On November 30, the Sixth Circuit issued a 20-page opinion in Green Party of Tennessee v Hargett, 12-5271. The Sixth Circuit sent the case back to the U.S. District Court for further evidence-gathering on the issue of whether Tennessee can require the two largest parties to always appear first on the ballot. The U.S. District Court is also instructed to decide if the number of signatures required for newly-qualifying parties is constitutional or not.
When the case had first been filed, Tennessee had an April petition deadline and required newly-qualifying parties to submit the signatures of 2.5% of the last gubernatorial vote. The U.S. District Court had declared the law unconstitutional. Then, the legislature moved the petition deadline from April to August, but did not lower the number of signatures, so now the case will focus more closely on the number of signatures by itself.
The Sixth Circuit mentioned that the U.S. Supreme Court in 1971 upheld Georgia’s 5% (of the number of registered voters) petition for independent candidates and the nominees of unqualified parties. However, even though the Sixth Circuit did not say so, this does not require that the U.S. District Court uphold the 2.5% petition, which currently amounts to 40,042 valid signatures. There are two arguments the Green Party and the Constitution Party can make to the U.S. District Court about the number of signatures. One argument is that Jenness v Fortson did not concern presidential candidate ballot access, and in Anderson v Celebrezze, the U.S. Supreme Court said states have less interest in restrictive ballot access laws for president than they do for other office.
The other argument is that Tennessee can’t possibly have a legitimate state interest in requiring over 40,000 valid signatures for a new party, when the state only requires 25 signatures for an independent candidate for any office (except that presidential independents need 275 signatures).
On the issue of which parties appear first on the ballot, the Sixth Circuit notes that although the Tennessee law appears to mandate party column ballots, in practice at least one county uses an office-group ballot (actually, many Tennessee counties use an office-group ballot). This apparent anomoly in Tennessee law is confusing, and will require additional evidence before the matter of ballot order can be adjudicated.
The U.S. District Court had struck down a Tennessee law saying no party may include the word “independent” in its name, but the Sixth Circuit said the Constitution and Green Parties don’t have standing to challenge that law, because neither party has the word “independent” in its name.