Language Interpretation

[Gary Novosielski]

I ran across this news article the other day that hinges on a very nuanced interpretation of language relating to a voting threshold in state law in Tennessee for constitutional amendments submitted to a referendum vote. A judge has ordered a recount of a vote on an amendment that was on the 2014 ballot, now being disputed in the courts.  I note it here not as a question, but as an item that may interest the regulars here.

 

The language in question is: 

Quote

"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 part of this Constitution."

The question of interpretation is: does the total vote in favor of amendment merely need to numerically exceed half the votes cast for Governor, or, are only the votes of individuals who actually voted for Governor to be counted in deciding the adoption of the amendment?   Which interpretation is chosen would might, in this case, affect the outcome of the vote.

 

Apparently, those in favor of the amendment (which would amend the state constitution to expressly eliminate the right to abortion) had been counseling voters to abstain in the Governor's race, lowering the gubernatorial vote count and therefore the threshold for passage of the amendment.  Opponents of the amendment favor the alternate interpretation, which would provide that the votes of those abstaining for governor would not be counted in deciding the amendment.

For a more complete discussion and a link to the legal ruling:  Read article.

[Sean Hunt]

For some reason I thought this thread was going to be about programming languages.

[Richard Brown]

Very interesting!!  Thank you,  Gary!  I just read the article and now plan to read the 50 page opinion.  Ugh.  Good thing I enjoy reading those things. 

[Shmuel Gerber]

I agree this is interesting (although it doesn't seem to have anything to do with parliamentary procedure according to RONR).

And the day before the federal judge in this case ruled that only the votes of those who voted for governor should be used in determining how many votes in favor of the amendment are needed for it to pass, a state judge ruled differently. And each judge said that his own interpretation was in accord with the unambiguous meaning of the provision.

If you ask me, the federal judge interpreted the words correctly and the other interpretation is bogus. By the way, that other interpretation was not simply that the total vote in favor of amendment needs to numerically exceed half the votes cast for Governor. The (state) ruling was that the sentence

"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."

means that a proposed amendment needs to be "approved" by receiving a majority of the votes cast for the amendment, and also be "ratified" by receiving a number of votes -- regardless of which set of voters cast them -- constituting a majority of the total votes cast in the gubernatorial election.

[jstackpo]

Another fine point (I haven't read the article - is this point made there?) is that it sets up a unique situation in which how you vote (or abstain) in one portion of a multiple issue ballot could effect how the outcome is determined for some other logically independent issue.

This, as we all know, is contrary to RONR's rule for ballot counting, p. 416-417.  Although the good folks of Tennessee (or their law writers) probably didn't avert to this point (or give a damn), it is another fine example of the trouble one gets into when you depart from RONR in the details.

It also suggests that that the citizens of Tenn cannot amend their constitution (by referendum) unless they are voting in a gubernatorial race at the same time  --  once every four years, per good old Wikipedia.

[Dan Honemann]

7 hours ago, Shmuel Gerber said:

If you ask me, the federal judge interpreted the words correctly and the other interpretation is bogus. By the way, that other interpretation was not simply that the total vote in favor of amendment needs to numerically exceed half the votes cast for Governor. The (state) ruling was that the sentence

"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."

means that a proposed amendment needs to be "approved" by receiving a majority of the votes cast for the amendment, and also be "ratified" by receiving a number of votes -- regardless of which set of voters cast them -- constituting a majority of the total votes cast in the gubernatorial election.

Well how about saving me from having to read all this stuff.

Suppose only 500 people vote in the gubernatorial election, but 1,000 people vote on the amendment (including the 500 who voted in the gubernatorial election), 300 voting for it (all of whom voted in the gubernatorial election), and 700 voting against it. If I understand you correctly, the state court says that the amendment is not adopted, but the federal court says that it is.

Have I got this right? I find it hard to believe that I do.

[Joshua Katz]

Well, I can see two ways to make this interpretation work, neither of them very good.  One is as suggested above by Dr. Stackpole.  The other would be to require those voting on the referendum to be willing, if it would determine the outcome, to reveal how they voted. 

[Dan Honemann]

I did take a quick look at the federal court's opinion, and it does appear to say that, according to Tennessee's Constitution, voting for governor is a precondition to voting for or against an amendment.

1,353,728 votes were cast in the gubernatorial election. In voting for or against the amendment, 729,163 votes were cast in favor and 657,192 were cast against. So even although 727,163 was more than half of the votes cast in the gubernatorial election, and more than half of the votes cast on the amendment, the federal court ordered a recount.

 

[Shmuel Gerber]

3 hours ago, Daniel H. Honemann said:

Suppose only 500 people vote in the gubernatorial election, but 1,000 people vote on the amendment (including the 500 who voted in the gubernatorial election), 300 voting for it (all of whom voted in the gubernatorial election), and 700 voting against it. If I understand you correctly, the state court says that the amendment is not adopted, but the federal court says that it is.

 

10 minutes ago, Daniel H. Honemann said:

I did take a quick look at the federal court's opinion, and it does appear to say that, according to Tennessee's Constitution, voting for governor is a precondition to voting for or against an amendment.

Yes, and the issue in this case involved (at least potentially) the opposite result of your hypothetical, because more people voted for the amendment than against it. The rule issued by the state court was the same as the rule published by the election authorities before the election. Based on that, there was a campaign among supporters of the amendment to "double your vote" on the amendment by abstaining from the gubernatorial election. As a result, apparently this was the first time in Tennessee that there were more votes cast on the question of amendment than on the accompanying election -- although the raw numbers don't really matter in any event, according to the federal ruling.

