, for Defendants.
This case presents a constitutional challenge to the method by which votes cast at the November 4, 2014 state and federal general election in Tennessee were counted. Specifically, Plaintiffs are eight registered voters who claim that their rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution were violated because their votes against Constitutional Amendment 1 to the Tennessee Constitution ("Amendment 1"), which was on the ballot, were improperly diluted.
Defendants now move to dismiss the First Amended Complaint, and that Motion (Docket No. 52) has been fully briefed by the parties (Docket Nos. 53, 57 & 60). For the reasons that follow, Defendants' Motion will be denied.
On November 4, 2014, Tennessee held a general election. Among other things, voters could cast their votes for governor, and vote on four proposed Amendments to the Tennessee Constitution. Proposed Amendment 1, which is at issue in this case, asked:
According to the Tennessee Secretary of State, the official results of the November 4, 2014 general election reflect that a total of 1,353,728 votes were cast in the Governor's race. Those results also reflect that 729,163 votes were cast in favor of adoption of Amendment 1, while 657,192 votes were cast in favor of rejection of Amendment 1.
Defendants assert that, because the number of votes cast in favor of adoption of Amendment 1 exceeded the number of votes cast by a majority (i.e., 676,865) of the citizens of the State voting in the Governor's race, Governor William Haslam, Secretary of State Tre Hargett, and Attorney General Herbert Slatery III certified on December 8, 2014, that Amendment 1 had been ratified. Further, because the votes cast in favor of adoption of the other three proposed constitutional amendments likewise exceeded the number of votes cast by a majority of the citizens of the State voting for Governor, those three constitutional amendments were also certified as having been ratified.
Plaintiffs voted in the gubernatorial race on November 4, 2014, and voted not to approve Amendment 1. They claim that the method used to count the votes in favor of Amendment 1 violated Article XI, Section 3 of the Tennessee Constitution, which states:
Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals with the yeas and nays thereon, and referred to the General Assembly then next to be chosen; and shall be published six months previous to the time of making such choice; and if in the General Assembly then next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by two-thirds of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the people at the next general election in which a governor is to be chosen. And 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, Section 3 (emphasis added).
Plaintiffs allege that, notwithstanding, Article XI, Section 3's mandate that proposed amendments must be approved by "a majority of all citizens of the state voting for governor, voting in their favor," Defendants tabulated the vote on Amendment 1 by examining the number of total votes in favor of Amendment 1, regardless of whether the voter also voted for governor. In this regard, Plaintiffs allege:
Whereas the state constitution's text demands that Amendment 1 will only pass if it is approved "by a majority of all the citizens of the state voting for governor, voting in [its] favor," Tenn. Const. Art. XI, § 3, Defendants have essentially re-written Section 3 to say that Amendment 1 would pass if "the number of citizens of the state voting in its favor equals or exceeds the number of votes required for a majority in the governor's race." Put differently, if [total votes in favor of Amendment 1] / [total votes for governor] > ½, then, according to Defendants, Amendment 1 would be ratified. Defendants counted the votes on Amendment 1 without first establishing whether each "yes" voter met Section 3's threshold of having also voted for governor.
(Docket No. 51, Amended Complaint ¶ 7).
Plaintiffs further allege that "[r]egardless of whether Defendants' tabulation method was contrary to or consistent with Article XI, Section 3," the "pre-announced tabulation method" was part of a "coordinated scheme" that "incentivized proponents of Amendment 1 to forego their own right to vote in the governor's race so as to add ‘yes' votes without increasing the number of votes needed to surpass a majority of votes cast in the governor's race." (Id. ¶ 8). This chosen method, according to Plaintiffs, "encourage[d] the efforts of some voters to manipulate the system by voting for Amendment 1 and expressly not voting in the governor's election," at the expense of those, like Plaintiffs, "who complied with the Tennessee Constitution, engaged fully in their civic duty to vote, and exercised their right to vote for governor," and whose votes were "diluted." (Id. ¶¶ 9 & 11).
Plaintiffs further allege that, with regard to Amendment 1, "for the first time, a concerted campaign was launched with the support of Defendants' tabulation method to double count ‘yes' votes at the expense of ‘no voters,’ " and that "[f]or the first time in the history of the State, votes on a constitutional amendment outnumbered the votes in the governor's race." (Id. ¶ 14). They claim that Amendment 1 may very well not have passed "if votes were correctly tabulated" because "[t]he voter turnout data released by Defendants confirmed that as many as 76,000 votes in favor of Amendment 1 may have been improperly tabulated, which would result in Amendment 1 falling short of passage by 24,000 votes." (Id. ¶ 15).
The Amended Complaint is in two counts, both asserting a violation of the Fourteenth Amendment. In Count I, Plaintiffs contend that they were denied due process as result of a "fundamentally unfair voting scheme," and in Count II, they allege the denial of equal protection due to "disenfranchisement through vote dilution."
Plaintiffs request a declaration that (1) Article XI, Section 3 of the Tennessee Constitution requires that only voters who voted for governor may have their votes on Amendment 1 counted to determine whether the amendment is ratified; (2) Defendants' vote tabulation method, regardless of its compliance with Article XI, Section 3, violates both the due process and equal protection clauses; and (3) the results for the November 4, 2014 election, as currently certified by Defendants, are void. They also seek an injunction requiring Defendants to comply with the counting mechanism prescribed in Article XI, Section 3, or, if Defendants are unable to count the votes in compliance with the constitution, a declaration permanently voiding the vote on Amendment 1 in the November 4, 2014 election.
Defendants move to dismiss the Amended Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure on two grounds. First, they argue dismissal is warranted under Rule 12(b)(1) for lack of subject matter jurisdiction because Plaintiffs have no standing to pursue their claims. Second, they argue that under Rule 12(b)(6), the Amended Complaint fails to state a claim upon which relief may be granted. As an alternative to outright dismissal, Defendants request that this Court either abstain from hearing this case, or certify the question of the proper interpretation of the Tennessee constitutional provision to the Tennessee Supreme Court.
The Court necessarily begins with Defendants' jurisdictional arguments because a court must address "questions pertaining to its jurisdiction before proceeding to the merits," Tenet v. Doe, 544 U.S. 1, 6 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005), and "the issue of standing ... is properly considered an attack on the court's subject matter jurisdiction under Rule 12(b)(1)," Allstate Ins. Co. v. Global Med. Billing, Inc., 520 Fed.Appx. 409, 410–11 (6th Cir.2013). The Sixth Circuit has summarized the applicable standard of review as follows:
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