OUR DAY IN COURT

11 02 2012

Monday, January 9th, the Green Party of Tennessee went up against the State of Tennessee in Federal court.  I have had a lot of negative things to say about the cost of our court system and the radical conservative activist judges who increasingly populate it, but, fortunately, we did not find ourselves in the presence of one of those judges, and in our particular case, the price of justice was no problem–because we won our case, and the State of Tennessee was therefore liable for all expenses, including our attorney’s fees.  (And yes, I realize that, as a taxpayer here, I am one of those whose money is going to the state’s ill-conceived effort to fight our court case.)  Anyway, here’s what happened.

The hearing was scheduled for three in the afternoon, possibly in deference to the fact that our lawyer, Alan Woodruff, was coming in from the far eastern part of the state, but, late riser that I am, I was glad for the civilized hour of the hearing.  Also traveling in to attend and glad for the late start was  Richard Winger, editor of the Ballot Access News, who arrived on a red-eye flight from San Francisco and was quite happy to take a couple-hour nap at our house before attending.

I had put out the word to the local GP about the gathering, passing along Alan’s warning that we needed to be fly-on-the-wall spectators and not a three-ring circus, and several members who, like me, don’t work the straight 5-8 were able to attend.  Alan strongly suggested suit-and-tie as attire, but I have owned neither since about 1969, so I wore black pants and a dark sweater, clothes I wouldn’t garden or chop wood in.  We met at a local coffee shop before moving on to the downtown Federal Courthouse, where we had to undergo a security inspection/metal detector walk-through in order to proceed.   (One of our attendees had to declare her underwire bra to pass, but at least they didn’t make her remove it!)  With directions from the courthouse staff, we threaded the labyrinth of the massive building and found our way to the 8th floor, where we sat outside the courtroom and talked quietly until they were ready to let us in.

When our time came, we entered a room nearly the size and height of a basketball court, with ceiling lights that resembled a skylight–though, since they didn’t fade as five o’clock drew near, we knew we were under artificial light.   The thick carpeting, tables for plaintiff and defendant, judge’s dais, and seating sufficient for about a hundred people made it unlikely that a game of basketball will ever be played in that room–but, come the revolution, who knows?  The effect created a feeling of distance, not intimacy.  It was difficult to hear the judge or the lawyers when they spoke off microphone, which they occasionally did, before being asked by whoever the speech was addressed to (judge or lawyer) to please make use of the amplification.  The only spectators in the sea of seats were the four of us from the Green Party, Richard Winger, and a youngish guy who turned out to be a reporter from the Tennessean.

Judge Haynes entered the courtroom, we all did the ceremonial rise, the judge sat, then we all sat down, and the hearing was under way.  Alan Woodruff has bad legs and walks with the help of a cane, so Judge Haynes allowed him to present his case seated at the plaintiff’s table, directly in front of us.  Alan had warned us that the hearing would probably be pretty boring, and, as he presented the facts I was so familiar with, I did indeed struggle not to nod off.  The room was warm, the lighting just slightly dim, and even with amplification, the speakers’ voices were not all that loud…what can I say?  Alan’s’s running for Congress as a Democrat in the 1st District–I trust his stump speeches are more exciting.   They’ll have to be pretty motivating for him to win–the Republicans have taken the 1st district in every election since 1879.

I definitely woke up when I heard him point out that, while Tennessee’s requirement that 2.5% of those voting in the last election need to sign a petition to get a minor party candidate’s party affiliation on the ballot has been established as a legal precedent, there is no proof that it is, in fact, fair, and that, considering the cost of gathering 60-80,000 signatures, it could reasonably be considered unfair.  This had not been, to my understanding, part of the original brief, and I was glad to see it included.  It costs a lot of money to gather tens of thousands of signatures for a petition–anywhere between one and five dollars per valid signature, according to Ballotpedia, which would make the cost for getting a “minor party’s” name on the Tennessee ballot somewhere between $40,000 and $200,000.  That’s not minor.  That’s a chunk out of anybody’s campaign budget.  Bit of a barrier, dontcha think, especially since it’s an expense neither the Repubs nor the Dems have to cover?

