Green Party of Tennessee v. Tre Hargett

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0201p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

GREEN PARTY OF TENNESSEE; CONSTITUTION PARTY ┐

OF TENNESSEE, │

Plaintiffs-Appellees, │

│ Nos. 13-5975/6280

│

v. >

│

│

TRE HARGETT, in his official capacity as Tennessee │

Secretary of State; MARK GOINS, in his official │

capacity as Coordinator of Elections for the State of │

Tennessee, │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:11-cv-00692—William J. Haynes, Jr., District Judge.

Argued: August 7, 2014

Decided and Filed: August 22, 2014

Before: COLE, Chief Judge; COOK and WHITE, Circuit Judges.

_________________

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.

1

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 2

_________________

OPINION

_________________

COLE, Chief Judge. The Green Party of Tennessee and the Constitution Party of

Tennessee seek to appear on Tennessee’s general election ballots as minor political parties. In

February 2011, they filed suit under 42 U.S.C. § 1983 against Tennessee state officials to

challenge laws that they claim have unconstitutionally impeded their access to the ballot. One

year later, the district court granted summary judgment to the plaintiffs; the defendants then

appealed, and this court reversed and remanded, in part because Tennessee had amended the

statutes at issue. On remand, both parties filed cross-motions for summary judgment, and the

district court again granted the plaintiffs’ motion. Defendants again appeal.

This appeal presents four questions: (1) whether the plaintiffs have standing to challenge

Tennessee’s election laws, (2) whether the state’s ballot-access scheme for minor political parties

unconstitutionally burdens the plaintiffs’ First Amendment rights, (3) whether the state’s

preferential ballot-ordering statute impermissibly discriminates against minor political parties in

violation of the First and Fourteenth Amendments, and (4) whether the district court properly

awarded attorney’s fees to the plaintiffs. We conclude that the plaintiffs do have standing, but

we reverse and remand the district court’s order granting summary judgment to the plaintiffs on

their ballot-access and ballot-ordering claims. We further conclude that the plaintiffs are a

prevailing party entitled to attorney’s fees, but we vacate the district court’s fee award and

remand for recalculation.

I. BACKGROUND

This case centers on two sets of Tennessee statutes, the first regarding when a political

party’s name may appear alongside its chosen candidates on the state’s general-election ballot,

and the second regarding the order in which parties’ and candidates’ names appear on the ballot.

The plaintiffs, minor political parties active in Tennessee, allege that they consistently have been

denied access to Tennessee’s ballot due to the state’s unduly strict requirements. To be clear,

this case does not involve Tennessee’s rules regarding when a particular candidate may appear

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on the ballot; it involves only the requirements a political party must meet. In fact, under

Tennessee law, a candidate with no party affiliation can very easily qualify to appear on the

ballot upon submitting a petition signed by as few as twenty-five registered, eligible voters. See

Tenn. Code Ann. § 2-5-101(b).

The full history of this litigation is addressed in a prior opinion from this court, as well as

two district court opinions. See Green Party of Tenn. v. Hargett, 882 F. Supp. 2d 959 (M.D.

Tenn. 2012) (Green Party I), rev’d, 700 F.3d 816 (6th Cir. 2012) (Green Party), remanded to

953 F. Supp. 2d 816 (M.D. Tenn. 2013) (Green Party II). The facts relevant to this appeal are

provided below.

A. Tennessee’s Ballot-Access and Ballot-Ordering Provisions

Since the early 1960s, Tennessee has imposed certain requirements on organizations

seeking to be recognized as political parties on the state’s ballots. See Libertarian Party of Tenn.

v. Goins, 793 F. Supp. 2d 1064, 1069–70 (M.D. Tenn. 2010) (summarizing history of ballot-

access scheme). The plaintiffs argue that these requirements effectively bar them from appearing

on Tennessee’s general-election ballot, in violation of their First Amendment rights to expression

and political association. In support, they note that the only minor political party since 1961 to

have qualified for ballot access via petition was George Wallace’s American Independent Party,

which qualified in 1968 and 1972. See Green Party I, 882 F. Supp. 2d at 969.

In 2011, when the plaintiffs filed their complaint in this case, political parties could

qualify to appear on the ballot in one of two ways. First, if, in the past four years, at least one of

a party’s candidates running for state office had received a number of votes equal to or greater

than 5% of the total votes cast in the previous gubernatorial election, that party would be

designated a “statewide political party” and as such would automatically qualify for inclusion on

the next general election ballot. See Tenn. Code Ann. § 2-1-104(a)(31) (2011). Second, a party

that did not meet this 5%-vote threshold could seek inclusion—as a so-called “recognized minor

party”—by submitting a petition signed by a number of registered voters equal to or greater than

2.5% of the total vote cast in the previous gubernatorial election. See id. § 2-1-104(a)(24)

(2011). This petition was due in April, 119 days before Tennessee’s primary election held in

early August. See id. §§ 2-13-107(a) (2011) (amended 2012, 2014), 2-5-101(a)(1) (2011).

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Furthermore, when this litigation began, participation in Tennessee’s primary election was

mandatory for certain offices. See id. §§ 2-13-202 (2011) (amended 2012), 2-13-203 (2011)

(amended 2012). As addressed below, these requirements have since changed—which is in large

measure why we now take a second pass at the plaintiffs’ claims.

The plaintiffs also challenge a statute requiring that political parties appear on

Tennessee’s general-election ballots “in the following order: majority party, minority party, and

recognized minor party, if any,” with the names of any independent candidates listed last. Id.

§ 2-5-208(d)(1) (2011) (hereinafter the “ballot-ordering” provision). The plaintiffs argue that

this provision, which has remained unchanged during this litigation, unconstitutionally

discriminates against minor parties by conferring an advantage on the Republican and

Democratic Parties.

B. The History of This Case

1. Initial Proceedings in the District Court

The plaintiff political parties filed this lawsuit in July 2011, challenging the ballot-access

and ballot-ordering provisions described above as well as an additional statute not relevant here.

As the plaintiffs’ attorney acknowledged at oral argument for the instant appeal, the complaint

attacked Tennessee’s election statutes on the basis that they were facially invalid. As discovery

proceeded, both the plaintiffs and the defendants submitted reports from election-law experts

regarding the effects of Tennessee’s ballot-access scheme on minor parties; the defendants also

filed affidavits from state election officials explaining why, in their view, the 119-day petition-

filing deadline was necessary to prepare ballots for the state’s August primary elections.

