Green Party of Tennessee v. Tre Hargett

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0397p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GREEN PARTY OF TENNESSEE; CONSTITUTION X
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Plaintiffs-Appellees, --
PARTY OF TENNESSEE,

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No. 12-5271

,
>
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v.

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TRE HARGETT, in his official capacity as
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Tennessee Secretary of State; MARK GOINS,
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in his official capacity as Coordinator of

Defendants-Appellants. -
Elections for the State of Tennessee,
N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:11-cv-692—William J. Haynes, Jr., District Judge.
Argued: July 25, 2012
Decided and Filed: November 30, 2012
Before: BOGGS, GILMAN, and DONALD, Circuit Judges

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COUNSEL
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.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. This case involves a facial challenge
to several aspects of Tennessee’s statutory scheme for providing ballot access to minor
political parties in state and federal elections. Two minor political parties that seek such

1
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 2

access—the Green Party of Tennessee and the Constitution Party of Tennessee—brought
suit in federal district court in 2011, alleging that (1) the requirements to qualify for the
Tennessee ballot as a “recognized minor party” are overly restrictive and thus
impermissibly burden their First Amendment rights; (2) the requirements to qualify as
a “recognized minor party” are unconstitutionally vague and constitute an improper
delegation of legislative authority; (3) the provisions governing the order in which
political parties are listed on the general-election ballot violate the Fourteenth
Amendment’s Equal Protection Clause; and (4) the prohibition on the use of the words
“independent” and “nonpartisan” in minor-party names contravenes the First
Amendment’s guarantee of free speech.

In February 2012, the district court granted summary judgment in favor of the
plaintiffs on all claims. The court enjoined the state of Tennessee from enforcing the
challenged provisions, ordered that the plaintiffs be placed on the November 2012
general-election ballot, and directed the State to conduct a random public drawing to
determine the order in which each party would appear on the ballot. Tennessee
appealed, and then moved for a partial stay of the district court’s judgment. We granted
a stay only with respect to the random-public-drawing requirement. In the meantime,
the Tennessee General Assembly amended some, but not all, of the invalidated
provisions. For the reasons set forth below, we now REVERSE the judgment of the
district court and REMAND the case for further proceedings consistent with this
Opinion.

I. BACKGROUND

Prior to 2011, Tennessee’s election laws recognized just one category of political
party on the State’s ballot: the “statewide political party.” To qualify for such
recognition, a party needed to either (1) have achieved significant statewide success in
the most recent gubernatorial election (by having at least one of its candidates for
statewide office receive 5% or more of the number of votes cast), or (2) have
demonstrated meaningful statewide support through a different process (by submitting
at least 120 days before the primary election a petition, “signed by registered voters as
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 3

members of the party,” totaling 2.5% or more of the number of votes cast in the most
recent gubernatorial election). This system was challenged in an earlier federal lawsuit
by several minor political parties, including the plaintiffs in this action, and the district
court struck down the ballot-access laws as applied to the challengers. See Libertarian
Party of Tenn. v. Goins, 793 F. Supp. 2d 1064 (M.D. Tenn. 2010).

The Tennessee General Assembly responded to this adverse ruling by amending
the State’s ballot-access laws in 2011. It changed the definition of “statewide political
party” to cover only those parties that meet the 5%-of-the-vote threshold. See Tenn.
Code Ann. § 2-1-104(a)(31). And it created a second category of political party, called
a “recognized minor party,” for those parties that do not meet the 5% threshold but
satisfy the petition requirements, which were left essentially unchanged from the prior
version of the statute. See id. § 2-1-104(a)(24). The complaint in this case focuses
mainly on those requirements, as well as on a few other features of the 2011
amendments.

A. Relevant 2011 amendments

A “recognized minor party” is defined by the 2011 amendments as

any group or association that has successfully petitioned by filing with
the coordinator of elections a petition which shall conform to
requirements established by the coordinator of elections, but which must
at a minimum bear the signatures of registered voters equal to at least
two and one-half percent (2.5%) of the total number of votes cast for
gubernatorial candidates in the most recent election of governor, and on
each page of the petition, state its purpose, state its name, and contain the
names of registered voters from a single county[.]

