Tennessee has filed this brief in the 6th circuit, in Green Party of Tennessee v Hargett, 12-5271. This is the ballot access case filed by the Green Party and the Constitution Party in July 2011. The parties won in U.S. District Court on February 3, 2012, and the state is appealing. The hearing in the 6th circuit will be July 25 at 9 a.m.

The state’s brief doesn’t seem to explain why the state is asking that the two parties be removed from the November 2012 ballot. One would have expected the brief to make specific points to bolster its argument that the two parties don’t enjoy a modicum of support. The U.S. District Court had not only held the Tennessee law unconstitutional, it had ordered the state to place the two parties on the November 2012 ballot.

When a ballot access law is held unconstitutional, judges sometimes then determine whether the plaintiff parties or candidates enjoy a modicum of support, and if they do, order the plaintiffs onto the ballot. The U.S. Supreme Court itself has placed, or retained, certain candidates and parties on the ballot six times: (1) the American Independent Party in Ohio in 1968; (2) the National Democratic Party of Alabama in certain Alabama counties in 1968; (3) the Socialist Workers and Socialist Labor Parties in New York in 1970; (4) Eugene McCarthy in Texas in 1976; (5) John B. Anderson in Ohio in 1980; (6) the Harold Washington Party in Cook County, Illinois, in 1990.

Another peculiarity of Tennessee’s brief is that it argues the deadline issue is moot, because recently the legislature moved the deadline for a party to submit its signatures from April to August. It is the state that is appealing, not the parties, so when the state says part of the case is moot, the state appears to be arguing against itself.