The plaintiffs moved for summary judgment, which the district court granted as to all of

their claims. The court held unconstitutional Tennessee’s 2.5% petition-signature requirement

and 119-day filing deadline, both standing alone and in combination, and also invalidated

Tennessee’s ballot-ordering provision. Green Party I, 882 F. Supp. 2d at 1008–09, 1013–14,

1016. In regard to the ballot-access scheme, the district court concluded that the parties’ use of

expert testimony and empirical data had “convert[ed] [the p]laintiffs’ challenge into . . . an ‘as

applied’ challenge.” Id. at 1007. The court enjoined Tennessee from enforcing the offending

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 5

statutes, ordered that the Green Party and Constitution Party be listed alongside the names of

their respective candidates on the 2012 general-election ballot, and instructed the state to

“conduct a public random drawing” to determine the order in which the parties would be listed

on the ballot. Id. at 1019. The defendants appealed and sought a partial stay of the district

court’s order. This court granted their request for a stay only as to the random drawing for ballot

order. See Green Party of Tenn. v. Hargett, 493 F. App’x 686 (2012) (per curiam).

After the defendants had filed their notice of appeal, the plaintiffs moved for attorney’s

fees, which the defendants opposed in part. Of the approximately $90,000 in fees that the

plaintiffs requested, the court granted $65,181 after concluding that some hours had been “block-

billed” or not described with the necessary specificity.

2. Tennessee’s Statutory Amendments

In the spring of 2012, while the defendants’ appeal was pending, Tennessee amended its

ballot-access statutes. The legislature eliminated the requirement that all parties’ candidates for

certain offices be selected by primary election and replaced it with a provision permitting minor

parties to “nominate their candidates for any office by any method authorized under the rules of

the party or by primary election.” 2012 Tenn. Pub. Acts Ch. 955, § 6 (amending Tenn. Code

Ann. § 2-13-203(a)) (emphasis added). Under the new regime, if a party chooses to nominate by

its own procedures, rather than by primary election, the party must then qualify to appear on the

general election ballot by filing a petition meeting the 2.5% signature requirement at least 90

days before the general election. 2012 Tenn. Pub. Acts. Ch. 955, § 1 (amending Tenn. Code

Ann. § 2-13-107(a)). On the other hand, if a party chooses to hold a primary election, the 2.5%

signature requirement and original petition-filing deadline—119 days before the primary

election, in early April—remain unchanged. Tenn. Code. Ann. § 2-13-107(a)(1) (2012).

3. The Initial Appeal

In the fall of 2012, after that year’s general election, a panel of this court reversed the

district court’s grant of summary judgment to the plaintiffs and remanded the case for further

development. Green Party, 700 F.3d at 819. In doing so, the court noted that Tennessee’s

amendments to its ballot-access scheme had “fundamentally changed” the legal framework at

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issue and concluded that the district court should have the opportunity to re-evaluate the

plaintiffs’ claims. Id. at 824.

Two aspects of the panel’s decision are particularly relevant now. First, the panel

observed that, although minor parties were no longer compelled to hold primary elections, they

were still bound by the 2.5% signature requirement. Because this provision remained in place,

the panel reasoned that the plaintiffs’ ballot-access claim was not moot. It therefore remanded

this claim, instructing the district court “to evaluate the various components of Tennessee’s

election laws as part of the larger framework for providing ballot access to minor political

parties.” Id. However, the panel drew an important legal conclusion, by which it intended to

limit the district court’s analysis: it concluded “that the 2.5% signature requirement, standing

alone, is not unconstitutional on its face.” Id. (citing Am. Party of Tex. v. White, 415 U.S. 767,

789 (1974), and Jenness v. Fortson, 403 U.S. 431 (1971)).

Second, the panel remanded the plaintiffs’ claim regarding the ordering of parties on

general-election ballots. Characterizing this challenge as facial in nature, the panel concluded

that it “f[ell] short” of the difficult standard such claims entailed. Id. at 826. As the panel

explained, the district court record did not establish how Tennessee’s ballots were formatted,

which the panel found relevant to the question of whether, and to what degree, the order of

parties affects voter behavior. Id. at 827 (citations omitted). The panel therefore remanded for

further factual development. Id.

4. After Remand

About two months after the case was remanded, the plaintiffs again moved for summary

judgment, arguing that the existing record established that the Tennessee statutes were

unconstitutional notwithstanding this court’s view that the ballot-access scheme had

fundamentally changed. Little additional discovery occurred on remand, though the plaintiffs

did submit a copy of each Tennessee county’s 2012 general-election ballot, as relevant to their

claim regarding preferential ballot-ordering. The defendants filed a response as well as a cross-

motion for summary judgment. They submitted to the court an additional affidavit and pointed

to evidence already in the record to argue that the plaintiffs lacked standing in light of the recent

statutory changes and that their claims lacked merit.

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Again, the district court granted summary judgment to the plaintiffs. Green Party II,

953 F. Supp. 2d at 823. The court first concluded that the 2.5% signature requirement, in

combination with the new 90-day filing deadline, was greater than necessary to show “a

modicum of voter support for ballot access,” and that “historical and expert proof” established

that the requirement “imposes a severe burden on [p]laintiffs’ First Amendment rights.” Id.

Second, the court held that Tennessee’s ballot-ordering provision violated the Fourteenth

Amendment because empirical studies “relied upon by [other] courts” demonstrate that a

candidate’s placement on the ballot affects voting behavior. Id. The defendants now appeal this

second grant of summary judgment.

The defendants also appeal the district court’s award of attorney’s fees to the plaintiffs.

As noted, the district court initially granted the plaintiffs $65,181 in fees. After a panel of this

court reversed and remanded the case, the defendants unsuccessfully moved for relief from the

fee award, arguing that the plaintiffs were no longer a prevailing party. The court then re-

granted summary judgment, and the plaintiffs sought additional fees incurred after remand,

which the defendants opposed. The district court granted in part the plaintiffs’ new motion for

fees, awarding them an additional $15,587. On appeal, the defendants argue that both the

original and the additional fee awards were erroneous.