Tenn. Code Ann. § 2-1-104(a)(24). This 2.5% signature requirement comes directly
from the previously invalidated legislation, as does the deadline for when a party must
submit its petition. That deadline, which is set forth in a separate provision, is 119 days
before the date of the August primary election, see id. §§ 2-13-107(a) (2011) (amended
2012), 2-5-101(a)(1), a time period effectively indistinguishable from the prior 120-day
filing deadline. Under these requirements, a minor party would have had to submit a
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 4

petition containing at least 40,039 valid signatures by April 5, 2012 in order to qualify
for Tennessee’s November 2012 general-election ballot.

In addition to transplanting the petition requirements from statewide political
parties to recognized minor parties, the 2011 amendments make clear that minor parties
must nominate their candidates for governor, Tennessee General Assembly, United
States senator, and United States representative by means of a primary election, to be
held in early August of the election year. Id. § 2-13-202 (2011) (amended 2012). The
candidates for these offices must also submit a nominating petition that “meets the
statutory requirements to be declared a recognized minor party,” id. § 2-13-107(c)
(2011) (amended 2012), meaning that the petition must satisfy the same 2.5% signature
provision and 119-day filing deadline described above. But the candidates for all other
offices (including presidential candidates) may be nominated by any method authorized
under each particular party’s own internal rules. Id. § 2-13-203(a)(1).

Along with these ballot-access laws, the plaintiffs challenge two other statutory
provisions created by the 2011 amendments. The first prescribes the order in which each
party is to be listed on the general-election ballot (hereinafter referred to as the “party-
order provision”). This provision reads: “[O]n general election ballots, the name of
each political party having nominees on the ballot shall be listed in the following order:
majority party, minority party, and recognized minor party, if any.” Id. § 2-5-208(d)(1).
“Majority party” and “minority party,” in turn, refer to the parties whose members hold
the largest and second largest number of seats in the combined houses of the Tennessee
General Assembly. Id. § 2-1-104(a)(11), (12).

The final challenged provision imposes a restriction on the words that a
recognized minor party may use in its name on the ballot. This provision mandates that
the name “shall not include the word ‘independent’ or ‘nonpartisan,’” and that “[t]he
coordinator of elections shall redact any portion of a minor party name that violates this
section.” Id. § 2-13-107(d). The 2011 legislation went into effect in May of that year.
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 5

B. Procedural history

In July 2011, the present lawsuit was filed. The complaint attacked several of
the new provisions on their face. In particular, the plaintiffs alleged that (1) the
requirements to qualify as a “recognized minor party” in Tennessee are overly restrictive
and thus effectively deny them access to the ballot; (2) the requirements to qualify as a
“recognized minor party” are unconstitutionally vague and constitute an improper
delegation of legislative authority; (3) the party-order provision violates the Equal
Protection Clause; and (4) the prohibition on the use of the words “independent” and
“nonpartisan” in minor-party names is barred by the First Amendment.

In granting summary judgment for the plaintiffs, the district court held in
February 2012 that all the challenged provisions were unconstitutional on their face,
with the exception of the 2.5% signature requirement, which the court acknowledged is
a facially “reasonable state regulation.” Green Party of Tenn. v. Hargett, --- F. Supp.
2d ---, 2012 WL 379774, at *42 (M.D. Tenn. Feb. 3, 2012). But the court determined
that empirical evidence submitted by the plaintiffs’ expert, which discussed the costs and
difficulties inherent in collecting signatures as a general matter, essentially “convert[ed]
[the] challenge into . . . an ‘as applied’ challenge.” Id. at *43. Having reached this
conclusion, the court then held that the signature requirement, as applied to the plaintiffs,
substantially burdened their First Amendment rights and could not be justified by a
compelling state interest. The court further concluded that the form of the nominating
petition for minor parties unconstitutionally compelled the disclosure of the signatory’s
party membership.

