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Tennessee Ballot Access Law for New and Minor Parties Struck Down

Published on February 3, 2012, by in General.

On February 3, U.S. District Court Judge William J. Haynes invalidated Tennessee’s new ballot access law for minor parties. The case is Green Party of Tennessee and Constitution Party of Tennessee v Hargett, 3:11-00692. The decision is 90 pages. It strikes down the early April petition deadline, and also strikes down the 40,029 signature petition requirement. And, it says that it is unconstitutional to force minor parties to nominate by primary, at least in the context of an open primary state that doesn’t have party registration. It strikes down the 2011 law that reserves the best positions on the ballot for the two major parties.

The decision also puts the Constitution and Green Parties on the 2012 ballot, based on the evidence that in the recent past, both parties did collect several thousand signatures on petitions to get on the Tennessee ballot.

54 Responses

  1. Dominik

    Finally a good judge.

  2. […] Access News reports on what could be a significant ruling for minor parties. This entry was posted in ballot […]

  3. David

    Are the Libertarians on the ballot as well?

  4. Richard Winger

    #3, No, for two reasons: (1) they were not in this lawsuit; (2) they have never made a serious attempt to qualify as a party via petition in Tennessee. The decision put the Green and Constitution Parties because in the past they have launched petition drives in Tennessee, although they didn’t get enough signatures. This evidence of their past petitioning was in the record in this lawsuit.

  5. Andy

    How does this effect Americans Elect, who have been petitioning in Tennessee for several months?

  6. Demo Rep

    How soon before the TN robot party hack Empire strikes back — i.e. copying the ballot access laws of State X – upheld by SCOTUS in Year Z.

    Solve for X and Z.

  7. Jim Riley

    The judge determined that a typist could enter 20 names per minute, or 1200 per hour. Assuming the typist were paid $24/hour, that would be $0.02 per signature. Why don’t paid solicitors do the same? It would greatly reduce the typical 50% wastage.

  8. Jim Riley

    Given the ease of ballot access for individual candidates in Tennessee, it should adopt a Top 2 Open Primary, like in Washington State. All the current independent candidates could then state their party affiliation. Tennessee would eliminate the need for so many primary ballots, eliminate concerns about party raiding of partisan primaries, eliminates the need for disclosure of party affiliation by voters. Eliminate the need to prequalify parties. This would address the issues of the Kurita lawsuit as well.

  9. Jim Riley

    One problem with not using a primary in a state like Tennessee is that local nonpartisan races are included in the primary election. The decision stated that they don’t have to prepare nonpartisan machine ballots because, the election clerk can simply switch out the partisan races.

    But how many voters are going to show up on primary day when the big races are for governor, congress, or legislature, and say that they only want to vote for a few local offices? They are going to pick the contested races in their area. So either Greens and Constitution voters are going to show up and vote in Democratic or Republican primary, or they aren’t going to bother showing up for the local races.

    So what you could have instead is a system somewhat like Texas, but where minor party voters could affiliate at the primary, and then vote the nonpartisan ballot. The count of affiliating voters could then be used to qualify the nominees of the party, similar to the system used in Washington under the blanket primary.

    Perhaps the minor parties could supplement this with the list of their convention attendees. Since these would occur before the primary, they could be distributed to election officials. Convention participants could skip the primary if they chose, and the major parties could keep minor party voters out of their primaries.

  10. #5, the decision has no effect on Americans Elect, except that it says minor parties don’t need a primary if they would rather nominate by convention. Americans Elect will benefit from that part of the ruling. Americans Elect would be pleased if it didn’t need a government-administered primary in any state.

    For example, Nebraska law says parties that submit a petition on or before February 1 get a primary, but if the newly-qualifying party turns in its petition after February 1, but before August 1, it may nominate by convention. Americans Elect finished its Nebraska petition before February 1 but held it back because they want the convention method for themselves.

  11. Humongous Fungus

    The judge determined that a typist could enter 20 names per minute, or 1200 per hour. Assuming the typist were paid $24/hour, that would be $0.02 per signature. Why don’t paid solicitors do the same? It would greatly reduce the typical 50% wastage.

    First up we are petitioners, not solicitors. Lawyers, prostitutes and telemarketers are solicitors.

    Second, we are not typists. I for one am a terrible typist. My word per hour count is a small fraction of that of a professional typist, much as their rate of signatures per hour would be in most cases if they had to do my job.

    Third, my job is hard enough without making it harder. Spend a week on the road doing it if you have any doubts.