II. ANALYSIS

A. Standard of Review

This court reviews a grant of summary judgment de novo. Green Party, 700 F.3d at 822

(citing Huckaby v. Priest, 636 F.3d 211, 216 (6th Cir. 2011)). A court may grant summary

judgment only “if the movant shows that 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). If the court

determines that there are genuine disputes over material facts—“facts that might affect the

outcome of the suit”—it must deny the motion for summary judgment. Villegas v. Metro. Gov’t

of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). In making this determination, we construe the

evidence “in the light most favorable to” the non-moving party. Id.

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B. Standing

As an initial matter, the defendants assert that the plaintiffs lack standing to challenge

Tennessee’s ballot-access and ballot-ordering statutes. This argument relies largely on the fact

that the state’s intervening statutory amendments provided the plaintiffs with a new means of

appearing on the ballot. Although the plaintiffs’ complaint originally challenged three of

Tennessee’s ballot-access provisions on their own and in combination—the primary-election

requirement, the 2.5% signature requirement, and the 119-day petition-filing deadline—this

scheme for appearing on the ballot is now optional. See 2012 Tenn. Pub. Acts Ch. 955, § 6

(amending Tenn. Code Ann. § 2-13-203(a)). The defendants therefore argue that because the

plaintiffs have not stated or demonstrated that they intend to select candidates by primary

election, rather than by their own procedures, they no longer have standing to attack these

provisions. We disagree.

1. Legal Framework for Standing

The doctrine of standing functions to ensure that courts apply the judicial power only to

“cases” and “controversies” and not to abstract legal quandaries. See U.S. Const., art. III, § 2,

cl. 1. Put differently, standing allows courts to determine whether a plaintiff has a “personal

stake in the outcome of the controversy.” Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334,

2341 (2014) (internal quotation marks omitted). When a plaintiff asserts only an

“undifferentiated, generalized grievance about the conduct of government” and fails to show that

he or she has suffered a particular harm, courts will deny the plaintiff standing. Lance v.

Coffman, 549 U.S. 437, 442 (2007).

To demonstrate standing, a plaintiff must show an “injury in fact,” meaning an injury to a

legally cognizable interest that is “concrete and particularized” and “actual and imminent,” rather

than “conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(internal quotation marks omitted). Additionally, the plaintiff must demonstrate “a causal

connection between the injury” and the defendant’s conduct, and must show that a favorable

decision from the court would likely redress the harm. Id. at 560–61. The defendants argue that

the Green Party and Constitution Party lack the first requirement, an injury in fact.

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2. Ballot-Access Provisions

Although the defendants correctly note that the plaintiffs are no longer compelled to hold

primary elections, one key aspect of their challenge still stands. Regardless of how the plaintiffs

choose to select their candidates, they will not appear on Tennessee’s general-election ballot

unless they circulate a petition and meet the 2.5% signature requirement. This court, in the

initial appeal, relied on this point when it noted that the intervening changes to Tennessee law

did not render the plaintiffs’ ballot-access claim moot. Green Party, 700 F.3d at 822–24.

Moreover, the signature requirement applies indefinitely. To have any hope of participating in a

general election, a minor political party must consistently concern itself with how to qualify for

ballot access and, necessarily, how to obtain the required number of signatures. A minor

political party can escape the petition-signature requirement only by attaining “statewide

political party” status—which would, of course, first require the party to file a qualifying petition

and participate in a general election. See Tenn. Code Ann. § 2-1-104(a)(31).

Granted, under the amended laws, the plaintiffs have more time to collect the necessary

signatures—until 90 days before the general election, should they choose not to hold a primary.

But this new fact merely alters the court’s analysis; it does not deprive the plaintiffs of standing.

Notwithstanding other changes to the law, the plaintiffs continue to assert that the 2.5%

requirement is unworkable in light of Tennessee’s “larger framework” for regulating ballot

access. Green Party, 700 F.3d at 824.

The records in this case and in other cases involving these parties establish that the

plaintiffs have actively participated in Tennessee politics, even though neither has qualified to

appear on a ballot by petition. Both parties have endorsed their chosen candidates in Tennessee,

who then appeared on the state’s ballot without a political affiliation; additionally, the

Constitution Party has tried but failed to collect the requisite number of signatures. See Green

Party I, 882 F. Supp. 2d at 968–69; Goins, 793 F. Supp. 2d at 1072–73. In light of Tennessee’s

stringent and costly ballot-access requirements—particularly, those in effect before 2012—it is

understandable that the plaintiffs have chosen to participate in state politics without seeking

party recognition in all election cycles.

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Furthermore, the plaintiffs have suffered a unique, individualized harm as a result of

Tennessee’s ballot access laws, an “injury peculiar to” them and not “common to all members of

the public.” Lance, 549 U.S. at 440 (internal quotation marks omitted). Tennessee’s ballot-

access laws have restricted the plaintiffs’ political activities within the state and have limited

their ability to associate as political organizations, and the plaintiffs have therefore articulated “a

factual showing of perceptible harm” resulting from the state’s regulations. See Lujan, 504 U.S.

at 566; see also Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1152–54 (2013) (distinguishing,

in the First Amendment context, between “allegations of a subjective chill” on free expression,

which do not confer standing, and allegations that government acts “regulate, constrain, or

compel” the plaintiff’s actions, which may confer standing (alteration and internal quotation

marks omitted)); see also LaRoque v. Holder, 650 F.3d 777, 786–87 (D.C. Cir. 2011) (candidate

had standing to challenge application of § 5 of the Voting Rights Act without any “obligation to

demonstrate definitively” that he would have a better chance of succeeding without the

application of § 5); Krislov v. Rednour, 226 F.3d 851, 855, 857–58 (7th Cir. 2000) (candidate

had standing to challenge petition-circulation requirement despite having voluntarily dropped out

of race for office). Because the 2.5% signature requirement directly affects the plaintiffs’ ability

to associate and campaign for political office, they maintain standing to challenge Tennessee’s

new ballot-access scheme.

