Constitutional Amendments

Four constitutional amendments await voters in November

Four ballot measures are certified for the November 4 statewide ballot in Tennessee. The measures are all legislatively-referred constitutional amendments involving four distinct issues—abortion, the state judiciary, taxes, and gambling.

Amendment 1. The “Tennessee Legislative Powers Regarding Abortion Amendment” is Amendment 1 on the November ballot. The measure would insert constitutional language empowering the legislature to enact, amend, or repeal state statutes regarding abortion, including for pregnancies resulting from rape or incest or when necessary to protect the mother’s life.
Amendment 1 reads “Nothing in this Constitution secures or protects a right to abortion or requires the funding for an abortion. The people retain the right through their elected state representatives and state senators to enact, amend or repeal state 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.”
A “yes” vote on Amendment 1 would amend the Tennessee Constitution to give lawmakers more authority to enact abortion restrictions, while a “no” vote would preserve the protections which courts have held are provided by the state constitution.
Tennessee lawmakers already have the ability to pass some abortion regulations and have enacted a ban on the use of tele-medicine, or video conferences, between doctors and patients who were prescribed miscarriage-inducing drugs. Another recently enacted law requires doctors who perform abortions to have admitting privileges at local hospitals. This law was credited with the closing of two abortion clinics—one in Knoxville and one in Memphis—that could not comply with the new requirement. Tennessee now has seven abortion clinics, down from 16 in 2000, but still more than in any other neighboring state except North Carolina.
In 2000, Tennessee Supreme Court ruled in Planned Parenthood v. Sundquist, 38 SW3d 1 (Tenn. 2000), that the Tennessee Constitution contained a stronger right to privacy and abortion than the U.S. Constitution. Proponents of Amendment 1, including “Yes on 1,” the organization leading the campaign in support of the initiative, argue that since the issuance of the Planned Parenthood decision in 2000, Tennessee has become an “abortion destination” for other states. Proponents claim that passage of Amendment 1 in November will allow the legislature to enact any regulations and restrictions with regard to abortions that are allowed by the U.S. Supreme Court.
“Vote NO On One Tennessee, Inc.,” the organization leading the campaign against the amendment, argues that, in simple terms, Amendment 1 says two things—first, there is absolutely no right to an abortion and that politicians can pass laws for exceptions in the case of rape or incest, or when a woman’s life is in danger, if they choose to, and second, that there are no guaranteed exceptions for women who are victims of rape or incest, or when a woman’s health is in danger as a result of a pregnancy.

Amendment 2. The “Tennessee Judicial Selection Amendment” is Amendment 2 on the November ballot. The measure would empower the governor to appoint judges to the Tennessee Supreme Court or any other state appellate courts subject to confirmation by the General Assembly. The appointed judge would serve an eight-year term. Thereafter, the judge could serve another term via a retention election by voters.
The measure would largely constitutionalize the state’s current system, i.e., the “Tennessee Plan,” but would dismantle the Judicial Nominating Commission and empower the legislature to confirm or reject appointments. This proposed process mirrors how federal judges are selected.
Amendment 2 reads: “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.”
Currently, the Tennessee Constitution requires that all appellate court judges be elected by the citizens of the state. But since 1971, Tennessee has had some form of a merit-selection plan. In 1994, the General Assembly adopted a merit-selection plan, in which all appellate court judges are initially selected by the governor, from nominees selected by a Judicial Selection Commission. Voters later decide at the ballot box whether to retain those judges by a “yes” or “no” vote on each judge. If the Judicial Evaluation Commission does not recommend a judge for retention, that is to be included on the ballot. The Tennessee attorney general has opined that these retention election fulfill the constitutional mandate to “elect” judges.
Amendment 2 has gained support from some prominent political leaders, including Gov. Bill Haslam, former governors Phil Bredesen and Winfield Dunn, and former U.S. Senator Fred Thompson. The Tennessee Bar Association (TBA) has also announced its support for Amendment 2, noting that if it does not pass, more legal challenges could ensue, along with continued disagreements and confusion about the judicial selection process, leading to a destabilization and weakening of the Tennessee judiciary. In addition, the TBA notes, failure to pass Amendment 2 could lead to contested, partisan elections of appellate judges, which would bring the “corrupting factor of money and politics into our appellate courts.”

Amendment 3. The Tennessee Income Tax Prohibition Amendment” is Amendment 3 on the November ballot. This measure would remove the legislature’s authority to impose any new income taxes.
Amendment 3 reads: “Notwithstanding the authority to tax privileges or any other authority to set forth in this Constitution, the Legislature shall not levy, authorize or otherwise permit 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”
If Amendment 3 is ratified, neither the state nor the city or county governments could tax earned income like wages and salaries, although the state could continue taxing dividends and interest. If Amendment 3 is rejected, the issue of a state general income tax is left ambiguous in the Tennessee Constitution, which now grants the legislature the power to tax all property, whether real, personal, or mixed but excepts from taxation “the direct product of the soil in the hands of the producer, and his immediate vendee, and the entire amount of money deposited in an individual’s personal or family checking or savings accounts.”
The Tennessee Supreme Court has ruled twice—first in 1932 and again in 1960—that a general income tax is unconstitutional because the state constitution does not explicitly allow it.
The legislature has considered a state income tax three times since the court’s last ruling—in 1985, 1991, and the sessions of 1999 to 2002. Three state attorneys general issued opinions saying they believed the income tax schemes being considered might be upheld in court because the state constitution does not explicitly prohibit a general income tax.
The legislature voted on an income tax plan only once during those three debates—in 2001, when a 4% income tax with a $7,000 per person exemption was coupled with a reduced sales tax rate and abolishment of the sales tax on food. That plan fell five votes short of passage in the House, and it never came to a vote in the Senate. Tennessee is one of only eight states without a general personal income tax, but is one of two of those (along with New Hampshire) that taxes dividend and interest income.

Amendment 4. The “Tennessee Charitable Gaming Amendment” is Amendment 4 on the ballot. The measure would empower the legislature to authorize lotteries via a two-thirds vote for annual events that benefit veteran’s organizations—501(c)(19) groups—in addition to 501(c)(3) non-profit groups.
Amendment 4 would amend Article XI, Section 5 of the Tennessee Constitution—the same section approved by voters in 2002 to authorize the Tennessee Lottery—to add veterans groups to the list of charitable organizations whose IRS-granted 501(c)(3) non-profit status allows them to hold annual gambling fundraising events.

Originally published in Tennessee Attorneys Memo

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