Federal court agrees TN ballot law onerous for third parties

One of the highest courts in the land agreed with a Tennessee court's ruling that the state's law governing which political parties may have candidates on the ballot "imposes a greater burden" on third parties.

The U.S. Court of Appeals for the 6th Circuit, a court at a judicial level below only the U.S. Supreme Court, ruled Thursday that Tennessee's requirements for "minor" parties such as the Green Party or Constitution Party violate the equal protection clause of the 14th Amendment.

"Tennessee's ballot-retention statute clearly imposes a heavier burden on minor parties than major parties by giving minor parties less time to obtain the same level of electoral success as established parties," wrote Chief Judge R. Guy Cole Jr. in the court's decision.

The decision means Tennessee's requirements for minor parties to get their candidates on a ballot can't be enforced. The Green Party of Tennessee and Constitution Party of Tennessee brought the lawsuit challenging the constitutionality of the law in 2013; Green Party Co-Chair Kate Culver said the decision is a huge victory for minor parties in Tennessee and across the country.

"This is huge for the potential for third parties to have a voice in the political arena," Culver said Thursday morning.

"We know right now people are unhappy and disgruntled with the two major parties. ... There needs to be some way to get those voices heard."

The parties sued Secretary of State Tre Hargett. Through a spokesman, Hargett said his office is reviewing the court's decision to determine what action the state might take next.

The Court of Appeals agreed that the burden minor parties needed to meet was greater than that established for major parties, typically the Democratic and Republican parties. That burden boils down to how much time major and minor parties have to earn enough votes to remain on a ballot.

Tennessee law says a minor party must be recognized as a minor party to get a candidate on a ballot. That recognition requires a petition with signatures totaling at least 2.5 percent of the number of votes cast for governor in the last gubernatorial election; that'd be at least 33,844 signatures based on the 2014 gubernatorial election.

After meeting that petition requirement, though, one of the party's candidates for statewide office would have to receive at least 5 percent of the votes cast in the governor's election to remain on the ballot for the next election. If none of the party's candidates met that threshold, they'd have to go out and collect signatures again.

Major parties are allowed to meet that 5 percent mark at any point over the course of four years to remain on the ballot, according to Tennessee law.

"Only Tennessee's access-retention system forces minor political parties to attain the same vote percentage as major political parties in less time," states the court's opinion, with emphasis added to "same" and "less" by the court.

Although the law can't be enforced, it's unclear what the ruling means for future elections. The court can't tell the Tennessee General Assembly what to do, only what it can't do, noted Alan Woodruff, an attorney for the Green Party.

That means it's up to state lawmakers to change the law. While Culver said she hopes they'll listen to the advice of minor parties, history shows they have not. Members of the Green, Constitution and Libertarian parties met with lawmakers in 2014 to offer suggested changes, but lawmakers have yet to take action on any offered bills.

Instead, Woodruff argues, the state continues to fight any legal challenges to its ballot laws as opposed to endorsing changes to allow easier access for minor parties.

"It will fight the issue to the death. And the court seems to be saying, 'Come on, guys, fix your statutes instead of throwing up a new barrier every time I rule against you,' " Woodruff said, noting the Court of Appeals agreed with the lower court's decision to increase the amount of attorneys' fees it awarded Woodruff and the parties suing the state.

The state could appeal the ruling again, but that appeal would have to go to the Supreme Court. Woodruff said he doesn't think it's likely the state will appeal.

Reach Dave Boucher at 615-259-8892 and on Twitter @Dave_Boucher1.