3. Ballot-Ordering Provision

The defendants further argue that because plaintiffs have not qualified for ballot access in

an upcoming election, they have not suffered an injury in fact arising from the state’s ballot-

ordering provision. This argument likewise fails. As discussed above, the plaintiffs have

participated in Tennessee’s electoral politics in various ways, including by backing candidates

listed as independents on the state’s ballots. These independent candidates, it bears noting, were

affected by the ballot-ordering statute. Furthermore, as the district court noted in its second

order granting summary judgment, the plaintiffs did in fact appear on the general election ballot

in 2012 as a result of the court’s first order and were therefore subject to the ballot-ordering rule

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at that time. Green Party II, 953 F. Supp. 2d at 843. We conclude that the plaintiffs have

standing to pursue their ballot-access claim as well as their ballot-ordering claim.1

C. Tennessee’s 2.5% Petition-Signature Requirement and its Overall Ballot-Access

Scheme

At the core of the plaintiffs’ ballot-access claim is Tennessee’s 2.5% petition-signature

requirement, which remains unchanged despite the state’s recent statutory amendments. The

record, and the plaintiffs’ arguments before this court, clearly identify the signature requirement

as the key barrier impeding the plaintiffs from participating in general elections. But we can

evaluate the impact of this requirement only within the context of Tennessee’s ballot-access

scheme as a whole, including its new deadline for submitting petitions. See Green Party,

700 F.3d at 824 (citing Libertarian Party of Ohio v. Blackwell (Blackwell), 462 F.3d 579, 586

(6th Cir. 2006)). Moreover, because the signature requirement “standing alone, is not

unconstitutional on its face,” id. at 824, we must consider its actual effects on the plaintiffs

specifically. Because we conclude that the record does not allow us to determine the extent to

which the plaintiffs are burdened by the signature requirement, as it operates in combination with

Tennessee’s new deadline and other aspects of its ballot-access scheme, we reverse the district

court’s grant of summary judgment and remand for further development of the record.

1. Legal Framework for Ballot-Access Claims

The right of individuals to associate in political organizations, and the right of citizens to

cast a meaningful vote, are among the most important values in our democracy. See Blackwell,

462 F.3d at 585 (citing Williams v. Rhodes, 393 U.S. 23, 30 (1968)). Associational rights and

voting rights are closely connected, since “the right to form a party for the advancement of

1

Although the defendants challenge only the plaintiffs’ standing, other concepts of justiciability help to

illustrate why the plaintiffs have suffered a cognizable injury. See 13B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 3531.12 (3d ed. 1998) (observing that “[r]ipeness and mootness easily could be

seen as the time dimensions of standing”). As the plaintiffs aptly argue, their alleged injury is not moot because it is

“capable of repetition, yet evading review.” See Libertarian Party of Mich. v. Johnson, 714 F.3d 929, 930 (6th Cir.

2013); Libertarian Party of Ohio v. Blackwell (Blackwell), 462 F.3d 579, 585 (6th Cir. 2006). Similarly, the

plaintiffs’ claim is not unripe, as it “arises in a concrete factual context and concerns a dispute that is likely to come

to pass.” Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc) (internal quotation marks omitted).

Moreover, the plaintiffs would likely suffer hardship if they must wait to adjudicate this claim. Id. If this court

were to hold that the plaintiffs can challenge the ballot-ordering statute only after qualifying for ballot access, a

court hearing the new case would likely have at most 90 days to consider it.

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political goals means little if a party can be kept off the election ballot.” Williams, 393 U.S. at

31. Still, states may impose reasonable restrictions on ballot access to ensure that political

candidates can show a “significant modicum of support” from the public, Jenness v. Fortson,

403 U.S. 431, 442 (1971), and to avoid “election- and campaign-related disorder,” Timmons v.

Twin Cities Area New Party, 520 U.S. 351, 358 (1997). State restrictions on ballot access

therefore “are not automatically subjected to heightened scrutiny.” Blackwell, 462 F.3d at 585.

The Supreme Court articulated the contemporary standard for evaluating constitutional

challenges to a state’s election laws in Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983),

and again in Burdick v. Takushi, 504 U.S. 428, 434 (1992). First, the court must “consider the

character and magnitude of” the plaintiff’s alleged injury. Anderson, 460 U.S. at 789. Next, it

“must identify and evaluate the precise interests put forward by the State as justifications for the

burden imposed by its rule.” Id. Finally, it must assess the “legitimacy and strength of each of

those interests,” as well as the “extent to which those interests make it necessary to burden the

plaintiff’s rights.” Id.

The first step in this analysis is important. When the restrictions imposed by the state are

“severe,” they will fail unless they are narrowly tailored and advance a compelling state interest.

Burdick, 504 U.S. at 434. If, however, the regulations are minimally burdensome and

nondiscriminatory, rational-basis review applies, and the regulations will usually pass

constitutional muster if the state can identify “important regulatory interests” that they further.

Id. Of course, many regulations “fall in between these two extremes.” Obama for Am. v.

Husted, 697 F.3d 423, 429 (6th Cir. 2012). In these situations, courts engage in a flexible

analysis, weighing the burden on the plaintiffs against the state’s asserted interest and chosen

means of pursuing it. See Anderson, 460 U.S. at 789; Obama for Am., 697 F.3d at 429.

In cases predating Anderson and Burdick, the Supreme Court held that petition-signature

requirements as high as 5% are not facially invalid. Three cases are particularly relevant here.

First, in Jenness v. Fortson, the Court upheld Georgia’s ballot-access scheme requiring

independent and minor-party candidates to submit petitions meeting a 5% signature requirement

in early June. 403 U.S. at 433, 442. Three years later, the Court considered another 5%

signature requirement in Storer v. Brown, 415 U.S. 724, 726–27 (1974). Noting that the

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California laws at issue in Storer placed a substantial limitation on the collection of signatures—

in particular, a signer was not eligible if he or she had participated in another party’s primary

election—the Court vacated the judgment for the state and remanded the case to determine

whether this added hurdle made the 5% requirement unduly burdensome. Id. at 738–40. And

that same year, in American Party of Texas v. White, the Court held constitutional a 1% party-

support requirement that also imposed additional restrictions on petition circulation, including a

notarization requirement and a signature-disqualification provision similar to that in Storer.

415 U.S. 767, 777–80 (1974). These cases remain good law.2 Both the prior panel of this court

and the district court took note of this fact and concluded that, under these precedents,

Tennessee’s 2.5% requirement is not facially unconstitutional. Green Party, 700 F.3d at 820–21,

824 (quoting the district court opinion).

