Green Party of Tennessee v. Tre Hargett

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 15a0136p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

GREEN PARTY OF TENNESSEE; CONSTITUTION PARTY ┐

OF TENNESSEE, │

Plaintiffs-Appellees, │

│ No. 14-5435

│

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. 3:13-cv-01128—William J. Haynes, Jr., Chief District Judge.

Decided and Filed: July 2, 2015

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

_________________

COUNSEL

ON BRIEF: Janet M. Kleinfelter, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,

Nashville, Tennessee, for Appellants. Alan P. Woodruff, Arden, North Carolina, for Appellees.

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OPINION

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COLE, Chief Judge. This is another challenge to Tennessee’s statutes that provide ballot

access for minor political parties. Two minor parties—the Green Party of Tennessee and the

Constitution Party of Tennessee—brought suit challenging these statutes under the First and

1

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Fourteenth Amendments. The district court granted summary judgment to plaintiffs on all

claims. Defendants appeal the grant of summary judgment to plaintiffs.

This appeal presents four issues: (1) whether Tennessee’s ballot-access scheme for

“recognized minor parties” unconstitutionally burdens plaintiffs’ First Amendment rights;

(2) whether Tennessee’s requirements for “recognized minor parties” to retain ballot access

violate the Equal Protection Clause of the Fourteenth Amendment; (3) whether Tennessee’s

loyalty-oath requirement for “recognized minor parties” violates the Equal Protection Clause of

the Fourteenth Amendment; and (4) whether the district court properly awarded plaintiffs a 50%

fee enhancement. For the following reasons, we affirm in part and vacate in part the judgment of

the district court and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

This is another case in a series of cases challenging Tennessee’s ballot access statutes for

minor political parties. See Green Party of Tenn. v. Hargett, 767 F.3d 533 (6th Cir. 2014)

(hereinafter Green Party V); Green Party of Tenn. v. Hargett, 700 F.3d 816 (6th Cir. 2012)

(hereinafter Green Party IV); Green Party of Tenn. v. Hargett, 7 F. Supp. 3d 772 (M.D. Tenn.

2014) (hereinafter Green Party III); Green Party of Tenn. v. Hargett, 953 F. Supp. 2d 816 (M.D.

Tenn. 2013) (hereinafter Green Party II), vacated and remanded, 767 F.3d 533; Green Party of

Tenn. v. Hargett, 882 F. Supp. 2d 959 (M.D. Tenn. 2012) (hereinafter Green Party I), rev’d and

remanded, 700 F.3d 816.

A. History of Tennessee Ballot-Access Laws

Before May 23, 2011, Tennessee recognized only one type of political party on the state’s

ballot, a “statewide political party,” which was defined in the Tennessee Code as:

(A) A political party at least one (1) of whose candidates for an office to be

elected by voters of the entire state in the past four (4) calendar years has received

a number of votes equal to at least five percent (5%) of the total number of votes

cast for gubernatorial candidates in the most recent election of governor; or

(B) For one (1) year after petitioning successfully, a political party which has a

membership 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

as shown by petitions to establish a political party filed with the coordinator of

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elections and signed by registered voters as members of the party and certified as

to registration of the signers by the county election commissions of the counties

where the signers are residents.

Tenn. Code Ann. § 2-1-104(a)(30)(A) (2009) & (2010). A statewide political party was

automatically entitled to have its candidates identified on the ballot by their party affiliation.

Green Party V, 767 F.3d at 543–44. Any new party that wished to be classified as a statewide

political party had to gather the signatures of registered voters equal to or greater than 2.5% of

the total votes cast for gubernatorial candidates in the most recent gubernatorial election. Id. § 2-

1-104(a)(30)(B) (2009); see also Green Party IV, 700 F.3d at 819.

In 2011, the Tennessee General Assembly amended the ballot-access statutes to create a

new type of political party, a “recognized minor party.”

(24) “Recognized minor party” means 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

[2.5%] of the total number of votes cast for gubernatorial candidates in the most

recent election of governor . . .

Tenn. Code Ann. § 2-1-104(a)(24) (2011). In the spring of 2012, Tennessee again amended its

ballot-access statutes, requiring recognized minor parties to satisfy the requirements of a

statewide political party in order to maintain their status as a recognized minor party beyond the

current election year:

(f) If a petition filed pursuant to this section is determined to be sufficient by the

coordinator of elections . . . , such party shall be recognized as a minor party for

all remaining primary and general elections in the current year. To maintain

recognition beyond the current election year, a minor party must meet the

requirements of a statewide political party as defined in § 2-1-104. A recognized

minor party who fails to meet such requirements shall cease to be a recognized

minor party. Such party may regain recognition only by following the procedures

for formation of a recognized minor party . . . .