    Last, I don’t know where you get the idea that 50% invalid signatures are “typical.” Industry standard is a minimum 75% validity. Mine is usually in the 80-90% range and sometimes even higher.

  12. Humongous Fungus

    Given the ease of ballot access for individual candidates in Tennessee, it should adopt a Top 2 Open Primary, like in Washington State. All the current independent candidates could then state their party affiliation.

    It’s not an “open primary,” it’s a pernicious mechanism from eliminating non-establishment choices from the general election most voters actually pay attention to as well as dilute the meaning of alternative party names by allowing people who aren’t chosen by those parties and may not agree with them to run in crowded fields of candidates during the spring summer when most people haven’t even begun paying attention to the election.

    No state should adopt such a system and it should be deemed unconstitutional as well.

  13. Humongous Fungus

    @9 So what if they vote in D/Roid primaries? It’s not exactly a big problem.

  14. Demo Rep

    Let us hope that Mr. Winger is getting well paid for his time and effort in being an expert in the zillion ballot access cases — and trying to keep up with the zillion-zillion election laws and election law bureaucrats and election law court cases.

    How many months did the judge work on the opinion ??? — which includes lots of legal kitchen sink stuff — such that future courts will be citing the case regarding all sorts of points.

    —-
    Still waiting for the BASIC –

    Separate is NOT equal. Brown v. Bd of Ed 1954

    — applied directly in ballot access cases.

    Each election is NEW. — Stuff DOES happen between election days — causing NEW politics stuff.

  15. Jim Riley

    #11 Petitioners are the ones signing the petition. Solicitors are the ones trying to get ordinary decent folk to sign the petition.

    Solicitor 1. : one that solicits; especially : an agent that solicits (as contributions to charity)

    Actually, I meant the contractor who hired you would hire the typist who would enter the sheets containing signatures you had solicited. Since the judge has determined that this can be done quite inexpensively, it would actually be profitable for the contractor, who could charge based on actual validated signatures.

  16. Jim Riley

    #11 Don’t contractors typically gather 50% more signatures than needed?

  17. Jim Riley

    #12 Your economic well being depends on it being hard to petition.

    The last Tennessee gubernatorial election had 14 independent candidates on the ballot. Either they were able to gather the signatures themselves, or the number of signatures were in such relatively small numbers, that they could afford professional solicitors.

    The Green and Constitution parties simply wanted to have a candidate with their brand name on the ballot. So why not make it easy for any candidate to have their party name on the ballot.

  18. Jim Riley

    #13 If you are going to help choose the candidates of “your” party, you have no business interfering in the selection of candidates of other parties.

  19. Humongous Fungus

    Petitioners are the ones signing the petition.

    Nope. Those would be petition signers. Petitioners ask for signatures. Solicitors ask for money. Regardless of whether petitioners get money from someone other than petition signers or not that does not make us solicitors.

  20. Humongous Fungus

    #11 Don’t contractors typically gather 50% more signatures than needed?

    Some do, some don’t. I’ve had direct and indirect contracts, and in the vast majority of circumstances nowhere near that amount of overage was needed or done.

  21. Humongous Fungus

    Also, as a contractor and subcontractor, there is enough work to do without having to hire data entry people to type in every single signer’s name. In some cases no typing at all is required; in some cases a spot check of a sample of petitioners’ signatures does the job.

    Charging for valid signatures is impractical. Petitioners expect their money quickly, and in some cases the database for validity checks is not even available, while in others it would slow things down too much. Paying petitioners on valid signatures only is not the industry standard. Most contracts either pay for all signatures, or pay for all signatures above a minimal validity threshold such as 75%.

  22. Humongous Fungus

    Your economic well being depends on it being hard to petition.

    So what? There would be work on initiatives, recalls, voter registration drives, etc and so on even if states did not impose discriminatory ballot access laws against some candidates and/or parties.

    If I lose that part of my business, that’s fine, because my personal well-being is not my sole concern when it comes to politics.

    And, I don’t see how your proposed system would be good for professional petitioners, even if that was my sole concern. Again, it isn’t, and again there is no such thing as a petition solicitor.

  23. Humongous Fungus

    @18 Then those other parties should have private primaries or conventions that they pay for themselves, limited to their own members.

  24. […] to Ballot Access News, the Green Party and Constitution Party in Tennessee have won access to the Ballot in Tennessee via […]

  25. Jim Riley

    #1 “Congress shall make no law … abridging the right of the people … to petition the Government for a redress of grievances.”

    The people are the ones petitioning the Government. They are the petitioners.