2. Application

Under the contemporary Anderson-Burdick framework, our first and central question is

whether the district court properly re-granted summary judgment to the plaintiffs on the basis

that Tennessee’s 2.5% signature requirement, as applied, imposed a severe burden on the

exercise of their First Amendment rights. To answer this question, we evaluate the effects of the

signature requirement on the plaintiff political parties, keeping in mind that other aspects of

Tennessee’s ballot-access scheme might operate so as to make the signature requirement either

harder or easier to meet. See Blackwell, 462 F.3d at 586. Here, these other aspects include the

new two-option system—allowing minor parties to nominate either by primary election or by

some other process of their choosing—the respective 119-day and 90-day petition deadlines, the

2

Although the plaintiffs suggest that American Party and Jenness have been abrogated by Anderson and

Burdick, the Supreme Court has continued to treat these cases as valid precedent. See, e.g., New York State Bd. of

Elections v. López Torres, 552 U.S. 196, 204 (2008) (citing both cases). We understand Anderson and Burdick to

clarify the proper analysis a court should use in evaluating an election-law claim, without calling into question the

Supreme Court’s determination that petition-signature requirements of up to 5% are not necessarily facially invalid.

Furthermore, the Court’s older precedent is consistent with Anderson and Burdick in acknowledging that the

severity of a burden significantly influences a court’s analysis. See, e.g., Am. Party of Tex., 415 U.S. at 783 (ballot-

access provision “may not be so excessive or impractical as to . . . always, or almost always, exclude parties with

significant support from the ballot”); Williams, 393 U.S. at 31 (noting that the state has “failed to show any

‘compelling interest’ which justifies imposing such heavy burdens on the right to vote and to associate”).

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timing of these two deadlines relative to major-party campaign activity, and any other

restrictions limiting the circulation of petitions and campaigning.3

Whether a voting regulation imposes a severe burden is a question with both legal and

factual dimensions. See Blackwell, 462 F.3d at 587 (listing factors to consider). If a restriction

does not “affect a political party’s ability to perform its primary functions,” such as organizing,

recruiting members, and choosing and promoting a candidate, the burden typically is not

considered severe. Id. Tennessee’s ballot-access rules strike at the very heart of the plaintiffs’

primary functions and no doubt constrain their opportunities to effect political change. But this

fact alone does not permit us to conclude that the burden is severe; we must also consider “the

effect of the regulations on the voters, the parties and the candidates” and “evidence of the real

impact the restriction has on the [political] process.” Id. The record—which was not

substantially developed upon remand—does not provide the information we would need to

affirm the grant of summary judgment to the plaintiffs.

In both of its orders granting summary judgment, the district court relied heavily on the

fact that minor parties have consistently been absent from Tennessee’s ballots. Green Party II,

953 F. Supp. 2d at 827–28, 852; Green Party I, 882 F. Supp. 2d at 1007. As the district court

discussed, Tennessee instituted a 5% petition-signature requirement in 1961, which it later

lowered to 2.5% in 1972. Although before 1961, “minor political parties appeared regularly on

the Tennessee ballot,” since 1961, only George Wallace’s American Independent Party has

qualified, on two occasions. Green Party II, 953 F. Supp. 2d at 827. We agree with the district

court that “[p]ast experience will be a helpful, if not always an unerring, guide” in evaluating the

effects of a signature requirement. Storer, 415 U.S. at 742. However, the historical record here

is less relevant than it was before the recent changes to the law because the record does not help

us evaluate whether the effective extension of Tennessee’s petition-filing deadline by four

months has eased the plaintiffs’ burden. Tennessee’s old deadline fell in mid-April, 119 days

3

We do not consider whether Tennessee’s old (but now-optional) scheme for accessing the ballot via

primary election remains unconstitutional despite the availability of a less-burdensome alternative. In their briefs

regarding attorney’s fees (Case No. 13-6280), the plaintiffs state that “neither [of the parties] have any desire to

nominate their candidates by primaries and do not expect to ever want to nominate their candidates by primaries so

long as they are classified as ‘minor parties.’” (Pls.’ Br. at 19.) Additionally, the plaintiffs’ briefs for their main

case (No. 13-5795) do not raise arguments that pertain specifically or uniquely to the 119-day deadline, but focus

mainly on attacking the 2.5% signature requirement.

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 15

before the statewide primary election and 208 days before the general election. In contrast, the

new deadline for a party choosing not to nominate by primary election falls substantially later, in

early August, one day before the primary election and 90 days before the general election.

Both the Supreme Court and this court have explained the burdens posed by petition-

filing deadlines set too early in the election year. Independent and minor-party candidates often

craft their platforms in response to mainstream candidates’ views, and they typically appeal to

voters “dissatisfied with the choices within the two major parties.” Anderson, 460 U.S. at 791;

see also Blackwell, 462 F.3d at 590–91. If these candidates are required to complete their

petitioning process many months before the general election, when the major parties’

nominations are only beginning, they are less able to position themselves as meaningful

alternatives. Moreover, they must petition for support among a public that is less engaged and

informed than it would be later in the election cycle. Anderson, 460 U.S. at 792.

Under Tennessee’s new laws, a minor party must still obtain signatures before the

primary election, but it is no longer required to complete its petitioning process months before

the general election. By setting a later deadline, Tennessee has alleviated the burden of its

ballot-access requirements to at least some extent, but we cannot say how much. The district

court concluded that “a comparison of Tennessee’s 2012 amendments and the 2011 statute

reveals little substantive change,” explaining that the new filing deadline for minor parties opting

not to participate in the state’s primary election still “operates to require collection of signatures

during the same time period preceding the August primary that caused the 120 day deadline to be

held unconstitutional in Blackwell and [that] led [the district court] to hold Tennessee’s prior

119 day deadline unconstitutional.” Green Party II, 953 F. Supp. 2d at 847–48 (citation

omitted). This reasoning, however, is based on an overly broad reading of Blackwell as

establishing that a petition deadline set before or at the same time as a state’s primary election is

necessarily unconstitutional. In fact, Blackwell struck down an Ohio ballot-access scheme

similar to Tennessee’s old regime, with a lower signature requirement of 1% but a filing deadline

set 120 days before the primary, and (because Ohio’s primaries are held early) nearly a full

year—364 days—before the general election. 462 F.3d at 582–83, 591. Blackwell does not

definitively establish that Tennessee’s current filing deadline imposes a severe burden on the

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 16

plaintiffs, either standing alone or in combination with the 2.5% signature requirement. The

change to Tennessee’s filing deadline presents factual questions that cannot be answered on the

existing record.

