Green Party of Tenn. v. Hargett

Decision Date30 November 2012
Docket NumberNo. 12–5271.,12–5271.
PartiesGREEN PARTY OF TENNESSEE; Constitution Party of Tennessee, Plaintiffs–Appellees, v. Tre HARGETT, in his official capacity as Tennessee Secretary of State; Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee, Defendants–Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

Negative Treatment Reconsidered

West's T.C.A. §§ 2–1–104, 2–5–208(d)(1)ARGUED:Janet M. Kleinfelter, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants. Alan P. Woodruff, Gray, Tennessee, for Appellees. ON BRIEF:Janet M. Kleinfelter, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants. Alan P. Woodruff, Gray, Tennessee, for Appellees.

Before BOGGS, GILMAN, and DONALD, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

This case involves a facial challenge to several aspects of Tennessee's statutory scheme for providing ballot access to minor political parties in state and federal elections. Two minor political parties that seek such access—the Green Party of Tennessee and the Constitution Party of Tennessee—brought suit in federal district court in 2011, alleging that (1) the requirements to qualify for the Tennessee ballot as a “recognized minor party are overly restrictive and thus impermissibly burden their First Amendment rights; (2) the requirements to qualify as a “recognized minor party are unconstitutionally vague and constitute an improper delegation of legislative authority; (3) the provisions governing the order in which political parties are listed on the general-election ballotviolate the Fourteenth Amendment's Equal Protection Clause; and (4) the prohibition on the use of the words “independent” and “nonpartisan” in minor-party names contravenes the First Amendment's guarantee of free speech.

In February 2012, the district court granted summary judgment in favor of the plaintiffs on all claims. The court enjoined the state of Tennessee from enforcing the challenged provisions, ordered that the plaintiffs be placed on the November 2012 general-election ballot, and directed the State to conduct a random public drawing to determine the order in which each party would appear on the ballot. Tennessee appealed, and then moved for a partial stay of the district court's judgment. We granted a stay only with respect to the random-public-drawing requirement. In the meantime, the Tennessee General Assembly amended some, but not all, of the invalidated provisions. For the reasons set forth below, we now REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this Opinion.

I. BACKGROUND

Prior to 2011, Tennessee's election laws recognized just one category of political party on the State's ballot: the “statewide political party.” To qualify for such recognition, a party needed to either (1) have achieved significant statewide success in the most recent gubernatorial election (by having at least one of its candidates for statewide office receive 5% or more of the number of votes cast), or (2) have demonstrated meaningful statewide support through a different process (by submitting at least 120 days before the primary election a petition, “signed by registered voters as members of the party,” totaling 2.5% or more of the number of votes cast in the most recent gubernatorial election). This system was challenged in an earlier federal lawsuit by several minor political parties, including the plaintiffs in this action, and the district court struck down the ballot-access laws as applied to the challengers. See Libertarian Party of Tenn. v. Goins, 793 F.Supp.2d 1064 (M.D.Tenn.2010).

The Tennessee General Assembly responded to this adverse ruling by amending the State's ballot-access laws in 2011. It changed the definition of “statewide political party to cover only those parties that meet the 5%-of-the-vote threshold. SeeTenn.Code Ann. § 2–1–104(a)(31). And it created a second category of political party, called a “recognized minor party,” for those parties that do not meet the 5% threshold but satisfy the petition requirements, which were left essentially unchanged from the prior version of the statute. See id. § 2–1–104(a)(24). The complaint in this case focuses mainly on those requirements, as well as on a few other features of the 2011 amendments.

A. Relevant 2011 amendments

A “recognized minor party is defined by the 2011 amendments as

any group or association that has successfully petitioned by filing with the coordinator of elections a petition which shall conform to requirements established by the coordinator of elections, but which must at a minimum bear the signatures of registered voters equal to at least two and one-half percent (2.5%) of the total number of votes cast for gubernatorial candidates in the most recent election of governor, and on each page of the petition, state its purpose, state its name, and contain the names of registered voters from a single county[.]

