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Sixth Circuit Clarifies Remaining Issues in Tennessee Ballot Access Case

Published on December 1, 2012, by in General.

On November 30, the Sixth Circuit issued a 20-page opinion in Green Party of Tennessee v Hargett, 12-5271. The Sixth Circuit sent the case back to the U.S. District Court for further evidence-gathering on the issue of whether Tennessee can require the two largest parties to always appear first on the ballot. The U.S. District Court is also instructed to decide if the number of signatures required for newly-qualifying parties is constitutional or not.

When the case had first been filed, Tennessee had an April petition deadline and required newly-qualifying parties to submit the signatures of 2.5% of the last gubernatorial vote. The U.S. District Court had declared the law unconstitutional. Then, the legislature moved the petition deadline from April to August, but did not lower the number of signatures, so now the case will focus more closely on the number of signatures by itself.

The Sixth Circuit mentioned that the U.S. Supreme Court in 1971 upheld Georgia’s 5% (of the number of registered voters) petition for independent candidates and the nominees of unqualified parties. However, even though the Sixth Circuit did not say so, this does not require that the U.S. District Court uphold the 2.5% petition, which currently amounts to 40,042 valid signatures. There are two arguments the Green Party and the Constitution Party can make to the U.S. District Court about the number of signatures. One argument is that Jenness v Fortson did not concern presidential candidate ballot access, and in Anderson v Celebrezze, the U.S. Supreme Court said states have less interest in restrictive ballot access laws for president than they do for other office.

The other argument is that Tennessee can’t possibly have a legitimate state interest in requiring over 40,000 valid signatures for a new party, when the state only requires 25 signatures for an independent candidate for any office (except that presidential independents need 275 signatures).

On the issue of which parties appear first on the ballot, the Sixth Circuit notes that although the Tennessee law appears to mandate party column ballots, in practice at least one county uses an office-group ballot (actually, many Tennessee counties use an office-group ballot). This apparent anomoly in Tennessee law is confusing, and will require additional evidence before the matter of ballot order can be adjudicated.

The U.S. District Court had struck down a Tennessee law saying no party may include the word “independent” in its name, but the Sixth Circuit said the Constitution and Green Parties don’t have standing to challenge that law, because neither party has the word “independent” in its name.

22 Responses

  1. Jim Riley

    If Tennessee would adopt the Top 2 Open primary system all candidates, independents and partisans alike would only need 25 signatures.

    I’m sure that the people of Tennessee are quite capable of deciding who they wish to represent them without having the party bosses helping them out.

  2. Jed Siple

    Oh God no. Top 2 is a disaster. Parties should have the right to decide their candidates.

  3. Richard Winger

    The Democratic Party bosses in Tennessee are so weak, they couldn’t prevent the nomination of Mark Clayton for US Senate this year, just as the Democratic Party bosses in South Carolina in 2010 couldn’t stop the nomination of Alvin Greene for US Senate.

    Honestly, Jim, if you are going to keep posting, at least acknowledge the point that it is possible to lower the number of signatures for independent candidates and newly-qualifying parties without passing top-two. States that have lowered the number of signatures for either minor parties or independent candidates in the period 1968 thru today include Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, D.C., Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Missouri, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.

    I send you the paper issues of Ballot Access News, so if you look at it, you know that.

  4. Andy

    Wow, this case in Tennessee has been dragging on forever. How much longer until we see some reasonable ballot access reform there?

  5. Casual Bystander

    “Honestly, Jim, if you are going to keep posting…”

    IF??? Can one be banned at BAN?

  6. Jim Riley

    #3 I doubt that Mark Clayton would have got 704,708 votes in a Top 2 primary.

    Did California lower the number of signatures prior to 2010?

  7. #6, yes, in 1976, for independent candidates.

    #4, the Tennessee case has already resulted in the legislature moving the petition deadline from April to August.

  8. Demo Rep

    The appointed robot party Donkey/Elephant hacks on SCOTUS have been brain dead in ALL of their EVIL MORON ballot access opinions since 1968 – Williams v. Rhodes.

    They are too EVIL MORON and unable to detect that each election is NEW and has ZERO to do with any prior event in world history — except the number of actual voters in the prior election areas involved –

    for EQUAL ballot access requirements in the NEXT election.

    i.e. EQUAL nominating petitions for ALL candidates for the SAME office in the SAME area.

    Much too difficult for MORON SCOTUS folks and super MORON lawyers and amicus profs since 1968 — a mere 44 years ago — might as well be a TRILLION years ago for the SCOTUS MORONS.