[Dan Honemann]

19 minutes ago, Shmuel Gerber said:

Yes, and the issue in this case involved (at least potentially) the opposite result of your hypothetical, because more people voted for the amendment than against it. The rule issued by the state court was the same as the rule published by the election authorities before the election. Based on that, there was a campaign among supporters of the amendment to "double your vote" on the amendment by abstaining from the gubernatorial election. As a result, apparently this was the first time in Tennessee that there were more votes cast on the question of amendment than on the accompanying election -- although the raw numbers don't really matter in any event, according to the federal ruling.

Well, I suppose this result is to be expected from an Obama appointee.

[Shmuel Gerber]

"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."

I'll add that I think the provision becomes almost perfectly clear (i.e., that the voters in the gubernatorial election are the ones that decide whether the amendment shall be approved) if you simply ignore the comma between "Governor" and "voting". This is the type of comma that is no longer used in current English, is obviously a remnant of the original wording of the Tennessee constitution in this case, and causes great confusion in interpreting language from older sources -- such as the Second Amendment to the U.S. Constitution (as explained in detail in a blog post by Professor Mark Liberman, "The Right to Keep and Bear Adjuncts").

[Shmuel Gerber]

2 hours ago, Godelfan said:

Well, I can see two ways to make this interpretation work, neither of them very good.  One is as suggested above by Dr. Stackpole.  The other would be to require those voting on the referendum to be willing, if it would determine the outcome, to reveal how they voted. 

Nobody has to reveal how they voted. The tellers simply look at the ballots and, when counting votes on the amendment, ignore all ballots on which no vote is cast for governor.

[Dan Honemann]

1 minute ago, Shmuel Gerber said:

Nobody has to reveal how they voted. The tellers simply look at the ballots and, when counting votes on the amendment, ignore all ballots on which no vote is cast for governor.

No wonder the state consistently interpreted its constitution in such a way so as to avoid this rather obvious denial of a citizen's right to vote.

[Joshua Katz]

1 hour ago, Shmuel Gerber said:

Nobody has to reveal how they voted. The tellers simply look at the ballots and, when counting votes on the amendment, ignore all ballots on which no vote is cast for governor.

So long as we accept that such votes must be done only when a Gubernatorial election is conducted.  (Disclaimer:  I haven't read the opinion.)  

 

55 minutes ago, Daniel H. Honemann said:

No wonder the state consistently interpreted its constitution in such a way so as to avoid this rather obvious denial of a citizen's right to vote.

Well, it's something of a wonder that Tennessee would interpret its constitution so as to avoid denial of a right to vote. 

[Shmuel Gerber]

1 hour ago, Daniel H. Honemann said:

No wonder the state consistently interpreted its constitution in such a way so as to avoid this rather obvious denial of a citizen's right to vote.

I guess that goes back to the old discussion about whether such a rule denies anyone's right to vote, or simply denies the right to abstain. Anyway, it seems that either scheme has problems in practice, in regard to the counting and/or dilution of votes on a different question in determining the result of the vote on the amendment. But putting aside what the intent of the provision was, I think it's a feat of verbal contortion to attach the state's scheme to the plain meaning of the language actually used. If the judge wanted to rule that the language doesn't mean what it says, he should have said so.

[Dan Honemann]

1 hour ago, Shmuel Gerber said:

I guess that goes back to the old discussion about whether such a rule denies anyone's right to vote, or simply denies the right to abstain. Anyway, it seems that either scheme has problems in practice, in regard to the counting and/or dilution of votes on a different question in determining the result of the vote on the amendment. But putting aside what the intent of the provision was, I think it's a feat of verbal contortion to attach the state's scheme to the plain meaning of the language actually used. If the judge wanted to rule that the language doesn't mean what it says, he should have said so.

There can be no doubt but that this provision in the state's constitution is dreadfully worded, and it is ambiguous, but the significant point is that a federal court has no right to force its interpretation on the state, particularly when the federal court's interpretation of this ambiguous language in Tennessee's constitution clearly disenfranchises far more voters than does Tennessee's interpretation of its own constitution.

In any event, that "old discussion" was interesting, and I was absolutely right there as well. The answer given in the NP Q&A referred to in that thread was flat-out wrong.

 

[Gary Novosielski]

6 hours ago, Daniel H. Honemann said:

Well how about saving me from having to read all this stuff.

Suppose only 500 people vote in the gubernatorial election, but 1,000 people vote on the amendment (including the 500 who voted in the gubernatorial election), 300 voting for it (all of whom voted in the gubernatorial election), and 700 voting against it. If I understand you correctly, the state court says that the amendment is not adopted, but the federal court says that it is.

Have I got this right? I find it hard to believe that I do.

I believe that you have it right.  I suspect that the linkage between the two elections, whether individually or in the aggregate, will eventually prove to be an irreparable defect.  It has the effect of allowing almost identical arguments and appeals to reason to be brought by both sides, each in support of  of their respective positions.  I think the plaintiffs sought to have the entire paragraph declared unconstitutional, but the federal judge declined to go that far.  One of the original proposals for the referendum language was a straight 2/3 vote, but that one, sadly, did not prevail.

[Gary Novosielski]

2 hours ago, Godelfan said:

So long as we accept that such votes must be done only when a Gubernatorial election is conducted.  (Disclaimer:  I haven't read the opinion

Yes, that is part of the requirement.  Referendums can only be placed on the ballot every four years, when the governorship is also on the ballot.