To remedy these violations, the court “deem[ed that] any deadline in excess of
sixty (60) days prior to the August primary for the filing of petitions for recognition as
a political party is unenforceable”; enjoined “enforcement of the state statutes requiring
Plaintiffs to select their nominees by primary, awarding ballot preference to the majority
party[,] and [prohibiting] the use of ‘Independent or Nonpartisan’ in a political party’s
name”; and required the state to “revise the ‘Nominating Petition’ to delete the reference
that the signatory is a member of the party.” Id. at *56. The court also determined that
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 6

the Green Party of Tennessee’s past electoral support of almost 20,000 votes and the
Constitution Party of Tennessee’s collection of nearly 10,000 signatures were
sufficiently strong showings of support to entitle them to “recognition as political parties
and to have their parties’ names next to their candidates on the general election ballot”
in November 2012. Id. Finally, the court directed the State to conduct a random public
drawing to determine the order in which each party would appear on the November
ballot.

The State timely appealed in order to challenge all of the district court’s rulings
other than the part addressing the compelled disclosure of party membership on the
nominating petition. In March 2012, the State sought a partial stay of the judgment
pending appeal. The State moved to stay (1) the requirement that it place the plaintiffs’
names next to their respective candidates on the November 2012 ballot, and (2) the
requirement that it conduct a random public drawing to determine the position of the
parties on the ballot. When the district court denied the motion later that same month,
the State filed a motion for a partial stay with this court. We granted the stay request in
early August 2012 only with respect to the random-public-drawing requirement.

C. 2012 amendments

As in 2011, the continuing federal litigation spurred the State to further amend
its ballot-access laws. In April 2012, the Tennessee General Assembly enacted Public
Chapter 955, which provides in relevant part that “[r]ecognized minor parties may
nominate their candidates for any office by any method authorized under the rules of the
party or by primary election under this title.” 2012 Tenn. Pub. Acts Ch. 955, § 6
(amending Tenn. Code Ann. § 2-13-203(a)). This amendment, in other words, creates
an alternative route for qualifying as a candidate for a recognized minor party. Whereas
the 2011 legislation required minor parties to select their nominees for certain offices by
means of a primary election, the 2012 legislation allows minor parties to select their
nominees for all offices according to their own rules.

This new route also relaxes some of the procedural requirements: a party that
chooses the “party rules” option is permitted to file its petition—which must still meet
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 7

the 2.5% signature provision—as late as 90 days before the November general election
(as opposed to 119 days before the August primary election). See id. at § 1 (amending
Tenn. Code Ann. § 2-13-107(a)). The party’s candidates are freed from this petition
process altogether. See id. at § 2 (amending Tenn. Code Ann. § 2-13-107(c)). Should
a minor party nevertheless prefer to nominate its candidates through a primary election,
the statute continues to operate as it did before, meaning that the party and its candidates
must each file a petition meeting the 2.5% signature provision and the 119-day filing
deadline.

These changes went into effect in May 2012. No other provisions that the district
court invalidated were amended.

II. ANALYSIS

A. Standard of review

We review de novo the district court’s grant of summary judgment. Huckaby v.
Priest, 636 F.3d 211, 216 (6th Cir. 2011). Summary judgment is proper where “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for summary judgment,
the district court must construe the evidence and draw all reasonable inferences in favor
of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The central issue is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).

B. Tennessee’s ballot-access laws

The plaintiffs’ primary contention in the district court was that Tennessee had set
such a high bar for qualifying as a “recognized minor party” that it had effectively
denied them access to the ballot. More specifically, they argued that the party-primary
requirement, the 119-day filing deadline, and the 2.5% signature provision combined to
impermissibly burden their First Amendment rights. But, as noted above, the Tennessee
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 8

General Assembly has since amended these requirements to provide an alternative (and
less restrictive) route for non-presidential candidates of a minor party to appear on the
general-election ballot. This development raises the threshold question whether the
plaintiffs’ primary claim is now moot, thereby depriving us of jurisdiction to consider
the claim’s merit.