We therefore reverse the district court’s grant of summary judgment and remand this

claim for further factual development. We note that the current record does not support granting

summary judgment in favor of the plaintiffs, the party bearing the burden of proof, because it

does not show that there is no genuine dispute of material fact or that the plaintiffs are entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). As discussed above, the relevant legal

precedents do not prove that Tennessee’s signature requirement is itself unconstitutional, and the

record lacks the factual information we need to determine whether it actually imposes a severe

burden on the plaintiffs. We advise the district court to re-open the record on remand so that the

parties may submit evidence relevant to the effect of Tennessee’s current ballot-access scheme.4

As a final point, we agree with the district court that the defendants have not, at least at

this point, put forth compelling interests to support a signature requirement of 2.5%, rather than

something lower. The court rightly pointed out that Tennessee’s supposed interest in avoiding

“voter confusion” is undermined by its rules that liberally grant ballot access to independent

candidates. See Tenn. Code Ann. § 2-5-101(b). For example, in 2012, Tennessee’s ballot

included nine candidates for the United States Senate, five of whom were independents (and this

number would have been seven, if not for the district court’s order that the Green and

Constitution Party names appear alongside their candidates). It is a puzzling proposition that

voters should be less confused by a ballot listing numerous candidates without a party

designation than by a similar ballot including party designations; the latter, at least, contains

information helpful to distinguishing among lesser-known candidates. However, under the

4

Although the plaintiffs cannot, at this point, present evidence of their own difficulties complying with

Tennessee’s new scheme, given that it has only recently been enacted, they should nevertheless be able to develop

evidence relevant to this scheme. For example, they might survey states with ballot-access requirements similar to

Tennessee’s current ones to determine whether minor parties have had success in appearing on the ballot in those

states. They might obtain affidavits from party organizers in other states describing the difficulties that they

encounter complying with requirements similar to Tennessee’s. Their experts might be able identify meaningful

distinctions between Tennessee and other states—based on such factors as geography, population demographics, the

educational attainments of its residents, etc.—that could conceivably influence the petitioning process.

Additionally, more detailed evidence of the plaintiffs’ own past attempts to meet Tennessee’s petition-signature

requirements could also be helpful. These suggestions are not intended to limit the type of evidence that the parties

might develop on remand, but only to illustrate where they might begin.

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 17

standard for evaluating ballot-access restrictions, “the rigorousness of our inquiry . . . depends

upon the extent to which a challenged regulation burdens First and Fourteenth Amendment

rights.” Burdick, 504 U.S. at 434. Because we cannot determine, on the existing record, whether

Tennessee’s current scheme imposes a severe burden on the plaintiffs, we cannot invalidate this

scheme simply because the state’s interests are not compelling. We remand so that the district

court may reassess both the extent of the plaintiffs’ burden, and the state’s asserted interests, on a

more thoroughly developed record.

D. Tennessee’s Preferential Ballot-Ordering Statute

The defendants also challenge the district court’s conclusion that Tennessee’s ballot-

ordering statute violates the First and Fourteenth Amendments by granting favorable treatment to

established political parties. Green Party II, 953 F. Supp. 2d at 860. The district court twice

granted summary judgment in the plaintiffs’ favor on this claim. After its first grant of summary

judgment, this court reversed and remanded on the following grounds.

First, the panel noted that the plaintiffs’ challenge was facial in nature and that the

plaintiffs had not put forward evidence demonstrating that ballot position had led to voter bias in

Tennessee. Green Party, 700 F.3d at 826–27 (“[W]e have no evidentiary record against which to

assess [the plaintiffs’] assertions that voters will be confused or influenced by the position of the

names on the ballot.” (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S.

442, 455 (2008)) (internal quotation marks omitted). Second, the panel explained that Tennessee

“presumptively uses what is known as a ‘party block’ ballot form [on which] all of the

candidates for a party are listed in a single column.” Id. at 827 (internal quotation marks

omitted)).5 This format, the panel reasoned, might mitigate any bias caused by preferential party

5

Indeed, the applicable statute does seem to describe a ballot that groups candidates in vertical rows under

party headings, not office headings. Tenn. Code Ann. § 2-5-206(b)(2) reads:

In general elections, the title of the offices shall be placed vertically on the left or the right side of

the ballot, and there shall be a vertical column for each political party. Any candidate whose name

is to be placed on the ballot by virtue of party nomination shall be listed in the political column of

such candidate's party, opposite the title of the office the candidate seeks. One (1) vertical column

for independent candidates shall be placed on the ballot and shall appear immediately after the

political party columns. The independent candidates shall be listed in alphabetical order according

to the initials of their surnames, beginning with the first initial.

However, the ballots submitted by the plaintiffs do not conform to this description.

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 18

order, as hypothesized by one of the studies the district court cited. Although the plaintiffs had

submitted to the panel (and not to the district court) one ballot from one Tennessee county using

a “office block” format, the panel declined to consider this evidence “in the first instance,” and

remanded for the district court “to further develop the factual record as necessary.” Id. The

panel did not conclude that the use of office block ballots alone would be enough to render the

ballot-ordering statute unconstitutional.

After remand, the plaintiffs submitted portions of ballots for the 2012 general election

from each of Tennessee’s 95 counties. All used the office block format, despite the prior panel’s

observation that Tennessee law seemed to require a party block format. After evaluating the

record as a whole, including this new evidence, we again conclude that the district court

erroneously granted the plaintiffs summary judgment on this claim.

1. Legal Framework for Ballot-Ordering Provisions

The plaintiffs’ ballot-ordering claim presents a question of first impression in our circuit.

