Early voting in Tennessee’s midterm elections has started, and voters are being asked to do more than select elected officials. Tennesseans will be voting on four proposed amendments to the state constitution.
In order to break down the amendments, The Daily Helmsman talked to Brian Fitzpatrick, a professor at Vanderbilt Law School in Nashville, Tennessee, who explained Amendments 1 through 3. Ronald Rychlak, a professor at the University of Mississippi School of Law in Oxford, Mississippi, explained Amendment 4.
Amendment 1:
“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”
Background Information
Neither the United States nor Tennessee’s constitutions have any specific language about abortion included in them. It has been the federal and state supreme courts’ interpretations of the constitutions that have allowed certain protections for abortions. The Tennessee constitution is unique in that it has been interpreted to have even more protection for abortion than the United States constitution. This adds a layer of difficulty for those seeking to legislate abortion, as Fitzpatrick explains.
“What it means is that the Tennessee legislature cannot pass regulations on abortions that other states can pass because other states are just bound by the U.S. constitution’s abortion protection,” Fitzpatrick said.
Even so, the Tennessee legislature is not currently prohibited from passing any regulations on abortion, Fitzpatrick said.
“Some regulation is permissible and is currently on the books but it’s not as tightly regulated as it is in other states,” Fitzpatrick said.
What happens if it passes?
“Voting yes on amendment one will remove the protection for abortion at a state level. This means that the broader protection that abortion has in Tennessee will no longer exist and that abortion will only be protected at the federal level,” Fitzpatrick said.
The passage of Amendment 1 will also allow the Tennessee legislature to pass more regulations on abortion, including those that have previously been struck down under Tennessee’s current constitution. Tennessee would then have the same protections for abortion other states have, as Fitzpatrick explains.
“The United States constitutional right [to abortion] is still there, that’s not changing,” Fitzpatrick said. “What it will mean is that the legislature will now be able to pass the same regulations that can be passed in other states.”
Amendment 2
“Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.”
Background Information
Fitzpatrick explained that since 1853, the state constitution has said that judges must be elected. In the 1970’s, the legislature began to handle appellate court judge selection differently.
When an opening on the courts came up, a bi-partisan commission would send possible names to the governor. The governor would then appoint the judge and several years later, the people were able to vote in a retention election.
Retention elections allow voters to either say yes or no to keeping the judge on the bench. There is no opponent. As Fitzpatrick explains, there were those who criticized this method.
“People got upset when the legislature did this because they thought that this new system was really not complying with the constitutional requirement to have elections for judges,” Fitzpatrick said.
In 1978, an amendment similar to Amendment 2 was presented to the voters, seeking to eliminate the voting requirement and allowing governor appointments. The amendment did not pass, but the legislature continued with the appointment procedure.
A number of lawsuits were filed challenging this process, Fitzpatrick said. The members of the state Supreme Court recused themselves, believing it to be a conflict of interest to preside over a case that decided whether the process used to appoint them was constitutional.
For each case, a special supreme court was selected, and each time the courts ruled that retention elections did meet the constitutional standard for electing judges.
As it stands now, judges are initially appointed by the governor from candidates provided by a committee and the people are able to vote to retain those judges every eight years.
What happens if it passes?
If the amendment passes it eliminates the constitutional requirement for electing judges, but since the retention election is provided for in the amendment, it is very similar to the current process with one big change.
“The amendment would insert the legislature into the process,” Fitzpatrick said.
Fitzpatrick compared it to the system currently in place to select judges at the federal level. The president nominates a judge and the senate is able to confirm that nominee. The only difference, Fitzpatrick said, is that federal judges are appointed for life. Term limits for Tennessee judges would be decided by retention elections.
Amendment 3
“Notwithstanding the authority to tax privileges or any other authority set forth in this Constitution, the Legislature shall not levy, authorize or otherwise permit any state or local tax upon payroll or earned personal income or any state or local tax measured by payroll or earned personal income; however, nothing contained herein shall be construed as prohibiting any tax in effect on January 1, 2011, or adjustment of the rate of such tax.”
Background Information
Tennessee has never had an income tax on personal income. The state constitution does not specifically prohibit it, and in 2011 a measure to pass an income tax on personal income failed by just five votes in the legislature.
While there is no tax on personal income, Tennessee does have a tax on personal investments.
What happens if it passes?
If the amendment passes, it would make it illegal for the state legislature to ever implement an income tax on personal income, though Fitzpatrick believes that there is little chance of that happening in any case.
“Even if we don’t pass Amendment 3 it doesn’t mean we’ll have an income tax,” Fitzpatrick said. “We don’t have one now and there is no prospect of having one anytime soon.”
Amendment 4
“All other forms of lottery not authorized herein are expressly prohibited unless authorized by a two-thirds vote of all members elected to each house of the general assembly for an annual event operated for the benefit of a 501(c)(3) organization located in this state, as defined by the 2000 United States Tax Code or as may be amended from time to time, and by substituting instead the following language:
All other forms of lottery not authorized herein are expressly prohibited unless authorized by a two-thirds vote of all members elected to each house of the general assembly for an annual event operated for the benefit of a 501(c)(3) or a 501(c)(19) organization, as defined by the 2000 United States Tax Code, located in this state.”
Background Information
In 2002, an amendment to the state constitution was passed by voters allowing a state lottery and giving some charitable organizations the option to have an annual lottery fundraiser. Only 501(c)(3) groups were afforded that opportunity.
Veterans groups are classified as 501(c)(19). Lottery based fundraisers are currently illegal for these organizations.
Gambling is otherwise prohibited in the state of Tennessee.
What happens if it passes?
“Tennessee amendment four is really a matter of letting veterans associations, veterans charity groups, have an annual raffle or other kind of chance event,” Rychlak said.
According to Rychlak, The passage of amendment four would allow veterans groups, classified as 501(c)(19) organizations, to have the same opportunity to hold lottery type fundraisers that other non-profits currently do. Since new groups will be able to take advantage of these lottery fundraisers, instances of gambling under that heading would likely increase, but as Rychlak points out, Memphis won’t be becoming Las Vegas any time soon.
“Across the state of Tennessee there will be more raffles or more things because some groups that cannot have one will be able to have one,” Rychlak said. “It doesn’t open up new categories of gambling or anything like that.”
How do amendments pass?
Each of the four amendments appear on the ballot this election after having passed through the legislative amendment process. Voters now have the opportunity to vote yes or no to each amendment, a yes vote meaning the voter wants the proposed amendment added to the constitution.
To pass, each amendment must receive a majority of “yes” votes based on the number of people who vote in the governor’s race. For example, if 100 people vote in the governor’s race, a minimum of 51 people must vote yes on any one amendment before it is adopted.