“No principle is more fundamental to the judiciary’s proper role in our system
of government than the constitutional limitation of federal-court jurisdiction to actual
cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation
marks omitted). The mootness doctrine is a critical component of this jurisdictional
limitation. It “requires that there be a live case or controversy at the time that a federal
court decides the case.” Burke v. Barnes, 479 U.S. 361, 363 (1987). “Legislative repeal
or amendment of a challenged statute while a case is pending on appeal usually
eliminates this requisite case-or-controversy because a statute must be analyzed by the
appellate court in its present form.” Ky. Right to Life v. Terry, 108 F.3d 637, 644 (6th
Cir. 1997).

But a case or controversy does not automatically “cease to exist by mere virtue
of a change in the applicable law,” Cam I, Inc. v. Louisville/Jefferson Cnty. Metro Gov’t,
460 F.3d 717, 720 (6th Cir. 2006) (internal quotation marks omitted), because, “if that
were the rule, a defendant could moot a case by repealing the challenged statute and
replacing it with one that differs only in some insignificant respect,” Ne. Fla. Chapter
of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993).
The key question is therefore whether the challenged legislation “has been sufficiently
altered so as to present a substantially different controversy from the one the District
Court originally decided.” Id. at 662 n.3 (internal quotation marks omitted). Put
differently, the question is whether the new statute “operates in the same fundamental
way” as the old statute. Cam I, 460 F.3d at 720 (internal quotation marks omitted).

When the plaintiffs brought this lawsuit in July 2011, Tennessee provided only
one path for minor political parties to gain access to the general-election ballot for
certain high-level offices: the parties had to nominate their candidates through a primary
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 9

election. And to do that, both the party and each individual candidate for one of the
specified offices had to submit a petition meeting the 2.5% signature provision and the
119-day filing deadline. If a party could not muster enough signatures by this deadline,
which fell in early April of the election year, then it would not be recognized as a minor
party. Its name would therefore not appear on either the August primary-election ballot
or the November general-election ballot. By the same token, if a minor-party candidate
for one of the specified offices failed to meet the petition-filing requirements, then the
candidate’s name would appear on the general-election ballot simply as an independent,
not as a member of a political party.

The 2012 legislative amendments substantially changed this scheme. Under the
new rules, minor parties may still avail themselves of the party-primary route to select
their nominees. Should they do so, they (and their candidates) must comply with the
same requirements as before. But minor parties are now given a second option: they are
permitted to nominate their candidates for any office by any method authorized under
the party’s own internal rules. Should a party choose this path, then the party may wait
until 90 days before the November general election to submit a petition meeting the
2.5% signature provision. And the candidates themselves are no longer required to
submit such a petition; they need comply only with the party’s own nominating rules.

The plaintiffs’ ballot-access challenge boils down to two separate claims:
(1) that the party-primary requirement impermissibly burdened their right to select their
own nominees; and (2) that the party-primary requirement, the 119-day filing deadline,
and the 2.5% signature provision combined to deny them access to the ballot. Because
Tennessee now gives minor political parties the option to select their nominees for office
under their own internal rules, the first of these claims is moot. The plaintiffs’
contention to the contrary—that the issue is not moot because the Tennessee General
Assembly could “revers[e] itself at some time in the future and reinstat[e] a mandatory
primary for minor parties”—is pure conjecture. There is simply no evidence in the
record to suggest that this scenario is likely to occur.
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 10

Whether the second claim is also moot is a different question. The district court
held that the 2.5% signature provision was unconstitutional both in combination with the
119-day filing deadline and standing alone. Green Party, 2012 WL 379774, at *3, *43.
That provision—which is still in effect today—was therefore a core component of the
“controversy” below. Because at least this component of Tennessee’s ballot-access laws
remains unconstitutional under the district court’s analysis, the plaintiffs’ second claim
is not moot. See Cam I, 460 F.3d at 720 (“[W]here the changes in the law arguably do
not remove the harm or threatened harm underlying the dispute, the case remains alive
and suitable for judicial determination.” (internal quotation marks omitted)). Moreover,
the fact that the November 2012 election has now taken place does not moot this
controversy because the issue falls comfortably under the “capable of repetition, yet
evading review” exception to the mootness doctrine. See Libertarian Party of Ohio v.
Blackwell, 462 F.3d 579, 584-85 (6th Cir. 2006) (“Considering the ‘somewhat relaxed’
repetition standard employed in election cases, this issue easily satisfies the ‘capable of
repetition, yet evading review’ exception and is not moot.” (citation omitted)).