    Thus the constitutional law crumbs opinions for some 3rd party and independent candidates since 1968 by SCOTUS –

    with the lower robot party hack Fed and State judges being more than a bit confused.

  9. Jim Riley

    #7 In 2011 it dropped from 175,000 or so to 65 for statewide candidates.

    Was the change in 1976 of similar magnitude?

  10. #6. As long as we’re using our imaginations, suppose that Clayton would’ve had to run as a “Republican’ in a top two primary to win. In which case, he would have been the second “Republican” in the November election, assuming some other “Republican” didn’t beat him to it.

    All else being equal, I don’t see why he wouldn’t've gotten 700,000 plus in a top-two primary. You can’t say either way. There is nothing to support any kind of supposition.

  11. Richard Winger

    #9, the 1976 change was of great magnitude. The law in effect between 1931 and 1976 was so bad, no statewide independent candidate had ever qualified. But as soon as the 1976 change went into effect, three independent presidential candidates qualified as well as an independent for US Sehate; also in 1978 another statewide independent qualified; and in 1980 two more independent statewide candidates qualified; and another qualified in 1988; and another in 1992.

  12. Jim Riley

    #10 There was a Democratic candidate for Congress in Texas who was calling for the impeachment of President Obama, and got 30% of the vote. Bunches of Democrats will vote for anything with the label “Democrat”. Republicans are in general more discerning.

    If South Carolina had a Top 2 Open Primary, Vic Rawl might have bothered to actually campaign. There was a newspaper in Rock Hill who actually interviewed Greene before the primary, and realized his limitations. If the media in Columbia, Charleston, or Greenville had done any sort of actual coverage, Greene would not have advanced under Top 2.

  13. Jim Riley

    #11 Under Top 2 and a competent Secretary of State, Omari Musa could have run as preferring his party.

    Ed Clark could have run as a Libertarian under Top 2.

    What states did John Anderson not qualify for in 1980 (BTW, why wasn’t Patrick Lucey, Anderson’s running mate in Texas).

  14. Demo Rep

    How many MORON State regimes permit ANY local MORON regime to play games with stuff on ballots ???

    i.e. how many MORON States do NOT have UNIFORM statewide election law stuff — for ballots especially ???

  15. #12 Greene was covered by the Columbia Free-Times in a featured article prior to the primary. The lack of news coverage by the daily papers in the major cities probably wouldn’t have been any different under a top-two primary. DeMint would have garnered the same coverage, as the incumbent, under either system and his challengers similarly neglected. Also, I don’t see how a top-two primary would have encouraged Rawl to campaign differently, given his limitations as a candidate and the weakness of the SC Democratic Party at all levels. Really, it’s just as easy to see Greene advancing through an open primary, all other things being equal.

  16. Jim Riley

    #15 Rawl might have picked up votes from voters who were voting in the Republican gubernatorial primary.

    Under a partisan primary you get articles like “Former judge, newcomer challenge for Senate” and no one really paying attention.

    Under Top 2 there would have been at least some coverage of it actually being a race. Maybe some TV station would have hosted a debate, which DeMint might have skipped but some of Rawls, Greene, Gaddy, and Clements might have shown up for.
    (Rawl would have finished 4th if no votes changed in the primary).

  17. #16, It’s possible that some primary votes for GOP governor could have gone to a nominal Democrat in the senatorial primary, but not likely. The four GOP primary candidates for Governor were four shades of highly conservative. DeMint is very popular with that crowd. The votes would have predictably gone to DeMint.

    I’d belive that under top-two you’d still get articles on challengers using boilerplate language: “Former judge” or “army veteran”. The media reports on viability: when one man is raising millions and the other has a few hundred thousand, The Post and Courier is not going to “create a race” whatever the primary system. The outcome is to a certain extent a foregone conclusion, and the media’s appreciation of incumbent strength makes it a self-fulfilling prophecy. Local media generally don’t even cover such a race, but they do passively report AP stories on the doings of the incumbent in office. I don’t see why the media would have necessarily paid any more attention to the challengers of a national player like DeMint under top-two than any other system. On that basis, the rare bird who wants to support Nikki Haley but vote against DeMint wouldn’t have any more information to go on.

    You seem to take it as a given that top-two will be more competitive than any alternative, but ignore the essential sameness of your favorite system when faced by a powerful incumbent, with loads of money, who has captured the political machine and attention of the state.

    The powers of incumbency are such that simply sticking an incumbent in a top-two system doesn’t fundamentally change where the donations go, what the media prints, and how people associate the office with a person. A reasonably competent incumbent like DeMint will always be able to play this advantage under a closed primary or top-two.

