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.

California election code section 13105(c) says, “If for a general election any candidate for President or Vice President has received the nomination of any additional party or parties, the name(s) shall be printed to the right of the candidate’s own party.” But section 13210(c) says, “In the case of candidates for President and Vice President, the words “Vote for one party” shall appear just below the heading “President and Vice President.”

The American Independent Party and the Republican Party are jointly nominating Donald Trump for President, so under the first-named law, Trump’s name will be listed once, with both party names after his name. But the second-named law then makes no sense, because the ballot will not give Trump voters the opportunity to vote for just one party for President.

The problem could be solved if 13210(c) were amended to say, “Vote for one.” The existing law is already discriminatory against independent presidential candidates, because it seems to suggest that there never are any independent presidential candidates on the ballot.

Better for America, which attempted to qualify as a party in New Mexico by the June 30 deadline, was told that its petition is 86 signatures short. The party has filed a lawsuit in state court, arguing that it really does have enough valid signatures. See this story. The Independent American Party won a similar lawsuit in New Mexico state court in 2012. The Secretary of State had determined that it didn’t have enough valid signatures for its U.S. Senate nominee, but the State Supreme Court reversed the Secretary of State and put the nominee on the ballot.

Better for America has not nominated anyone for president yet, but it is assumed that it will nominate Evan McMullin.