But that does not mean that the effect of the new legislation should be determined
by this court in the first instance. When “a change in law does not extinguish the
controversy, the preferred procedure is for the court of appeals to remand the case to the
district court for reconsideration of the case under the amended law.” Hadix v. Johnson,
144 F.3d 925, 934 (6th Cir. 1998), overruled on other grounds by Miller v. French,
530 U.S. 327 (2000). “We normally pursue this course of action so that the district court
may have an opportunity to pass judgment on the changed circumstances.” Id. at 935
(brackets and internal quotation marks omitted).

In our view, the district court should be given this opportunity here. The court
should be able to evaluate the various components of Tennessee’s election laws as part
of the larger framework for providing ballot access to minor political parties. See
Libertarian Party of Ohio, 462 F.3d at 586 (“Our inquiry is not whether each law
individually creates an impermissible burden but rather whether the combined effect of
the applicable election regulations creates an unconstitutional burden on First
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 11

Amendment rights.”). That framework has fundamentally changed since the district
court decided the case because the party-primary requirement is no longer mandatory,
the petition-filing deadline has moved from seven months before the general election to
only three months before, and minor-party candidates are no longer required to submit
nominating petitions meeting the 2.5% signature provision and 119-day filing deadline
unless their party chooses to hold a primary election.

These changes are significant enough to warrant remanding the ballot-access
claim to the district court for reconsideration. As part of its reconsideration, however,
the district court must take into account that the 2.5% signature requirement, standing
alone, is not unconstitutional on its face. See, e.g., Am. Party of Texas v. White, 415 U.S.
767, 789 (1974) (“Demanding signatures equal in number to 3% or 5% of the vote in the
last election is not invalid on its face.”); Jenness v. Fortson, 403 U.S. 431 (1971)
(upholding a Georgia law requiring independent and minor-party candidates to secure
supporting signatures amounting to at least 5% of the total voters from the last election).

C. Improper-delegation and facial-vagueness claims

The plaintiffs’ next allegation is that the definition of a “recognized political
party,” as set forth in Tenn. Code Ann. § 2-1-104(a)(24), constitutes an impermissible
delegation of legislative authority and is unconstitutionally vague. This allegation
focuses on the requirement that a minor party

fil[e] with the coordinator of elections a petition which shall conform to
requirements established by the coordinator of elections, but which must
at a minimum bear the signatures of registered voters equal to at least
two and one-half percent (2.5%) of the total number of votes cast for
gubernatorial candidates in the most recent election of governor.

Id. The question is whether this statutory provision permits the coordinator of elections
to increase the required number of signatures or to impose other substantive
requirements on minor-party petitions, or whether the provision limits the authority of
the coordinator of elections to creating regulations governing only the ballot’s form.
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 12

Taking the vagueness claim first, a statute will be struck down as facially vague
only if the plaintiff has “demonstrate[d] that the law is impermissibly vague in all of its
applications.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
497 (1982). The purpose of this doctrine is to ensure that both those who enforce a
statute and those who must comply with it “know what is prohibited,” Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972); it is not “to convert into a constitutional dilemma
the practical difficulties” of crafting a law that is “general enough to take into account
a variety of human conduct” yet specific enough “to provide fair warning,” Colten v.
Kentucky, 407 U.S. 104, 110 (1972). Moreover, federal courts must construe challenged
state statutes, whenever possible, so as “to avoid constitutional difficulty.” Davet v. City
of Cleveland, 456 F.3d 549, 554 (6th Cir. 2006) (internal quotation marks omitted).