Back to our story–Judge Haynes let Alan speak his piece, and then it was time for the Assistant Attorney General, Janet Kleinfelter, to argue the state’s case.

Janet is the attorney who, in the hearings on our original case, had unmercifully badgered the Green Party’s witness with exactingly detailed but ultimately irrelevant questions about the minutiae of how we run the Green Party of Tennessee.  This time, it quickly became her turn in the hot seat, as Judge Haynes repeatedly interrupted her, pointing out that she was raising arguments that had not been raised in the state’s earlier case as well as that she was repeating arguments that had already been struck down by Haynes’ previous ruling,  and that some of her assertions were hard for him to believe.  “You mean you still haven’t yet fully complied with the Americans With Disabilities Act?  That’s twenty years old!” he thundered.  When a judge tells an attorney, “Why did I bother reading your brief?  You’re wasting my time,” that generally means the attorney’s case is in deep, deep, trouble, and that’s exactly what Judge Haynes said to Ms. Kleinfelter.

In referencing the ADA, she was attempting to argue that the state needed more time to comply with Judge Haynes’ earlier ruling.  She also asserted that there was little interest in minor parties so there was no need for the state to accommodate them, and that having too many party names on the ballot–i.e., more than two–would just confuse voters.  Hey, there’s still countries in the world where the government asserts that having more than one party’s name on the ballot will unduly confuse the voters…or having a ballot at all.  Is that where her argument was headed?  As it became increasingly apparent that Judge Haynes wasn’t buying any of it, Ms. Kleinfelter grew increasingly flustered, raising her voice in a most unprofessional manner and, in my opinion, giving off a vibe that she might just start crying.  This does not bode well for her professional future–as Assistant AG, she’s going to be back in Judge Haynes’ courtroom, and getting acrimonious with him is not, as they say, a good precedent.  Considering the lameness of her performance, I was astonished to learn that she has been in the AG’s office for 20 years.  Meanwhile, Election Commissioner Mark Goins sat at the defense table, cradling his head in one hand and looking miserable.

What she was advancing was, basically, the same kind of BS arguments the state’s Republicans have been putting forth in the legislature–only here, they weren’t in the majority, and the judge had the power and ability to point out that they were full of, to be polite, baloney.  We walked out of the courtroom at about 5PM feeling pretty optimistic, although Alan warned us that even though the judge had essentially ripped the state’s argument into little bitty pieces and thrown it in the wastebasket, that didn’t mean he was going to rule in our favor.  After all, he could have ruled from the bench–made a decision on the spot–and he didn’t.  It ain’t over ’till it’s over.

Last week it was over.  We won on all counts.  Judge Haynes’ decision came to 90 pages.I have not yet had time to read it all, but here’s the summary: he threw out the state’s ballot access law and gave us (and the Constitution Party) the “relief,” as it is legally termed, of having our candidates’ party affiliation listed with their names on the 2012 ballot, saying “given the state’s acceptance of 25 signatures for candidates for governor and 275 signatures for candidates for President of the United States, the Court deems (Green Party of Tennessee’s)past electoral support of almost 20,000 votes and (Constitution Party of Tennessee’s) almost 10,000 signatories to constitute a signifcant showing of support to justify their recognition as political parties and to have their parties’ names next to their candidates on the general election ballot.  “Independent” no more! YEAH!

music:  Allen Toussaint, “Yes We Can Can”

Judge Haynes found that the 2.5% requirement was “an undue and impermissible burden.…The state infringes on the rights of supporters of Independent candidates to meaningfully vote and meaningfully associate by providing a  “voting cue” to Democratic and Republican candidates which makes it virtually impossible for Independent candidates to prevail in the general election“….(he put that in bold type, not me!)…..

Judge Haynes agreed that forcing minor parties to hold primaries effectively violates our freedom of association and ability to control our party, since in Tennessee’s open primary system, anybody can vote in any party’s primary simply by asking for that party’s ballot.  If–and only if–challenged by election officials, the only “proof” of party affiliation necessary is signing an affidavit asserting one’s party membership.  That’s probably how South Carolina Republicans nominated a sex offender as the Democrat’s Senatorial candidate in 2010.