Tenn.Code Ann. § 2–1–104(a)(24). This 2.5% signature requirement comes directly from the previously invalidated legislation, as does the deadline for when a party must submit its petition. That deadline, which is set forth in a separate provision, is 119 days before the date of the August primary election, see id.§§ 2–13–107(a) (2011) (amended 2012), 2–5–101(a)(1), a time period effectively indistinguishable from the prior 120–day filing deadline. Under these requirements, a minor party would have had to submit a petition containing at least 40,039 valid signatures by April 5, 2012 in order to qualify for Tennessee's November 2012 general-election ballot.

In addition to transplanting the petition requirements from statewide political parties to recognized minor parties, the 2011 amendments make clear that minor parties must nominate their candidates for governor, Tennessee General Assembly, United States senator, and United States representative by means of a primary election, to be held in early August of the election year. Id. § 2–13–202 (2011) (amended 2012). The candidates for these offices must also submit a nominating petition that “meets the statutory requirements to be declared a recognized minor party,” id.§ 2–13–107(c) (2011) (amended 2012), meaning that the petition must satisfy the same 2.5% signature provision and 119–day filing deadline described above. But the candidates for all other offices (including presidential candidates) may be nominated by any method authorized under each particular party's own internal rules. Id. § 2–13–203(a)(1).

Along with these ballot-access laws, the plaintiffs challenge two other statutory provisions created by the 2011 amendments. The first prescribes the order in which each party is to be listed on the general-election ballot (hereinafter referred to as the party-order provision”). This provision reads: [O]n general election ballots, the name of each political party having nominees on the ballot shall be listed in the following order: majority party, minority party, and recognized minor party, if any.” Id.§ 2–5–208(d)(1). “Majority party and “minority party,” in turn, refer to the parties whose members hold the largest and second largest number of seats in the combined houses of the Tennessee General Assembly. Id. § 2–1–104(a)(11), (12).

The final challenged provision imposes a restriction on the words that a recognized minor party may use in its name on the ballot. This provision mandates that the name “shall not include the word ‘independent’ or ‘nonpartisan,’ and that [t]he coordinator of elections shall redact any portion of a minor party name that violates this section.” Id.§ 2–13–107(d). The 2011 legislation went into effect in May of that year.

B. Procedural history

In July 2011, the present lawsuit was filed. The complaint attacked several of the new provisions on their face. In particular, the plaintiffs alleged that (1) the requirements to qualify as a “recognized minor party in Tennessee are overly restrictive and thus effectively deny them access to the ballot; (2) the requirements to qualify as a “recognized minor party are unconstitutionally vague and constitute an improper delegation of legislative authority; (3) the party-order provision violates the Equal Protection Clause; and (4) the prohibition on the use of the words “independent” and “nonpartisan” in minor-party names is barred by the First Amendment.

In granting summary judgment for the plaintiffs, the district court held in February 2012 that all the challenged provisions were unconstitutional on their face, with the exception of the 2.5% signature requirement, which the court acknowledged is a facially “reasonable state regulation.” Green Party of Tenn. v. Hargett, 882 F.Supp.2d 959, 1006, 2012 WL 379774, at *42 (M.D.Tenn. Feb. 3, 2012). But the court determined that empirical evidence submitted by the plaintiffs' expert, which discussed the costs and difficulties inherent in collecting signatures as a general matter, essentially “convert [ed] [the] challenge into ... an ‘as applied’ challenge.” Id. at 1007, 2012 WL 379774 at *43. Having reached this conclusion, the court then held that the signature requirement, as applied to the plaintiffs, substantially burdened their First Amendment rights and could not be justified by a compelling state interest. The court further concluded that the form of the nominating petition for minor parties unconstitutionally compelled the disclosure of the signatory's party membership.

To remedy these violations, the court “deem[ed that] any deadline in excess of sixty (60) days prior to the August primary for the filing of petitions for recognition as a political party is unenforceable”; enjoined “enforcement of the state statutes requiring Plaintiffs to select their nominees by primary, awarding ballot preference to the majority party[,] and [prohibiting]...

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