Heeding that obligation here, and mindful of the purposes underlying the
vagueness doctrine, we conclude that Tenn. Code Ann. § 2-1-104(a)(24) is not
impermissibly vague. The district court determined that, aside from the 2.5% minimum
signature provision, the statute grants the coordinator of elections “unfettered discretion
to establish party qualifying petition requirements that the legislature failed to establish,
rendering this statute unconstitutionally vague.” Green Party, 2012 WL 379774, at *55.
But a fair reading of the statute does not compel an interpretation that grants such
unfettered discretion. The statute, although certainly not a model of clarity, can
reasonably be read as giving the coordinator of elections the discretion to create
requirements addressing only the petition’s form, not to create substantive requirements
affecting, for example, the time allowed for collecting signatures or the number of
signatures required on the petition. And because the statute can reasonably be construed
in this way (and is construed in this way by the State, as noted in its brief), we must
adopt that construction. See Chapman v. United States, 500 U.S. 453, 464 (1991)
(“Every reasonable construction must be resorted to, in order to save a statute from
unconstitutionality.” (brackets and internal quotation marks omitted)). The statute is
therefore not unconstitutionally vague on its face.
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 13

Nor does the statute constitute an impermissible delegation of legislative
authority, for similar reasons. Article I, § 4, of the U.S. Constitution provides that “[t]he
Times, Places and Manner of holding Elections for Senators and Representatives, shall
be prescribed in each State by the Legislature thereof.” The statute at issue in this case
can reasonably be interpreted to comply with this provision. Under such an
interpretation, the Tennessee General Assembly prescribed the key substantive
regulations governing minor-party nominating petitions, including the 2.5% signature
provision and 119-day filing deadline, while expressly delegating to the coordinator of
elections the administrative task of establishing the petition’s form. Because this
interpretation is both reasonable and constitutional, we conclude that the district court
erred in invalidating Tenn. Code Ann. § 2-1-104(a)(24).

D. Party-order provision

The plaintiffs also challenged as facially unconstitutional Tennessee’s provision
that “on general election ballots, the name of each political party having nominees on
the ballot shall be listed in the following order: majority party, minority party, and
recognized minor party, if any.” Id. § 2-5-208(d)(1). In striking down this provision,
the district court concluded that the State’s “preferential placement of the majority party
candidates on election ballots provides an impermissible ‘voting cue’ that violates
Plaintiffs’ First Amendment rights as well as the First Amendment rights of Tennessee
voters.” Green Party, 2012 WL 379774, at *52. The court based its conclusion largely
on two empirical studies, one of which found “‘that ballot order effects, particularly in
relatively low salience elections, are both statistically significant and large enough in
magnitude to alter the outcomes of elections.’” Id. (quoting Laura Miller, Election by
Lottery: Ballot Order, Equal Protection, and the Irrational Voter, 13 N.Y.U. J. Legis.
& Pub. Pol’y 373, 405 (2010)).

On appeal, the State stresses the facial nature of this challenge. “A facial
challenge to a legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under
which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 14

Courts do not usually grant this “strong medicine . . . because such efforts do not seek
to invalidate laws in concrete, factual settings”—the typical course of constitutional
litigation—“but to leave nothing standing.” Fieger v. Mich. Supreme Court, 553 F.3d
955, 960 (6th Cir. 2009) (internal quotation marks omitted). Facial challenges, the
Supreme Court has noted, are disfavored for several other, somewhat overlapping
reasons: they “often rest on speculation” and thus “raise the risk of premature
interpretation,” they “run contrary to the fundamental principle of judicial restraint,” and
they “threaten to short circuit the democratic process.” Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 450-51 (2008) (internal quotation marks omitted).

