On July 2, the Sixth Circuit agreed with a U.S. District Court that two Tennessee ballot access laws are unconstitutional. The Green Party and the Constitution Party had filed a lawsuit on October 10, 2013, against the law on how a party remains on the ballot, and also against the state’s loyalty oath for newly-qualifying political parties. Here is the decision in Green Party of Tennessee v Hargett, 14-5435. It is written by Judge R. Guy Cole, a Clinton appointee, and signed by Judges Deborah L. Cook and Helene N. White, Bush Jr. appointees.
The Tennessee vote test for a party to remain on the ballot is that it poll at least 5% for the office at the top of the ballot (president in presidential years, governor in gubernatorial years). The law is discriminatory, because a newly-qualifying party has to meet the vote test in its first year on the ballot. But an already-established party only has to meet the vote test every two elections.
The Sixth Circuit decision strikes down the vote test on Equal Protection grounds. Tennessee could easily repair this law if it said that newly-qualifying parties also don’t need to meet the vote test in their first election, but that they can meet the vote test in either of the party’s first two elections.
The Sixth Circuit also struck down the old Tennessee law that newly-qualifying parties must file a document saying they don’t advocate the violent overthrow of the government. The state had not tried to defend this law, except to argue that it isn’t enforced. However, the decision says the state “has not explicitly disavowed enforcing the oath in the future.” The U.S. Supreme Court had struck all loyalty oaths for parties in 1974, but some states continue to keep them on the books. These states include California, Illinois, Kansas, and Arizona.
The July 2 decision does not resolve the other Tennessee ballot access case, the law that requires a petition of 2.5% of the last gubernatorial vote for a party to get on the ballot. That case is still in U.S. District Court, and discovery is proceeding. Thanks to Rick Hasen for the link. UPDATE: here is a news story about the decision.