Tomorrow, Monday, January 9, at 3:30 in the afternoon, I am going to be someplace I’ve never been before–inside the Federal Courtroom at the corner of Broadway and Eighth Avenue. I’ve been outside it, involved in demonstrations, several times, but this is the first time I’m going in. I’m not a witness or a defendant. I’m a plaintiff, on behalf of the Green Party of Tennessee. The State of Tennessee is the defendant, and it looks like we have them dead to rights, because we won virtually the same case once before. We’ve just been the victim of delaying tactics by the state. Delay, of course, is what governments and large corporations do when they’ve been caught in the wrong and don’t want to admit it.
Here’s the deal. Way back in 2008, we filed a lawsuit alleging that Tennessee’s ballot access law, which regulates how political parties can get their names listed on the ballot, discriminates against non-duopoly parties–ones that aren’t the Republicans or the Democrats. We knew we would win this case, because the same Federal Court in which we were suing Tennessee had just thrown out Ohio’s nearly identical, discriminatory ballot access law.
Both these laws shared the same flaws. The first flaw was that the deadline for a party to gather signatures and get on the ballot was in March, for the November election. The second was that the guidelines for what constituted a valid signature, or, for that matter, a valid petition, were pretty vague, and seemed to be largely left to the discretion of the Secretary of State, who, as a partisan political official, would have an interest in disqualifying any potential opposition. Another problem with the Tennessee law was that signers of the petition had to declare that they were members of the political party in question, which is a violation of personal privacy. A fourth stickler was that, while an “independent” candidate only needs 250 signatures to get his or her name on the ballot, a political party needs the signatures of a certain percentage of the total number of voters in the most recent election–a number which currently hovers around the 40,000 mark. Forty thousand valid signatures means eighty thousand gross signatures, a number that calls for paid professional assistance, at the rate of about two bucks per signature. So, under Tennessee’s guidelines, it would cost a minor party about a hundred and sixty thou to get its name on the ballot. Should the party fail to garner 5% of the vote in a statewide race, the process would need to be repeated. The Democrats and Republicans get their party affiliation listed on the ballot for free. A further complication is that the Tennessee law mandated that parties who came up with the required signatures then had to hold a primary election, at the same time, and in the same voting booth, as the Republicans and Democrats. Tennessee, in case you didn’t know, has an “open primary” system–you don’t register as a member of a certain party, and, come primary day, you can walk in and ask for whichever primary ballot you feel like voting on. Thus, by participating in this kind of free-for-all, a minor party could effectively lose control of its candidates–if a bunch of Republicans wanted to, they could vote for, say, a convicted sex offender as the Green Party’s Senate Candidate, and if enough Repubs crossed over and voted for the guy, the party would be stuck with the turkey for a candidate.
I’m not making that up, either. It actually happened in South Carolina in 2010, when an impoverished convicted sex offender mysteriously came up with the $10,000 filing fee and won the Democratic primary. South Carolina’s primary elections, like Tennessee’s, are open. What’s even more amazing is that, when the loser, a genuine politician (if that’s not too much of an oxymoron for you!) appealed to the state Democratic Party to redo the primary, the Dems declined to do so, and the vote wasn’t even close. Still more amazing, this sham candidate (whose name, peculiarly enough, was “Greene”), managed to poll 28% of the vote, while a far better-qualified Green Party candidate only received 9%. It’s enough to make you wonder how many people vote in their sleep.
As I so often do, I have digressed. As I said, we took the state to court, and the state, knowing it was caught red-handed, dragged its feet as long as it could. We had hoped to have relief from the court in time for the 2008 election, but it didn’t happen. Finally, in November of 2009, the case came up for a hearing, at which our plaintiff of record was first subjected to low-key torture by being denied drinking water for several hours, and then badgered on the witness stand by the state’s attorney. Then, once again, silence, until August of 2010, when the court, of course, ruled in our favor–but too late for us to get our party name on the 2010 ballot. Besides, through an unfortunate oversight, we hadn’t asked for “relief,” i.e., getting our party name listed with our candidates as an outcome of the court case.
But we had successfully overturned the state’s ballot access law, which meant that the legislature needed to pass a new one. So….what did the lawmakers who had revoked the Tennessee Voter Confidence Act do? Why, they repassed the old law, with as few changes as they could get away with. Fewer, actually. While they removed the privacy-violating qualification from the petition, they only moved the petition deadline back a month, which, according to legal precedent, is not sufficient, and they still insist that we nominate candidates in a primary election–which, as I pointed out earlier, effectively takes the process of candidate selection out of our hands, denying our right of free association. It would be a little different if we were a big enough party to have competition about who got to run for various offices, but at this point, unfortunately,there are more offices to run for than there are Green Party candidates by a long shot. In any case, the state’s denial of our right of free expression (putting our party name on the ballot along with our candidates’ names), and their denial of our right to chose our candidates in an appropriate manner are both clearly unconstitutional. The state’s demand for 40,000 signatures is not, according to legal precedent, considered burdensome, although it sure looks that way to me, but the fact that the state has delegated definition of the guidelines for accepting those signatures as valid to the Secretary of State is, by precedent, unconstitutional. That is why we are taking the state to court, and that is why we expect to win.
But that’s only half the battle. Let’s take a little music break, and then I’ll tell you about the other half.
music: Bob Marley, “Get Up, Stand Up”