Viewed through the prism of these background principles, the plaintiffs’ facial
challenge to Tenn. Code Ann. § 2-5-208(d)(1) falls short. As the State points out, “[t]he
effect of ballot placement on voting is a matter of fact, and virtually every court that has
found prejudice resulting from preferential ballot placement has done so based upon
significant evidence demonstrating such prejudice in[]elections in that state.” The record
in this case, by contrast, contains no comparable evidence. Because the plaintiffs
brought this case as a facial challenge, “we have no evidentiary record against which to
assess their assertions that voters will be confused” or influenced by the position of the
names on the ballot. See Wash. State Grange, 552 U.S. at 455. So we are left to
speculate about the form of the ballot, upon which the claim of positional bias hinges.
And “[a]s long as we are speculating,” we must, out of deference to the principle of
federalism, “ask whether the ballot could conceivably be printed in such a way as to
eliminate the possibility of widespread” positional bias “and with it the perceived threat
to the First Amendment.” See id. at 455-56.

We need not strain to conceive of such a ballot. If one of the studies cited by the
district court is to be believed, Tennessee might in fact already use a ballot free of any
widespread positional bias. The State presumptively uses what is known as a “party
block” ballot form for general elections, meaning that “all of the candidates for a party
are listed in a single column.” Miller, 13 N.Y.U. J. Legis. & Pub. Pol’y at 388 & n.77;
see Tenn. Code Ann. § 2-5-206(b)(2) (mandating the “party block” ballot form for
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 15

general elections, subject to certain exceptions). This form is distinct from an “office
block” ballot form, “in which candidates are listed vertically under the heading of the
office they seek.” Miller, 13 N.Y.U. J. Legis. & Pub. Pol’y at 388. The study cited by
the district court analyzed elections “in states that use the ‘office block’ ballot form in
general elections,” but not elections in states that use the “party block” form. Id. As for
the “party block” states, the study’s author hypothesized that, “[g]iven the salience of
the party label with this type of ballot, one should expect that positional effects would
be minimal.” Id. Consequently, the evidence on which the district court relied provided
no basis to hold that Tenn. Code Ann. § 2-5-208(d)(1) is unconstitutional on its face.

While the State’s appeal was pending, however, the plaintiffs received our
permission to file an exhibit of a sample general-election ballot from Washington
County that uses the office-block format. But this exhibit is not sufficient to alter our
conclusion that the district court wrongly held that the party-order provision is facially
unconstitutional. The significance, if any, of Washington County’s general-election
ballot format or any other Tennessee ballots that might use the office-block format is not
for us to decide in the first instance, especially because such a format appears to conflict
with the presumptive “party block” ballot specified in Tenn. Code Ann. § 2-5-206(b)(2).
See Taft Broad. Co. v. United States, 929 F.2d 240, 243-44 (6th Cir. 1991) (listing cases
stating the general rule that issues not litigated in the trial court are not appropriate for
appellate consideration). Rather, the district court is the best forum in which to further
develop the factual record as necessary.

E. Restrictions on minor-party names

The plaintiffs’ final challenge is to Tennessee’s prohibition on minor parties
using the words “independent” or “nonpartisan” in their names on the ballot. See Tenn.
Code Ann. § 2-13-107(d). Before we can consider the merits of this claim, however, we
must determine whether we have jurisdiction to decide the issue.

As previously mentioned, the United States Constitution limits federal-court
jurisdiction to actual cases or controversies. The doctrine of standing “is an essential
and unchanging part of the case-or-controversy requirement,” Lujan v. Defenders of
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 16

Wildlife, 504 U.S. 555, 560 (1992), because it prevents the installation of “the federal
courts as virtually continuing monitors of the wisdom and soundness” of the elected
branches of government, Laird v. Tatum, 408 U.S. 1, 15 (1972). Properly applied, the
standing doctrine “assure[s] that the legal questions presented to the court will not be
resolved in the rarified atmosphere of a debating society, but in a concrete factual
context conducive to a realistic apprehension of the consequences of judicial action.”
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 472 (1982).

To this end, standing requires a plaintiff to have suffered an “injury in fact” that
is (1) “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical,” (2) “fairly traceable to the challenged action of the defendant,” and
(3) likely to “be redressed by a favorable decision.” Lujan, 504 U.S. at 560 (alterations
and internal quotation marks omitted). These three elements, the Supreme Court has
repeatedly explained, constitute the “irreducible constitutional minimum” for standing.
See id.