    Agents who do not have a direct interest in the petition, but who encourage those who do to sign, and are being paid by the sponsor of the petition are solicitors.

  26. Jim Riley

    #21 IIUC, a political party or candidate hires a company, which then hires solicitors to actually gather the signatures.

    I assume that you don’t actually produce the petition blanks and provide the storage, etc. You gather the raw goods, and the company converts it into a service.

    If they pay you $X per signature, they have to charge the party or candidate $X+Y+P. Where Y is their other costs and P is their profit.

    The company would hire the typist(s), and if the judge is correct in his estimate, it could be done for pennies per signature. The quality of their service to their customer would improve, which would mean they could charge more. It might also mean that they could pay more to solicitors who produce higher quality signatures.

    The judge said that it would take 33 hours to input the 40,000 names required in Tennessee, and so the state didn’t really need the 119 days they claimed.

  27. Jim Riley

    #22 “Your economic well being depends on it being hard to petition.”

    “So what?”

    The toll collectors union has an incentive for toll roads to be maintained. They would couch it in different terms. They would argue that collection booths at every exit and entrance would mean motorists would pay for their precise mileage.

    Tennessee has already found that it works to let candidates run for governor with relatively few signatures (remember 14 independents in 2010). So why not simply let candidates include their party name?

  28. Jim Riley

    #23 The judge said the system use in Tennessee was unconstitutional. He suggested elements of the “too plain for argument” system used in Texas was a good one.

    Tennessee already makes it easy for candidates to qualify. They don’t have party registration, and the government runs the primaries, and they have nonpartisan races on the primary ballot. So it would be relatively easy to adapt to the Washington Top 2 Open Primary system. Candidates would qualify for the primary and use whatever party description they chose.

    Or if they wanted to switch to the Texas system: In Texas, large parties nominate by primary; smaller parties by convention. Texas does not have party registration, but restricts voters to participating in nominating activities of one party. The primaries and conventions are conducted by the parties, and do not include nonpartisan offices. Smaller parties do not prequalify before they nominate; nor post qualify after they nominate, but qualify based on participation in their nominating activities.

    It is unlikely that Tennessee would want to give up their government-run primary, nor split the nonpartisan primaries out. But they could let voters who supported other parties show up, indicate their support for the minor party, and vote in the nonpartisan races.

    Or if they preferred, they could show up at the convention and be counted there. Or they could do both.

  29. Humongous Fungus

    The people are the ones petitioning the Government. They are the petitioners.

    Nope. They are petition signers. The backers and circulators of the petition are petitioners. People signing the petition are just people willing to help a petitioner out and/or people who don’t mind if a given party, candidate or initiative is not excluded from the ballot.

    Agents who do not have a direct interest in the petition,

    I have an interest in voters having more choices.

    but who encourage those who do to sign, and are being paid by the sponsor of the petition are solicitors.

    Once again, no. Solicitors ask the public for money. Petitioners do not.

  30. Humongous Fungus

    I assume that you don’t actually produce the petition blanks and provide the storage, etc.

    Sometimes I do, sometimes I don’t. It all depends on the specific state laws and other circumstances.

  31. Humongous Fungus

    The company would hire the typist(s), and if the judge is correct in his estimate, it could be done for pennies per signature. The quality of their service to their customer would improve, which would mean they could charge more. It might also mean that they could pay more to solicitors (sic) who produce higher quality signatures.

    It doesn’t work well in practice because of the reasons I explained earlier. It appears that you either don’t have much (or any) experience with actual real life petition drives, or that you and are intentionally putting forth specious arguments that sound good on the surface to thwart the success of alternative parties and independent candidates in getting on the ballot.

  32. Humongous Fungus

    The judge said that it would take 33 hours to input the 40,000 names required in Tennessee, and so the state didn’t really need the 119 days they claimed.

    The state has a lot more resources than alternative political parties.

  33. Humongous Fungus

    The toll collectors union has an incentive for toll roads to be maintained. They would couch it in different terms. They would argue that collection booths at every exit and entrance would mean motorists would pay for their precise mileage.

    I’d prefer a system like Mississippi, Louisiana and Florida where you don’t even need signatures for a party to be recognized.

  34. Humongous Fungus

    Tennessee has already found that it works to let candidates run for governor with relatively few signatures (remember 14 independents in 2010). So why not simply let candidates include their party name?

    Parties would have no way to choose who their candidates are, or whether they reflect that party’s beliefs so the party labels could easily become meaningless, especially for non-established parties.

  35. Humongous Fungus

    Candidates would qualify for the primary and use whatever party description they chose.