    Again, all things being equal, it’s hard to see how top-two would create a more competitive system than what we have now. But you seem to always respond to these political continuties and incumbency advantages as a “perversion of top-two” by officials bent on sabotaging that system.

  18. #16, It’s possible that some primary votes for GOP governor could have gone to a nominal Democrat in the senatorial primary, but not likely. The four GOP primary candidates for Governor were four shades of highly conservative. DeMint is very popular with that crowd. The votes would have predictably gone to DeMint.

    I’d belive that under top-two you’d still get articles on challengers using boilerplate language: “Former judge” or “army veteran”. The media reports on viability: when one man is raising millions and the other has a few hundred thousand, The Post and Courier is not going to “create a race” whatever the primary system. The outcome is to a certain extent a foregone conclusion, and the media’s appreciation of incumbent strength makes it a self-fulfilling prophecy. Local media generally don’t even cover such a race, but they do passively report AP stories on the doings of the incumbent in office. I don’t see why the media would have necessarily paid any more attention to the challengers of a national player like DeMint under top-two than any other system. On that basis, the rare bird who wants to support Nikki Haley but vote against DeMint wouldn’t have any more information to go on.

    You seem to take it as a given that top-two will be more competitive than any alternative, but ignore the essential sameness of your favorite system when faced by a powerful incumbent, with loads of money, who has captured the political machine and attention of the state.

    The powers of incumbency are such that simply sticking an incumbent in a top-two system doesn’t fundamentally change where the donations go, what the media prints, and how people associate the office with a person. A reasonably competent incumbent like DeMint will always be able to play this advantage under a closed primary or top-two.

    Again, all things being equal, it’s hard to see how top-two would create a more competitive system than what we have now. But you seem to always respond to these political continuties and incumbency advantages as a “perversion of top-two” by officials bent on sabotaging that system.

  19. Joseph McNiesh

    Richard,

    I called TN BofE in Nashville, and I asked for a list of registered independent voters. The lady said, “We don’t have a list.” I wondered how I could get 275 sigs. Another independent candidate could challenge them. I also wondered how only 95 million people could be registered in Feb 2012, when 131 million voted in 2008. Then I noticed only 29 states listed. Can I buy a list of reg. voters, but not by party ID? In NY, $50 per CD. $15 by AD book. NJ is cheap.

  20. ETJB

    1. The order that a political party’s slate of nominees appear on the ballot could (I imagine) easily be done in a random fashion.

    2. In some sense I can understand the idea that more petition signatures would be needed to register a party and entire slate of nominees, compared to just one Ind nominee, but the Ten number seems excessive.

  21. Jim Riley

    #17 DeMint would have won under any system. I don’t put a lot of importance in competitive races. That’s really by the news media and groups like the League of Women Voters. Hunger Games had competitive contests.

    What is important is that all the people choose who represents or governs them. If there is widespread agreement on that issue, it is fine for there to be a lopsided election.

    The turnout for the Republican primary was more than twice that of the Democratic primary, and yet Sheheen ran a competitive race in the general election.

    The Republicans had 4 statewide races that were competitive enough to go to a runoff. 4 of the 6 congressional races went to the runoff. There were 25 contested Republican primaries for the South Carolina House vs. 15 for the Democrats.

    2010 turnout for the Republicans was up 72% over 2006 for the Republicans, and 43% for the Democrats. The Republican gubernatorial primary was attracting voters – and it was not simply voters interested in expressing their Republican-ness. It even increased turnout for the Democratic primary. There appear to have been voters who heard that there was an “election” going on, went to polling place and voted in the Democratic primary, just like they always did – and were probably wondering why Nikki Haley wasn’t on the ballot.

    Not all the voters in the Republican primary favored DeMint. He had an opponent, and she got more votes than Vic Rawl. She appears to have campaigned even less actively than Alvin Greene.

    Vic Rawl likely thought that the only voters in the Democratic primary would be active members of the party, who attend party events and would know he was the chosen candidate. But there were likely voters who voted in every election because they remember when they could not vote in any election.

    In an open primary, Democrats would have been concerned that Sheheen was not going to make the general election, and would put some effort into GOTV. Rawl would have at least put some effort into campaigning against DeMint.

    Debra Bowen is either incompetent or is deliberately sabotaging the California Top 2. What other explanation is there?

  22. Richard Winger

    #19, Tennessee doesn’t have registration by party. The voter registration form doesn’t ask any question about the voter’s affiliation or independent status. So there aren’t any registered independents in that state.

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