The key question in the present case is whether the plaintiffs have suffered an
injury in fact that satisfies the first element of Lujan. As the district court noted, the
plaintiffs concede that they do not intend to use either prohibited word in their names on
the ballot. Yet they maintain that they have suffered an actual injury because “the mere
existence of [the name regulation] has an extraordinary chilling effect on [their] choice
of the name by which they wish to be known and represented on the ballot.” (Emphasis
in original.) This supposed chilling effect derives from the plaintiffs’ general
observation that, “[i]f a party undertook a petition drive in which they included the
words ‘independent’ or ‘nonpartisan’ in their name, they risk being denied ballot
inclusion.”

As an initial matter, the plaintiffs overstate the effect of the statutory provision
at issue. A party that includes a prohibited word as part of its name will not be denied
ballot inclusion altogether; rather, the prohibited word will simply be redacted from the
party’s name on the ballot. See Tenn. Code Ann. § 2-13-107(d). But this point aside,
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 17

the more fundamental problem with the plaintiffs’ argument is that it completely
misunderstands the injury-in-fact requirement. “A threatened injury must be certainly
impending to constitute injury in fact,” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)
(internal quotation marks omitted), and it “must affect the plaintiff in a personal and
individual way,” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)
(internal quotation marks omitted). The injury asserted by the plaintiffs in this
case—that they have been impacted because the speech of hypothetical others might be
chilled—does not meet this standard.

Perhaps recognizing this, the plaintiffs argue that they have suffered a personal
and “certainly impending” injury because the statute “makes it a certainty that [they]
would be denied the right to use the words ‘independent’ or ‘nonpartisan’ in their name”
if they sought to do so. (Emphasis removed.) But the fact that the plaintiffs would be
denied an asserted right if they chose to exercise it only begs the question whether they
will in fact choose to exercise that right. With respect to that question, the answer is
clearly “no” in light of the plaintiffs’ concession that they do not intend to include either
prohibited word in their names on the ballot. The statute therefore will not injure them
in a way that is both “particularized” and “imminent.” See Lujan, 504 U.S. at 560.

One can of course conceive of a future scenario in which the plaintiffs decide to
change their names to include one of the prohibited words. But the standing inquiry is
not an “exercise in the conceivable”; it “requires . . . a factual showing of perceptible
harm.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (alteration in original)
(internal quotation marks omitted). That showing is wholly absent here.

The district court acknowledged as much, but nevertheless determined that the
plaintiffs had standing by analyzing the question from a higher level of generality.
Pointing to a number of cases in which plaintiffs were found to have standing to
challenge petition-filing deadlines and signature requirements before having actually
filed a petition themselves, the court concluded that the plaintiffs in this case have
standing to challenge the statute in question because it “clearly impacts a minor political
party’s ballot access” and, “in ballot access controversies, all relevant statutes impacting
No. 12-5271 Green Party of Tenn., et al. v. Hargett, et al. Page 18

ballot access of minority political parties must be evaluated collectively.” Green Party,
2012 WL 379774, at *29.

This ruling is erroneous. Each of the cases relied on by the district court
involved challenges to filing deadlines and signature requirements that the plaintiffs
were inevitably going to have to comply with in order to gain ballot access. See, e.g.,
Storer v. Brown, 415 U.S. 724 (1974); Williams v. Rhodes, 393 U.S. 23 (1968);
Stevenson v. State Bd. of Elections, 794 F.2d 1176 (7th Cir. 1986). Not one of these
cases, however, holds that a plaintiff with standing to challenge certain requirements that
affect its ability to get on the ballot also has standing to challenge other requirements
that do not so affect its ability. We therefore conclude that the plaintiffs’ “prohibited
names” challenge must be dismissed on remand for lack of subject-matter jurisdiction.

III. CONCLUSION

For all the reasons set forth above, we REVERSE the judgment of the district
court and REMAND the case for further proceedings consistent with this Opinion.