Judge Haynes ruled that forbidding “minor parties” from using the words “Independent” and “Nonpartisan” (and the words “Democrat” and “Republican,” as well) in their names was an abridgement of free speech.  (The law banning those words was passed after George Wallace’s “American Independent Party” became the only “minor party” that ever succeeded in jumping through all the hoops of Tennessee’s ballot access process.)  OK, if anybody out there has been yearning to launch a branch of the worldwide “Social Democratic Party” or a Tennessee affiliate of Texas’s Conservative Republican Party, you are now free to do so.

Haynes ruled that forcing minor party candidates to file ballot petitions 119 days before the August primary was “an “undue burden,” and that leaving the details of the petition up to the Commissioner of Elections was “Unconstitutionally vague.”  “Any deadline for filing petitions for recognition as a minor party of more than 60 days before the August primary is unenforceable.”

He ruled that “order of placement of political parties candidates’ names on the ballot shall be determined by a “public random drawing.”

“Defendants must revise the ‘Nomination Petition’ to delete the reference that the signatory is a member of the party.  Included in a citizen’s First Amendment right to vote is the voter’s right to privacy of political affiliation, particularly for ties to a minor political party…..The Constitution protects against the compelled disclosure of political association and belief.  Such disclosures can seriously infringe on privacy of disclosure and belief guaranteed by the First Amendment.”  (again, that’s the Judge’s bold print.)

To sum it up, we won on all counts.  We freakin’ shut them out.  Damn, that feels good!

Could the state appeal this decision?  Given the irrational nature of so-called “conservative politics” here in Tennessee, and the state’s record of stonewalling in this long-running case,  it’s quite possible, although Alan, our lawyer, opined that Judge Haynes’ decision left little grounds for appeal.

What needs to happen next is that the legislature needs to enact a ballot access bill that will pass constitutional muster, unlike the bill they passed in response to our earlier court victory–the bill Judge Haynes just ruled on.  As it happens, such a bill was actually introduced last year, and it’s a real “truth in strange places” moment–Sen. Stacey Campfield, who is notorious in some quarters for his idiosyncrasies, came up with S.B. 617, which required minor parties to gather 2,500 signatures to get their party name on the ballot, and allowed minor parties to nominate by convention rather than by primary.  S.B. 617 was passed over in favor of more restrictive–Unconstitutionally  over-restrictive–legislation.   I would like to think that the fact that the right thing was proposed by a Tennessee Republican, and not by a member of the Socialist Party of Tennessee–excuse me, I mean the Democrats–bodes well for its re-introduction and passage.  It’s too late to submit new bills for the 2012 legislative session, but that gives us plenty of time to start lobbying our state legislators for statutory as well as judicial relief in this matter.  I’ve already started the conversation with my guy, Gary Moore.  Look in the “comments” section of the blog for the letter I wrote him, and feel free to adapt it for your own situation.

Accompanying this, to avoid the “spoiler effect” that multiple parties can have on elections, I also proposed to Rep. Moore that the state institute Instant Runoff Voting in any election that has more than two candidates competing for a single office.  Under Instant Runoff Voting, voters indicate their second choice as well as their first.  If no candidate receives more than half the votes, the second choices of those who voted for the lowest-ranking candidate are factored in, and so on, until somebody ends up with a clear majority.  This is being done in several municipalities in the U.S., and at national levels in India, Ireland, and Australia, so we know it’s practical.  This is not just for the benefit of the Greens, Constitutional Party, and Libertarians (who were not in on this suit but should certainly be affected by it),  this is a way for the Democrats and Republicans to protect their own asses.  I hope they see it that way.