    Rendering that party description meaningless, and getting lost in a crowded field well before most voters have started paying attention, never making it to the election most people actually notice.

  36. Humongous Fungus

    Or if they wanted to switch to the Texas system: In Texas, large parties nominate by primary; smaller parties by convention. Texas does not have party registration, but restricts voters to participating in nominating activities of one party. The primaries and conventions are conducted by the parties, and do not include nonpartisan offices. Smaller parties do not prequalify before they nominate; nor post qualify after they nominate, but qualify based on participation in their nominating activities.

    The threshold would have to be far below that of Texas for this to be anything other than a transparent ruse for excluding alternative parties from the election.

    If, say, the threshold was ten people meeting in a state convention, that might be OK.

  37. Jim Riley

    #29 See Washington statute RCW 29A.84.280 Paid petition solicitors — Finding.

    In California an initiative petition is addressed to Secretary of State, so that she will submit the ballot measure to the voters at the next election.

    Elections Code 9009:

    “To the Honorable Secretary of State of California
    We, the undersigned, … voters … hereby propose
    amendments to the Constitution … and petition the Secretary of State to submit the same to the voters of California for their adoption or rejection at the [next election] …”

    The voters who sign the petition form are proposing the amendment, and petitioning the Secretary of State to put the issue on the ballot. A petitioner is one who petitions.

    “Agents who do not have a direct interest in the petition”

    “I have an interest in voters having more choices.”

    That is an indirect interest. Those who want to close the nuclear power plant have a direct interest, those who want to double the size of the nuclear power plant have a direct interest. You just want them to have 2 choices other than the status quo.

  38. Jim Riley

    #33

    JR: “The judge said that it would take 33 hours to input the 40,000 names required in Tennessee, and so the state didn’t really need the 119 days they claimed.”

    HF: “The state has a lot more resources than alternative political parties.”

    The alternative political party has hired a company to collect the 40,000 signatures for them. Hiring a typist for 33 hours at $24/hour would cost the company $792.

  39. Jim Riley

    #33 Louisiana and Florida have party registration. Louisiana requires a party to have enough registrants before its name appears on the party ballot. Florida has just eliminated a lot of parties, because they didn’t even have 3 officers, and most Florida parties don’t run candidates. They even sue when a party member does.

  40. Humongous Fungus

    A petitioner is one who petitions.

    Yes, as in gathers signatures.

    A solicitor is someone who solicits money from the public.

    A petition signer is someone who signs petitions.

    Every petitioner aka circulator knows this.

  41. Humongous Fungus

    You just want them to have 2 choices other than the status quo.

    20 or 200 would be even better.

  42. Humongous Fungus

    The alternative political party has hired a company to collect the 40,000 signatures for them.

    Not necessarily. They may have hired a variety of individuals some of whom bring in a lot of signatures and some bring in very few, some getting paid and some volunteer, and some very harried and overworked volunteers may be running themselves ragged just trying to count the signatures, pay the petitioners and deliver the signatures to the state.

    That is actually more typically the way it works. Unless you are say Americans Elect and have a lot of money.

    Even when it works like you say, you are not taking into account that petitioners need their money quickly, faster than what you propose would take in many cases, and that in some cases the voter files may not even be available. Also, petitioners generally expect to be paid on all their signatures, especially of they don’t have crap validity. If you pay only on valid even for someone that has 80% or 90% validity they probably will not work with you because they like to plan on how much money they have made and proceed accordingly.

  43. Humongous Fungus

    Colorado, Vermont, etc.

    Lots of states where you can just pay a fee and/or file some paperwork saying you are organized and you’re good to go.

    Or how about extending the tennessee law for independent candidates to parties; 275 signatures statewide and you’re on. Better yet add a filing fee as an alternative option at the party’s choice.

  44. Humongous Fungus

    Louisiana requires a party to have enough registrants before its name appears on the party ballot. Florida has just eliminated a lot of parties, because they didn’t even have 3 officers,

    If the requirement is having 3 officers that is not a problem.

    If it is voter registrations it may bot be a problem so long as the number is no more than a few dozen statewide.

  45. Jim Riley

    #34 Why would a candidate run as the candidate of a 3rd party if he didn’t support the party, when he could choose a party that better reflected his beliefs.

    And how is the State going to know who the official party is, when they have no records of its membership?

    Tennessee requires 25 signatures. If a candidate manages to secure 25 signatures on a petition that says he is running as a Mugwump, how is Tennessee going to determine whether he or the persons who signed the petition are real Mugwumps or fake Mugwumps?

