On August 17, U.S. District Court Judge Waverly Crenshaw, an Obama appointee, upheld Tennessee’s requirement that new parties submit signatures equal to 2.5% of the last gubernatorial vote. Even though his opinion is 77 pages, it does not mention that no group has satisfied this requirement since 1968, when George Wallace’s American Party satisfied the requirement.

The opinion belittles the plaintiffs, the Green Party and the Constitution Party, as weak and poorly-organized. Of course, when a state has a hostile ballot access law that keeps parties off the ballot, that inevitably injures their effectiveness and their strength.

The opinion says that the Libertarian Party is attempting to qualify as a party and that it might succeed, even though the testimony from me was that the party was not attempting the party petition as of the time of the trial. Furthermore, the petition deadline for a new party petition was August 10, and neither the Libertarian Party nor any other party submitted such a petition.

The opinion upholds the law giving the two major parties the top spot on the ballot.

Tne opinion lists the standard boiler-plate state interests that states usually offer in ballot access cases, that the ballot must be protected against too many candidates. This rationale obviously does not apply in Tennessee, because independent candidates get on the ballot for any office with just 25 signatures and no filing fee (except the independent presidential petition is 275 signatures). All minor party candidates use the independent candidate procedure. So lowering the party petition requirement would not result in any additional candidates being listed on the ballot; it would just mean that they had an accurate label instead of an inaccurate label.

Plaintiffs had produced testimony about the experience of Americans Elect, which tried and failed to qualify as a party in Tennessee during 2011-2012. That petition failed because election officials invalidated approximately half of their signatures. It is true that Americans Elect could have continued to collect more signatures, but it did not do so because at that point, it had decided to abandon the party all over the nation. Nevertheless, the fact that petition validity is so low in Tennessee that half the signatures were found invalid is an important piece of evidence for the plaintiffs. But the decision does not directly mention American Elect’s low validity rate, except obliquely, by saying that the number of Americans Elect signatures that were valid happens to exceed the number required in 2016 (in 2012 the requirement was 40,042; but in 2016 it is 33,816; the number went down because the voter turnout in 2014 was lower than it had been in 2010).

The case is Green Party of Tennessee v Hargett, m.d. 3:11cv-692. The parties expect to appeal.