Ballot Access News is edited and published by Richard Winger, the nation's leading expert on ballot access legal issues.

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Sixth Circuit Agrees with U.S. District Court that Two Tennessee Ballot Access Laws are Unconstitutional

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.

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Virginia Republican Party Will Help Local Republican Party Lawsuit Against Law Letting Incumbents Decide How a Party Nominates

Virginia has a unique election law concerning partisan nominations. Virginia lets all qualified parties decide for themselves whether to nominate by primary or convention, yet if an incumbent is running for re-election, he or she can override the party’s decision. If the party wants a primary but the incumbent wants convention instead, the incumbent’s desires override the party’s wishes.

A local unit of the Virginia Republican Party filed a lawsuit against that law earlier this year, but lost the case in U.S. District Court. The party is appealing to the Fourth Circuit. Its brief is due July 8. On June 27, the statewide Virginia Republican Party voted to support the lawsuit by filing an amicus curiae brief on the side of its local group. The case is Adams v Alcorn, 15-1478.

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Procedural Victory in Missouri Constitution Party Ballot Access Case

On June 25, U.S. District Court Judge Ronnie L. White issued a procedural ruling in Constitution Party of Missouri v St. Louis County, Missouri, e.d., 4:15cv-207. The ruling denies the government’s motion to dismiss the case.

The lawsuit was filed earlier this year to challenge the county’s charter, which says, “Any vacancy in the County Council shall be filled at the next general election or special election called in accordance with statute. Nominations for election to fill a vacancy shall be made in accordance with statute by the committee men and women of each of the two parties casting the highest vote for governor in the last election whose townships lie in whole or in part within the council districts wherein the vacancy exists.” In other words, in special elections for County Council (which is elected on a partisan basis) the only candidates can be those nominated by the Democratic and Republican Parties.

The county tried to get the lawsuit dismissed on the grounds that the special election is over with and it is very unlikely that there will be another special election in which the Constitution Party wishes to run anyone. The judge said, “There is a reasonable probability that such an opportunity will present itself in the future.” The next stage of the lawsuit will be to decide if the county charter is unconstitutional.

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CNN Poll for Republican Presidential Race Has Three Candidates Tied for Tenth Place

On July 1, CNN released a poll for the race for the Republican presidential nomination, showing that three candidates are tied for tenth place at 3%. If polls continue in this vein, it will be very difficult for Fox, the sponsor of the August 6 Republican presidential debate, to decide who is in their chief debate (although Fox has already said it will have another debate for those not in the top ten but who are at 1%). See this story. Fox says the top ten candidates will be in the chief debate.

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U.S. Senator Lindsey Graham Says it is “Ridiculous” to Use Poll Results to Decide Who May Debate

On June 30, U.S. Senator Lindsey Graham (R-South Carolina) at a press conference said it is “ridiculous” for debate sponsors to use poll results to decide who may participate in debates. See this story. One wonders if he would express the same principle relative to general election debates.

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Proportional Representation Enters the “Fix California Challenge” Contest

A California non-profit 501(c)(3) organization called “Innovate Your State” has set up a “Fix California Challenge”, in which California voters are able to read about, comment upon, and vote for, ideas to improve California government. One of the proposals is to elect at least one house of the California legislature using proportional representation. Steve Chessin, president of Californians for Electoral Reform, wrote the proposal, which can be read here.

Californians who register with “Innovate Your State” can vote on this proposal, or any proposal. After one is signed up, large arrows appear above and below the vote tally. A vote is cast by clicking on one of the arrows. The proposal went up on July 1 and so far it has five “yes” votes.