Green Party of Tenn. v. Hargett, Nos. 13–5975

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtCOLE
Citation767 F.3d 533
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.
Docket NumberNos. 13–5975,13–6280.
Decision Date22 August 2014

767 F.3d 533

GREEN PARTY OF TENNESSEE; Constitution Party of Tennessee, Plaintiffs–Appellees,
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.

Nos. 13–5975, 13–6280.

United States Court of Appeals,
Sixth Circuit.

Argued: Aug. 7, 2014.
Decided and Filed: Aug. 22, 2014.

[767 F.3d 538]

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: COLE, Chief Judge; COOK and WHITE, Circuit Judges.


COLE, Chief Judge.

The Green Party of Tennessee and the Constitution Party of Tennessee seek to appear on Tennessee's general election ballots as minor political parties. In February 2011, they filed suit under 42 U.S.C. § 1983 against Tennessee state officials to challenge laws that they claim have unconstitutionally impeded their access to the ballot. One year later, the district court granted summary judgment to the plaintiffs; the defendants then appealed, and this court reversed and remanded, in part because Tennessee had amended the statutes at issue. On remand, both parties

[767 F.3d 539]

filed cross-motions for summary judgment, and the district court again granted the plaintiffs' motion. Defendants again appeal.

This appeal presents four questions: (1) whether the plaintiffs have standing to challenge Tennessee's election laws, (2) whether the state's ballot-access scheme for minor political parties unconstitutionally burdens the plaintiffs' First Amendment rights, (3) whether the state's preferential ballot-ordering statute impermissibly discriminates against minor political parties in violation of the First and Fourteenth Amendments, and (4) whether the district court properly awarded attorney's fees to the plaintiffs. We conclude that the plaintiffs do have standing, but we reverse and remand the district court's order granting summary judgment to the plaintiffs on their ballot-access and ballot-ordering claims. We further conclude that the plaintiffs are a prevailing party entitled to attorney's fees, but we vacate the district court's fee award and remand for recalculation.


This case centers on two sets of Tennessee statutes, the first regarding when a political party's name may appear alongside its chosen candidates on the state's general-election ballot, and the second regarding the order in which parties' and candidates' names appear on the ballot. The plaintiffs, minor political parties active in Tennessee, allege that they consistently have been denied access to Tennessee's ballot due to the state's unduly strict requirements. To be clear, this case does not involve Tennessee's rules regarding when a particular candidate may appear on the ballot; it involves only the requirements a political party must meet. In fact, under Tennessee law, a candidate with no party affiliation can very easily qualify to appear on the ballot upon submitting a petition signed by as few as twenty-five registered, eligible voters. SeeTenn.Code Ann. § 2–5–101(b).

The full history of this litigation is addressed in a prior opinion from this court, as well as two district court opinions. See Green Party of Tenn. v. Hargett, 882 F.Supp.2d 959 (M.D.Tenn.2012) (Green Party I ), rev'd, 700 F.3d 816 (6th Cir.2012) (Green Party ), remanded to 953 F.Supp.2d 816 (M.D.Tenn.2013) ( Green Party II ). The facts relevant to this appeal are provided below.

A. Tennessee's Ballot–Access and Ballot–Ordering Provisions

Since the early 1960s, Tennessee has imposed certain requirements on organizations seeking to be recognized as political parties on the state's ballots. See Libertarian Party of Tenn. v. Goins, 793 F.Supp.2d 1064, 1069–70 (M.D.Tenn.2010) (summarizing history of ballot-access scheme). The plaintiffs argue that these requirements effectively bar them from appearing on Tennessee's general-election ballot, in violation of their First Amendment rights to expression and political association. In support, they note that the only minor political party since 1961 to have qualified for ballot access via petition was George Wallace's American Independent Party, which qualified in 1968 and 1972. See Green Party I, 882 F.Supp.2d at 969.

