Tennessee Takes a Third Option

November 1, 2013

by Christopher L. Rollins, Contributor

In the face of the recent government shutdown, neither of the established major political parties is maintaining a positive image with the average voter. Fortunately for some dissatisfied Tennessee voters, minority parties have slowly increased ballot access over the last few years.

On its face, the requirements for getting on the ballot for statewide or national office in the state seem to be rather simple, requiring only 25 signatures for any legislative position, or 275 signatures and a slate of electors for a presidential nomination. However, this is only half the picture. Since 1961, when the state instituted ballot access laws, a candidate must go through additional steps to represent a party, rather than merely himself as an individual.

A party which garnered 5% of the votes cast in the previous gubernatorial election is eligible to automatically be placed on the ballot, and is considered a major party (§ 2-1-104). This has not happened once since Tennessee began keeping electronic records in 1998. Alternatively, a party may collect signatures via petition to qualify as a recognized minor party. The General Assembly requires that this petition have a number of signatures equal to or greater than 2.5% of the votes cast in the preceding gubernatorial election, 90 days prior to the general election. Once the party is confirmed, it may use any method it deems most suitable for selecting its candidate.

In an interview with Richard Winger of Ballot Access News, Winger argued that Tennessee possesses some of the most restrictive ballot access laws in the nation. Only six states have a higher required ratio of petition signatures necessary to votes cast in the 2008 Presidential Election: Alabama, Idaho, North Carolina, North Dakota, Oklahoma, and South Dakota.

The disparity becomes even more obvious on further digging.

Most other states measure their percentage requirement off of any statewide or national race; since Tennessee only gauges performance from the governor’s race, it is not possible for a minor party to capture a smaller office and build statewide attention. Also according to Winger, Tennessee’s requirement to remain on the ballot from a previous year is more than double that of the median. On average, American states require that a party manage to capture 2% of the vote in a statewide office to remain on the ballot for the next election cycle. As mentioned previously, Tennessee requires 5% of the vote in a gubernatorial race.

The Tennessee General Assembly originally instituted stricter requirements to get on the ballot as a minor party in Tennessee. Prior to the last few years, the legislature required that the petition to be complete 120 days in advance of the primary election and that a primary election was the only way to select the party’s candidate, among other requirements. I spoke to Katey Culver, co-chair of the Green Party of Tennessee, to get her perspective on the situation. According to Ms. Culver, things began to change in 2007; that is the year when the Green, Constitution, and Libertarian Parties of Tennessee entered into a pact that would constitutionally challenge the restrictive ballot access in their state.

At both the district and the appellate level, the federal courts have consistently ruled in favor of the three minor parties, beginning with Libertarian Party of Tennessee v. Goins in 2010. The Tennessee legislature made some cursory changes to the law following the state’s defeat in Goins, but few substantial changes. As noted in the decision, one such change was to lower the petition deadline to 119 days in advance of a primary election, a substantially identical requirement.

However, says Culver, when the Green and Constitution Parties continued their challenges with Green Party of Tennessee v. Harget, the Tennessee General Assembly began to change its attitude. The district court ruled in favor of the plaintiffs at Summary Judgment, and the 2012 Presidential Election saw both the Green Party and the Constitution Party on the statewide ballot. According to both Culver and Winger the Libertarian Party was not a party to Harget for administrative reasons, and subsequently began a separate legal challenge on October 9th.

The facts surrounding the case continue to develop on appeal and remand, as the state legislature makes attempts to reconcile with the minor parties. According to Culver, the Green, Constitution and Libertarian Parties will begin formal collaboration with the Tennessee General Assembly on October 16, 2013. The General Assembly has formed a committee on Ballot Access for Minor Parties, headed by Senate Minority Leader Jim Kyle (D), who was not available for comment at time of writing. The goal is for the committee to craft a more inclusive set of ballot access laws, without becoming indiscriminate.

The minor parties are considering the days ahead with an open mind. When I asked Culver if she was optimistic about the results of the future committee, the Green Party Co-Chair stated that she had not received negative responses from any of the State Senators or Representatives which the party had corresponded with, and that many were positive. Even so, Culver stated that, “I am not optimistic, I am not pessimistic, I am just going to see what happens.”

Regardless of the debate over the merits of a two-party system versus a multi-party system, it is a good thing when people are able to effectively express discontent with both the incumbent party and the usual alternative. Hopefully, the General Assembly and the minor parties can reach an agreement which maximizes the democratic process.

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