Tracey George v. Tre Hargett, 879 F.3d 711

Background

In Nov. 2014 Tennessee voters decided Amendment 1 (stating the state constitution does not secure a right to abortion). The Secretary of State certified that the amendment passed. 1,386,355 votes were cast on the amendment; 1,353,728 voted in the gubernatorial race. Yes: 729,163; No: 657,192.
Article XI, §3 provides that an amendment proposed by the legislature becomes part of the Constitution if it is approved by a majority of those voting for governor voting in its favor; the text is ambiguous about whether only votes of persons who also voted for governor count.
State election officials had long interpreted §3 to (1) require a majority of amendment votes over no votes and (2) require the number of yes votes to be a majority of the total votes cast for governor, counting totals irrespective of which individual cast which votes; this interpretation was publicly posted before the election.
Plaintiffs (eight Tennessee voters who voted against Amendment 1) sued under 42 U.S.C. §1983, alleging the State officials’ counting method violated due process (fundamental unfairness) and equal protection (vote dilution). The district court found for plaintiffs and ordered a recount counting only amendment votes cast by voters who also voted for governor.
The State officials filed a state-court declaratory action; the state trial court ruled the officials’ interpretation of §3 was correct. That state judgment became final and, on appeal, the Sixth Circuit held it entitled to preclusive effect, reversing the district court and directing judgment for the State officials.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper interpretation of Tenn. Const. Art. XI, §3 (vote-counting rule)	§3 requires counting only amendment votes cast by those who also voted for governor (literal reading)	§3 requires (1) majority of amendment votes and (2) yes votes ≥ majority of total gubernatorial votes; counting is by totals regardless of who cast them	State court interpretation (totals-based) is reasonable and, as final, preclusive; district court’s contrary interpretation supplanted
Preclusive effect of state-court declaratory judgment	Plaintiffs: state ruling was not a justiciable final adjudication affecting 2014 election and thus not preclusive	Defendants: state declaratory judgment was final and fully litigated; issue identical; preclusion applies	State judgment met Tennessee collateral-estoppel elements and is preclusive between the parties
Due process (Anderson–Burdick framework) — was the voting system fundamentally unfair?	The counting method was fundamentally unfair and imposed a more-than-minimal burden (diluted some votes)	The method imposed at most a minimal burden; it was longstanding, nondiscriminatory, and rationally related to legitimate state interest	No due-process violation; only minimal burden justified by state interest in broad ratification threshold
Equal protection (vote dilution/classification)	Plaintiffs’ votes were diluted because voters who abstained from the governor race could affect the ratification threshold differently, creating unequal treatment	The system treats all votes uniformly; any differential result derived from private strategic choices, not state action or invidious classification	No equal-protection violation; no governmental classification or unequal treatment warranting federal relief

Key Cases Cited

Anderson v. Celebrezze, 460 U.S. 780 (1983) (framework for reviewing burdens on voting rights)
Burdick v. Takushi, 504 U.S. 428 (1992) (Anderson–Burdick balancing; scrutiny depends on burden severity)
Bush v. Gore, 531 U.S. 98 (2000) (equal protection protects against vote debasement or dilution)
Reynolds v. Sims, 377 U.S. 533 (1964) (constitutional principle that vote weight must be equal)
Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) (application of Anderson–Burdick in this circuit)
Allen v. McCurry, 449 U.S. 90 (1980) (comity and preclusion considerations between state and federal courts)