In 2011, when the plaintiffs filed their complaint in this case, political parties could qualify to appear on the ballot in one of two ways. First, if, in the past four years, at least one of a party's candidates running for state office had received a number of votes equal to or greater than 5% of the total votes cast in the previous gubernatorial election, that party would be designated a “statewide political party”

[767 F.3d 540]

and as such would automatically qualify for inclusion on the next general election ballot. SeeTenn.Code Ann. § 2–1–104(a)(31) (2011). Second, a party that did not meet this 5%-vote threshold could seek inclusion—as a so-called “recognized minor party”—by submitting a petition signed by a number of registered voters equal to or greater than 2.5% of the total vote cast in the previous gubernatorial election. See id. § 2–1–104(a)(24) (2011). This petition was due in April, 119 days before Tennessee's primary election held in early August. See id.§§ 2–13–107(a) (2011) (amended 2012, 2014), 2–5–101(a)(1) (2011). Furthermore, when this litigation began, participation in Tennessee's primary election was mandatory for certain offices. See id.§§ 2–13–202 (2011) (amended 2012), 2–13–203 (2011) (amended 2012). As addressed below, these requirements have since changed—which is in large measure why we now take a second pass at the plaintiffs' claims.

The plaintiffs also challenge a statute requiring that political parties appear on Tennessee's general-election ballots “in the following order: majority party, minority party, and recognized minor party, if any,” with the names of any independent candidates listed last. Id.§ 2–5–208(d)(1) (2011) (hereinafter the “ballot-ordering” provision). The plaintiffs argue that this provision, which has remained unchanged during this litigation, unconstitutionally discriminates against minor parties by conferring an advantage on the Republican and Democratic Parties.

B. The History of This Case1. Initial Proceedings in the District Court

The plaintiff political parties filed this lawsuit in July 2011, challenging the ballot-access and ballot-ordering provisions described above as well as an additional statute not relevant here. As the plaintiffs' attorney acknowledged at oral argument for the instant appeal, the complaint attacked Tennessee's election statutes on the basis that they were facially invalid. As discovery proceeded, both the plaintiffs and the defendants submitted reports from election-law experts regarding the effects of Tennessee's ballot-access scheme on minor parties; the defendants also filed affidavits from state election officials explaining why, in their view, the 119–day petition-filing deadline was necessary to prepare ballots for the state's August primary elections.

The plaintiffs moved for summary judgment, which the district court granted as to all of their claims. The court held unconstitutional Tennessee's 2.5% petition-signature requirement and 119–day filing deadline, both standing alone and in combination, and also invalidated Tennessee's ballot-ordering provision. Green Party I, 882 F.Supp.2d at 1008–09, 1013–14, 1016. In regard to the ballot-access scheme, the district court concluded that the parties' use of expert testimony and empirical data had “convert[ed] [the p]laintiffs' challenge into ... an ‘as applied’ challenge.” Id. at 1007. The court enjoined Tennessee from enforcing the offending statutes, ordered that the Green Party and Constitution Party be listed alongside the names of their respective candidates on the 2012 general-election ballot, and instructed the state to “conduct a public random drawing” to determine the order in which the parties would be listed on the ballot. Id. at 1019. The defendants appealed and sought a partial stay of the district court's order. This court granted their request for a stay only as to the random drawing for ballot order. See Green Party of Tenn. v. Hargett, 493 Fed.Appx. 686 (2012) (per curiam).

[767 F.3d 541]

After the defendants had filed their notice of appeal, the plaintiffs moved for attorney's fees, which the defendants opposed in part. Of the approximately $90,000 in fees that the plaintiffs requested, the court granted $65,181 after concluding that some hours had been “blockbilled” or not described with the necessary specificity.

2. Tennessee's Statutory Amendments

In the spring of 2012, while the defendants' appeal was pending, Tennessee amended its ballot-access statutes. The legislature eliminated the requirement that all parties' candidates for certain offices be selected by primary election and replaced it with a provision permitting minor parties to “nominate their candidates for any office by any method authorized under the rules of the party or by primary election.” 2012 Tenn. Pub. Acts Ch. 955, § 6 (amending Tenn.Code Ann. § 2–13–203(a)) (emphasis added). Under the new regime, if a party chooses to nominate by its own procedures, rather than by primary election, the party must then qualify to appear on the general election ballot by filing a petition meeting the 2.5% signature requirement at least 90 days before the general election. 2012 Tenn. Pub. Acts. Ch. 955, § 1 (amending Tenn.Code Ann. § 2–13–107(a)). On the other hand, if a party chooses to hold a primary election, the 2.5% signature requirement and original petition-filing deadline—119 days before the primary election, in early April—remain unchanged. Tenn.Code. Ann. §...

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