The Associated Press reports that judges with the 6th U.S. Circuit Court of Appeals in Cincinnati expressed concern about a Tennessee court's ruling backing the method state officials used to count votes on the amendment, which passed with 53 percent of the vote.
But as they heard oral arguments from both sides Wednesday, the judges also questioned a recount ordered by a U.S. District judge. The recount is on hold pending the appeal.
In his April 2016 ruling, U.S. District Judge Kevin Sharp sided with eight voters who are pro-abortion rights and sued the state. Sharp called Tennessee's vote-counting on Amendment 1 unconstitutional and fundamentally unfair. He wrote that the state violated due process and equal-protection rights because people who voted for the amendment and didn't vote for governor effectively lowered the bar for the amendment's passage, a strategy advocated by anti-abortion campaigns. In Tennessee, a constitutional amendment must get votes from "a majority of all the citizens of the state voting for governor" in order to pass.
Attorneys for the state say they followed longstanding practice of counting amendment votes. A state court, which Tennessee officials argue is the court system that should interpret the state constitution, ruled in favor of the state's vote-counting method.
"Tennessee did exactly what it had done in prior elections, exactly what it told voters it was going to do and exactly what the constitution says," said Sarah Campbell, special assistant to Tennessee's attorney general.
Attorney Bill Harbison, representing the voters in the lawsuit, said there's little precedent to cite because the vote-counting method, which ties one election to another, is unique.
State elections officials say they first check to see if there's a majority vote for the amendment. Then, they verify that the "yes" votes amount to more than half of the total votes in the governor's race.
In the court-ordered recount, officials would only tally amendment votes from people who also voted for governor, which is the correct, plain language of the law, Sharp wrote.
Appellate judges had pointed questions Wednesday about the state lawsuit, which state officials filed after the federal lawsuit from the eight voters who wanted the amendment vote invalidated.
Judge Ronald Lee Gilman asked why the state didn't ask a state court to sort through the ballot-counting issue before the election, since concerns had already been brought to their attention then.
Gilman also said the state court ruling sounds like an advisory opinion, rather than a definitive ruling.
Conversely, Gilman questioned if the federal judge "went off the rails" by ordering a recount. The judges also were skeptical about a recount system that would require voters to cast ballots in one race for it to count in another. By ordering that, the district court "compelled voting," Gilman said.
The anti-abortion amendment in question says that nothing in the state constitution "secures or protects a right to abortion or requires the funding of an abortion" and empowers state lawmakers to "enact, amend, or repeal statutes regarding abortion."
It's unclear when circuit court judges will issue a decision. State officials said the recount that has been put on hold can be completed by hand.