And then, there’s the issue of how our votes are counted–an extremely iffy question on the easily hackable, unverifiable, unrecountable computerized machines that Republican and Democrat election commissioners alike have insisted on using in Tennessee.  Just why did the Republicans ask for a two-year delay in implementation of the Tennessee Voter Confidence Act, and then start working to repeal it as soon as those machines gave the Republicans their first majority in the state since Reconstruction?  (That’s the late 1860’s—a hundred and fifty years ago).  I will be presenting an in-depth review of the multiple scandals of computerized voting soon, probably next month.   Meanwhile, Bernie Ellis and friends are reviving Gathering to Save Our Democracy, the transpartisan group that almost got Tennessee to adopt verifiable voting in 2008.  In order to ensure that we are not used by hackers as a dumping spot for just enough votes to defeat Democrats, we Greens need to do everything we can to guarantee ballot integrity and accurate vote counts in Tennessee elections.

So, with this victory under our belts, we, The Green Party of Tennessee, will be gathering for our annual meeting in Knoxville on Saturday, March 24th, at Barley‘s Taproom and Pizzeria.   The buffet will open around noon; there’s no charge for the meeting, but the buffet is reasonably priced., and you don’t have to buy a buffet ticket to attend the meeting.  We will be approving candidates to run for local, Tennessee, and federal offices, so if you’d like to run for office with “Green” as your party affiliation, you will want to be there, even if you don’t like pizza.  (I like pizza, but have little use for a taproom.  I’m already about as uninhibited, uncoordinated, unintelligent, and socially inept as most of my friends can handle when I’m dead sober.)

But, I digress.  Please do come to Knoxville on March 24th–and let us know you’re coming–we don’t want to unexpectedly mob Barley’s,  not to be confused with a surprise appearance by Bob Marley–which, short of a miracle, will not take place.  Nothin’s gonna bring him back….but I digress again.   Don’t want to start any wild rumors.   It’s 2012, and it’s up to us to be the rock stars, the people we have been waiting for.  UT Knoxville is known to football fans as “Big Orange. ”  We’re “Big Green, and we just beat State–and this is only the beginning.

music:  Pointer SIsters “Yes We Can Can”

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4 responses

12 02 2012
Scott Banbury

Whoo hooo!

12 02 2012
brothermartin

Good to hear from you! Hope to see you in K-ville!

12 02 2012
brothermartin

Dear Rep. Moore,

As you may be aware, a recent ruling by Judge Roy Haynes has struck down Tennessee’s ballot access law, which governs how political parties can get their candidates listed with their party affiliation on the state’s ballot. Among other findings, Judge Haynes threw out the 2.5% of registered voters requirement as being too high a hurdle. The state needs a new ballot access law.

Fortunately, a worthwhile bill was actually introduced last year, but was passed up in favor of the bill that was just declared unconstitutional. That bill was Sen. Stacey Campfield’s S.B. 617, which required minor parties to come up with 2,500 signatures to get their party name on the ballot, and allowed minor parties to nominate by convention rather than by primary. While Judge Haynes’ ruling gave the Green Party the relief of allowing its candidates to list their party affiliation along with their name for the 2012 election, this is not a long-term solution. Senator Campfield’s bill would be. In our current political climate, I think this bill has an advantage in that Sen. Campfield, a Republican, is its author. I would appreciate it very much if you could work with him to re-introduce this bill and get it passed.

If you (and Sen. Campfield, or somebody else) would like to take a further step that would limit the “spoiler” effect of having multiple parties on the ballot, I would like to suggest that Tennessee institute “Instant Runoff Voting.” This is a system in which voters in a multi-candidate race are allowed to indicate their second choice, as well as their first. In the event that no candidate receives an absolute (50%+) majority, the second choices of the candidate with the least number of votes are added to the votes for the remaining candidates, and so on, until a candidate has more than 50% of the votes. This is a somewhat radical step in that, while it is in use in some municipal elections in the U.S., it has not been adopted at a state level in this country, although it is used in several other countries, such as Australia, India and Ireland.

And then there’s the question of whether our voting machines are making an accurate tally of the votes cast on them. I’ve been reading Andrea Novick’s 2007 report to then-AG of NY Eliot Spitzer–the track record of the computerized voting machines we are using here in Tennessee is pretty dismal. But that’s another subject, at least for now.

If you would like to speak with me about the ballot access issue, let me know when to call you.

Thank you very much

12 02 2012
brothermartin

Please feel free to adapt the above letter and send it to your state rep or Senator–or talk with them directly, if you’ve got that kind of connection.

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