Cases from other jurisdictions are all over the map. Compare McLain v. Meier, 637 F.2d 1159,

1166–67 (8th Cir. 1980) (incumbent-first statute unconstitutional under even rational-basis

analysis, where clearly erroneous standard of review applied to district court’s factual

determination that placement affected voter behavior), and Gould v. Grubb, 536 P.2d 1337,

1338–39 (Cal. 1975) (similar), with Bd. of Election Comm’rs of Chi. v. Libertarian Party of Ill.,

591 F.2d 22, 25–27 (7th Cir. 1979) (two-tier system, with candidates of two major parties

appearing first and second on ballot and all other candidates following, did not violate

constitution absent showing of “intentional or purposeful discrimination”), and New Alliance

Party v. N.Y. State Bd. of Elections, 861 F. Supp. 282, 284–85, 288 (S.D.N.Y. 1994) (plaintiff

had not submitted sufficient evidence that preferential ballot ordering influences voter choice,

and judicial notice was not warranted).

Beyond disagreeing as to outcomes, courts have not settled on a particular standard for

evaluating preferential ballot-order statutes. Some courts have applied an analysis consistent

with the Anderson-Burdick framework. See McLain, 637 F.2d at 1167 (noting that the legal

standard “is anything but clear” but observing that because preferential ballot-ordering rules do

not exclude a candidate from the ballot entirely, “most courts have applied the rational basis

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 19

test”). Others have required plaintiffs to show “an intentional or purposeful discrimination”

against minor-party and independent candidates. Bd. of Election Comm’rs of Chi., 591 F.2d at

24–25. Here, the plaintiffs’ claim draws not only on the Equal Protection Clause, but also on the

First Amendment: essentially, the plaintiffs argue that they have been denied an equal

opportunity to exercise their rights to association and political expression. We therefore

conclude that this claim is most appropriately evaluated under the framework of Anderson, 460

U.S. at 788–89, and Burdick, 504 U.S. at 434. See Obama for Am., 697 F.3d at 430 (explaining

that Anderson and Burdick articulate “a single standard for evaluating challenges to voting

restrictions,” whether raised under the First or the Fourteenth Amendments).

2. Application

As the district court recognized, studies do not definitively establish whether a party’s or

candidate’s position on the ballot influences voter behavior. Green Party II, 953 F. Supp. 2d at

859–60. Some conclude that it likely does, some conclude that it may, but only to a small degree

or only in nonpartisan elections, and some conclude that it likely does not. Moreover, as the

defendants argued, some studies have concluded that the most important factor affecting voter

decision in a partisan election—like Tennessee’s general election—is party affiliation.

Ultimately, the district court chose to credit studies, as well as cases from other jurisdictions,

finding that preferential ballot-placement statutes confer a benefit on candidates listed first or at

the top of the ballot. In particular, the court explained that it was “rel[ying] upon the Eighth

Circuit’s ruling in McLain that despite differences in the studies, ‘many studies report a finding

of some ballot advantage in the top position.’” Id. at 860 (quoting 637 F.2d at 1166 n.15).

Given that this case is at the summary judgment stage, the district court erred in reaching

its conclusion on the basis of conflicting evidence and cases from other jurisdictions. Even on an

issue involving abstract legal principles, and not just everyday factual questions of the sort that

juries readily decide, a plaintiff moving for summary judgment bears the same heavy burden a

defendant does. The plaintiff must demonstrate that there is no genuine issue of material fact,

while the court must draw all reasonable inferences in favor of the non-moving party. See

Villegas, 709 F.3d at 568. The effect of preferential ballot ordering on voter behavior involves

questions of fact, see McLain, 637 F.2d at 1166, and the record here simply does not establish

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 20

that Tennessee’s ballot-ordering statute appreciably affects voter behavior. Rather, it establishes

only that there is a factual dispute as to whether ballot position sways voters, and if so, how

much. This is precisely the sort of question that cannot be resolved on summary judgment. We

therefore reverse the district court’s grant of summary judgment on this claim and remand it for

further development.

E. The District Court’s Award of Attorney’s Fees

Finally, the defendants appeal the district court’s award of attorney’s fees in the amount

of $76,768.41—an initial $61,180.91 for fees incurred in the district court before the defendants’

first appeal, and an additional $15,587.50 for fees incurred after remand. The defendants make

two arguments: first, that the district court erred in denying their motion for relief from its initial

fee award, filed shortly after this court remanded the case, and second, that the district court

erred in granting plaintiffs additional fees on remand. Essentially, the defendants argue that the

plaintiffs are not a “prevailing party” under the fee-awarding statute, 42 U.S.C. § 1988(b),

because the prior panel reversed the district court’s order granting them summary judgment. We

reject the defendants’ contention that the plaintiffs are not a prevailing party, but we vacate the

district court’s fee award and remand for recalculation.

1. Legal Framework for Awarding Attorney’s Fees

Although litigants are typically responsible for paying their own attorney’s fees,

Congress has created exceptions for certain types of cases. Under 42 U.S.C. § 1988(b), the

“prevailing party” in an action to enforce civil rights under § 1983 may recover “a reasonable

attorney’s fee as part of the costs” of litigation. See Hescott v. City of Saginaw, --- F.3d ---, 2014

WL 2959289, at *3 (6th Cir. 2014). To be considered a prevailing party, a litigant must have

“receive[d] at least some relief on the merits of his claim” amounting to “a court-ordered change

in the legal relationship between the plaintiff and the defendant.” Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603–04 (2001) (internal

quotation marks and alterations in original omitted). Thus, if a defendant voluntarily changes its

conduct during the course of litigation, thereby mooting the plaintiff’s case, the plaintiff will not

be considered a prevailing party even though he or she may have obtained the relief sought. Id.

at 605.

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 21

These basic principles still apply when a court of appeals reverses a district court’s

judgment that rendered one of the litigants a prevailing party. If the court of appeals reverses on

the merits of the underlying claims, the formerly prevailing party no longer prevails and is no

longer entitled to fees. See, e.g., Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth.,

567 F.3d 278, 301 (6th Cir. 2009). In contrast, if the reversal is not on the merits, it does not

necessarily upset the prevailing party’s status. “When plaintiffs clearly succeeded in obtaining

the relief sought before the district court and an intervening event rendered the case moot on

appeal, plaintiffs are still prevailing parties for the purposes of attorney’s fees for the district

court litigation.” Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009) (affirming fee

award to plaintiffs who obtained permanent injunction of Puerto Rico election law in district

court, but whose judgment was mooted by territory’s voluntary change to the law); see also UFO

Chuting of Haw., Inc. v. Smith, 508 F.3d 1189, 1197 (9th Cir. 2007); Roadway Express, Inc. v.