  46. Humongous Fungus

    Why would a candidate run as the candidate of a 3rd party if he didn’t support the party, when he could choose a party that better reflected his beliefs

    Happens all the time. There are nutjobs who run as Libertarians and Greens that don’t reflect the views of those parties, and whom those parties do not want representing them.

    And how is the State going to know who the official party is, when they have no records of its membership?

    Party officer(s) filed with the state.

    Tennessee requires 25 signatures. If a candidate manages to secure 25 signatures on a petition that says he is running as a Mugwump, how is Tennessee going to determine whether he or the persons who signed the petition are real Mugwumps or fake Mugwumps?

    Make it 25 signatures or $25 (party’s choice) to register a political party, which then puts whoever the state party officer filed with the state says is their candidates on the November ballot. Simple enough.

  47. Demo Rep

    Any blood oaths / lie detector tests / DNA testing regarding folks who are NOT *true* members of the XYZ party ???

    P.R. and nonpartisan App.V.

    ALL of the robot party hack stuff is STONE AGE JUNK — like having old time voodoo high priests in regimes advising the moron monarchs what to do.

  48. Jim Riley

    Rendering that party description meaningless, and getting lost in a crowded field well before most voters have started paying attention, never making it to the election most people actually notice.

    Why don’t some voters pay attention to the partisan primaries? Some don’t because the primary may be relatively meaningless for their party. Others might not show up because they don’t belong to a party.

    When the South was a one-party area, the Democratic primary often had 2 or 3 times the turnout of the general election. When California had the blanket primary, 3rd parties did better than they did in the general election. Maybe they better hope that the voters aren’t paying attention this June.

    The parties will be able to hire out-of-work petition solicitors to stand on street corners, with sandwich boards that say “Pay Attention!”

  49. Jim Riley

    #40 California says:

    That the undersigned voters petition the SOS to put their proposition on the ballot.

    Washington says that persons like you are “paid petition solicitor”.

    If I use a check to make a payment, I’m not the “signer”, I’m the payor (or payer). The party the check is written to is the payee.

  50. Jim Riley

    #42 If I were to offer you $2.50 per valid signature, or $1.50 per invalid signature, which offer would you take?

    How long would it take you to fax all the sheets you collect in a day?

  51. Jim Riley

    #43 Tennessee only requires 25 signatures for a candidate. The 275 is for a presidential elector slate of 11.

    If someone collects the 25 signatures to qualify to run for governor, and the petition says that they are a Mugwump why should they have to go through a separate process of registering the party?

    Your system just invites something akin to domain squatting. I could just register a bunch of party names. If you are going to actually recognize parties, they need to be more substantive than a $25 check, and a PO Box.

    If we are going to have a lot of candidates on the ballot in November, then we are going to have to have a runoff. So why have a separate primary for the big parties. Just let all their candidates run in November.

    But then you might not have people elected in time. So hold the first round earlier in the year, like Louisiana and Washington do.

  52. […] Ballot Access News reports that a US District Court decision has put the Green and Constitution parties on the Tennessee ballot. Both parties have in recent years collected thousands of signatures in that state, but failed to make the cutoff which was over 40,000 valid. The most recent Ballot Access News also reports that Americans Elect has finished petitioning in Tennessee. The Libertarian Party was not part of the lawsuit and has not made any real attempt (at least recently, if ever) to do the full party petition in Tennessee, so it is still not on the ballot there. However, Tennessee has one of the easiest requirements of any state to put an independent presidential ticket on the ballot with 275 signatures (previously 25), and the LP customarily qualifies that way. Tennesee is now one of two states (along with Wisconsin) where the Constitution Party is on the ballot but the Libertarians are not. Greens, but not Libertarians, are currently on the ballot in DC, Maine, Massachusetts, New York and West Virginia. Tennessee is now the only state where both the Green and Constitution Parties are on the ballot but the Libertarians are not. Tweet […]

  53. Mark

    I’ve got a question. I’m a Tennessee resident who is active duty military and I was trying to apply for an Absentee Ballot. Initially, I applied for the Green Party. However, the election office contacted me that I couldn’t do that. I could only apply for Democrat or Republican. Whats the deal? I thought this new law would allow me to apply for the Green Party? It seems that I’m only allowed to vote if I choose Republican or Democrat. When I received my absentee ballot in the mail, I was only offered the following choices for Presidential Preference Primary: Barack Obama or Uncommitted. The “Write-In Column” was marked in so I can even put a choice there. Can anyone help me out with this process?

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