Federal Court: Tennessee Ballot Access Law Unfairly Burdens Third Parties

On Thursday, a federal appeals court ruled that a Tennessee statute requiring that a minor party, in order to stay on the ballot, must achieve 5% of the vote in the same gubernatorial election in which it obtained ballot access by collecting thousands of signatures violates the 14th Amendment's equal protection clause by placing an unfair burden on independent political parties.

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Barry Donegan
Barry Donegan is a writer, musician, and pro-liberty political activist living in Nashville, TN. Donegan served as Director-at-Large of the Davidson County Republican Party from 2009-2011 and was the Middle Tennessee Regional Coordinator over 30 counties for Ron Paul's 2012 Presidential Campaign. Follow him at facebook.com/barry.donegan and twitter.com/barrydonegan

A July 2 decision by the US Court of Appeals for the 6th Circuit in a suit brought by Tennessee’s Green and Constitution parties has rendered a controversial ballot retention statute in the state unenforceable. According to The Tennessean, Chief Judge R. Guy Cole Jr. said in the decision, “Tennessee’s ballot-retention statute clearly imposes a heavier burden on minor parties than major parties by giving minor parties less time to obtain the same level of electoral success as established parties.

Under the law, Tennessee’s third parties are required to collect a number of signatures exceeding 2.5% of the number of Tennesseans who voted in the last gubernatorial election in order to gain ballot access and were also required to achieve at least 5% of the vote in a statewide race in the subsequent gubernatorial election in order to remain on the ballot. The combined burden of having to meet the high number of petition signatures while also being required to achieve the 5% electoral total within the same election cycle had the effect of forcing third parties to continue to repeatedly attempt to collect signatures to obtain and maintain ballot access while the Democratic and Republican parties remained on the ballot automatically. Major parties only have to meet that 5% threshold at some point during the previous four years in order to remain on the ballot, giving them more time to achieve the same electoral feat.

Green Party of Tennessee co-chair Kate Culver told The Tennessean, “This is huge for the potential for third parties to have a voice in the political arena. We know right now people are unhappy and disgruntled with the two major parties… There needs to be some way to get those voices heard.

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Ballot Access News’ Richard Winger wrote, “The Sixth Circuit decision strikes down the vote test on Equal Protection grounds. Tennessee could easily repair this law if it said that newly-qualifying parties also don’t need to meet the vote test in their first election, but that they can meet the vote test in either of the party’s first two elections.

Though the federal appeals court’s decision does render the statute unenforceable, the court has no authority to dictate what the new process will be. Only the Tennessee General Assembly can implement a new ballot retention system. The state could also appeal the decision to the Supreme Court, but is not expected to do so.

A spokesperson for the lawsuit’s defendant, Tennessee Secretary of State Tre Hargett, said that the state is reviewing the court’s decision to determine what action it should take in response.

Richard Winger of Ballot Access news noted, “The Sixth Circuit also struck down the old Tennessee law that newly-qualifying parties must file a document saying they don’t advocate the violent overthrow of the government. The state had not tried to defend this law, except to argue that it isn’t enforced. However, the decision says the state ‘has not explicitly disavowed enforcing the oath in the future.’ The U.S. Supreme Court had struck all loyalty oaths for parties in 1974, but some states continue to keep them on the books. These states include California, Illinois, Kansas, and Arizona.

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