Admin. Review Bd., U.S. Dep’t of Labor, 6 F. App’x 297, 301 (6th Cir. 2001) (collecting cases).

Furthermore, a civil-rights plaintiff need not succeed on every claim in order to recover

attorney’s fees. Success on a single claim is sufficient to become a prevailing party. See

McQueary v. Conway, 614 F.3d 591, 603 (6th Cir. 2010). When, however, a plaintiff’s

unmeritorious claims are “based on different facts and different legal theories” than her

meritorious claims, a court must treat them “as if they had been raised in separate lawsuits, and

therefore no fee may be awarded for services on the unsuccessful claim[s].” Tex. State Teachers

Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989) (citing Hensley v. Eckerhart,

461 U.S. 424, 435 (1983)). In contrast, if a plaintiff has made both meritorious and

unmeritorious claims that “arise out of a common core of facts, and involve related legal

theories,” a court should not exempt from its fee award the hours spent on the claims that did not

succeed. Id. at 789. Instead, the court should consider, as its ultimate guide, “the degree of

success obtained.” Id. (quoting Hensley, 461 U.S. at 436). To determine whether two claims are

related, a court may find it helpful to consider “whether relief sought on the unsuccessful claim

is intended to remedy a course of conduct entirely distinct and separate from” that which gave

rise to the plaintiff’s successful claim. Jordan v. City of Cleveland, 464 F.3d 584, 603 (6th Cir.

2006) (internal quotation marks omitted).

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 22

An attorney who achieves “excellent results” is entitled to a full fee, regardless of

whether he or she succeeds on every related claim raised. Waldo v. Consumers Energy, Co.,

726 F.3d 802, 822 (6th Cir. 2013). However, when the plaintiff’s success is limited, the court

may “exercise [its] equitable discretion . . . to arrive at a reasonable fee award” in light of the

hours expended. Tex. State Teachers Ass’n, 489 U.S. at 789. In no case should a court reduce a

full fee award “simply by using a ratio of successful claims to claims raised.” Waldo, 726 F.3d

at 822.

This court reviews an award of attorney’s fees under the abuse of discretion standard.

Abuse of discretion occurs when the district court “relies upon clearly erroneous factual findings,

applies the law improperly, or uses an erroneous legal standard.” DiLaura v. Twp. of Ann Arbor,

471 F.3d 666, 671 (6th Cir. 2006) (internal quotation marks omitted).

2. Application

We conclude that the plaintiffs qualify as prevailing parties because the district court

initially ruled that Tennessee’s then-current ballot-access scheme—with mandatory primary

elections, a 2.5% petition-signature requirement, and a 119-day filing deadline—was

unconstitutional, and the court ordered declaratory and injunctive relief to remedy the violation.

Green Party I, 882 F. Supp. 2d at 1019–20. The plaintiffs have not been stripped of their

prevailing party status by the legislature’s decision to amend the relevant statutes two months

after the district court issued its order but before the defendants’ appeal was heard. See

Diffenderfer, 587 F.3d at 454; Roadway Express, 6 F. App’x at 301; see also DiLaura, 471 F.3d

at 671. Moreover, this court never reached the merits of Tennessee’s old ballot-access scheme

and has done nothing to disturb the original judgment of the district court.

However, the plaintiffs are not necessarily entitled to all of the fees the district court

originally awarded them. The plaintiffs’ complaint initially raised four claims against the

defendants: (1) that Tennessee’s ballot-access scheme violated their First Amendment rights,

(2) that one particular ballot-access statute was unconstitutionally vague and impermissibly

delegated legislative authority to the state’s coordinator of elections, (3) that a different statute

barring minor parties from using the names “independent” or “nonpartisan” on the ballot violated

the plaintiffs’ First Amendment rights, and (4) that Tennessee’s ballot-ordering statute was

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 23

unconstitutional. The district court granted summary judgment in the plaintiffs’ favor on all four

claims, but this court reversed summary judgment on claims (2) and (3) and did so on the merits.

Green Party, 700 F.3d at 825–26, 829.

Although the plaintiffs are prevailing parties, the district court abused its discretion by

failing to reassess its fee award after this court reversed and remanded the case, and after the

defendants filed a motion for reconsideration. We accordingly vacate the district court’s fee

award and remand for recalculation of the proper amount. In doing so, we call the district

court’s attention to claim (3), regarding minor party names, which this course reversed on the

merits and which does not pertain to ballot access. We leave it to the district court to determine

how this court’s reversal of summary judgment on this claim should affect its fee award, in

accordance with the precedent discussed above. We further note that the plaintiffs have not yet

attained prevailing-party status on claim (1), regarding ballot-access, and claim (4), regarding

ballot-ordering, in the second round of litigation following remand, and we therefore vacate its

award of $15,587.50 in post-remand fees.

III. CONCLUSION

This case involves matters of great public importance. Ballot-access laws invariably

limit—to varying degrees—the right of political parties, candidates, and voters “to associate in

the electoral arena” and thereby “enhance their political effectiveness as a group.” Anderson,

460 U.S. at 794. These regulations further threaten to diminish “diversity and competition in the

marketplace of ideas” by ossifying the two-party status quo. Id. Nevertheless, we must reverse

the district court’s order granting summary judgment to the plaintiffs. Their legal arguments

hinge on questions of fact that the record, in its current state, does not resolve.

This case is accordingly remanded to the district court for further development. On

remand, the parties should supplement the existing record with further evidence demonstrating

the effects of Tennessee’s ballot-access and ballot-ordering provisions on the plaintiff minor

parties, and with any other evidence that they and the district court deem relevant. Furthermore,

this evidence should account for the recent changes to Tennessee’s ballot-access scheme. We

caution the district court and the parties that this court will not look favorably upon any effort to

Nos. 13-5975/6280 Green Party of Tenn., et al. v. Hargett, et al. Page 24

dispose of this case at the summary judgment stage without substantial development of the

record.

We also vacate the district court’s award of attorney’s fees to the plaintiffs and remand

this issue to the district court for reassessment and recalculation consistent with this opinion.