Tenn. Code Ann. § 2-13-107(f) (2012).

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B. Tennessee’s Current Ballot-Access Laws

Under Tennessee’s current system, political parties can obtain ballot access either as a

statewide political party or a recognized minor party. “Statewide political party” is defined as

a political party at least one (1) of whose candidates for an office to be elected by

voters of the entire state in the past four (4) calendar years has received a number

of votes equal to at least five percent (5%) of the total number of votes cast for

gubernatorial candidates in the most recent election of governor.

Tenn. Code. Ann. § 2-1-104(a)(30) (2014). Once a party qualifies as a statewide political party,

it is automatically placed on the ballot each succeeding year for four years. Id.

For a minor party to be placed on the ballot, it must qualify as a recognized minor party

by obtaining the signatures of registered voters equal to or greater than 2.5% of the total number

of votes cast for gubernatorial candidates in the last gubernatorial election. Id. § 2-1-104(a)(23)

(“the ballot-access statute”). Additionally, “no political party may have nominees on a ballot or

exercise any of the rights of political parties . . . until its officers have filed on its behalf with the

secretary of state and with the coordinator of elections” an affidavit under oath stating that it

does not advocate the overthrow of the government by force or violence and is not affiliated with

any organization that advocates such a policy. Id. § 2-1-114 (2014).

To maintain its status as a recognized minor party, at least one of the recognized minor

party’s candidates for statewide office must receive votes totaling at least 5% of the total number

of votes cast for gubernatorial candidates in the last gubernatorial election. Id. § 2-13-107(f)

(2014) (“the ballot-retention statute”). If none of the minor party’s candidates meets that

threshold, it has to re-qualify as a recognized minor party to regain access to the ballot. Id.

C. Procedural History

As a result of prior litigation, plaintiffs’ candidates were on the 2012 ballot (a non-

gubernatorial election year) with their parties’ respective names. Green Party I, 882 F. Supp. 2d

at 1019. However, plaintiffs’ candidates did not receive enough votes for plaintiffs to maintain

their recognized minor party status by qualifying as a statewide political party and lost their

continued ballot access in future elections. In order to regain access to the ballot, plaintiffs must

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 5

again collect the signatures of registered voters equal to or greater than 2.5% of the total number

of votes cast for governor in the last gubernatorial election.

As a result of losing their status as recognized minor parties, plaintiffs filed this lawsuit

on October 10, 2013, challenging various sections of the Tennessee Code. Plaintiffs brought

several claims: (1) that the ballot-access statute, Section 2-1-104(a)(23),1 and the ballot-retention

statute, Section 2-13-107(f), jointly impose an unconstitutional burden on minor parties seeking

status as recognized minor parties in violation of the First Amendment; (2) that the ballot-

retention statute violates the Equal Protection Clause of the Fourteenth Amendment by requiring

recognized minor parties to meet the 5% requirement in one year, but allowing statewide

political parties to meet the same requirement in four years; and (3) that Section 2-1-114 violated

their rights under the First and Fourteenth Amendments by requiring a minor or new political

party to file an affidavit stating that the party does not advocate the overthrow of local, state, or

national government by force or violence before its nominees are placed on the ballot.

The parties filed cross-motions for summary judgment, and on March 14, 2014, the

district court held that the challenged sections of the Tennessee Code were unconstitutional and

enjoined the defendants from enforcing them. The district court held that the ballot-access and

ballot-retention statutes, alone and in combination, unduly burdened plaintiffs’ rights under the

First and Fourteenth Amendments to create and develop their political party by securing ballot

access for their candidates. The district court further concluded that the ballot-retention statute

violated plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment by

denying plaintiffs the same four calendar years afforded to statewide political parties to secure

automatic ballot access for their candidates. Finally, the district court concluded that based on

longstanding Supreme Court precedent, Section 2-1-114 violated plaintiffs’ First Amendment

rights to free speech. Green Party III, 7 F. Supp. 3d at 791.

On March 21, 2014, plaintiffs filed a motion for an award of attorney’s fees. The district

court entered an order reducing counsel’s hours by one-fifth, but increasing the award by 50%

because of “the necessity of [repeated] challenges to the 2.5% ballot access requirement.” Green

1

In their complaint, plaintiffs refer to Tennessee Code Annotated § 2-1-104(a)(24) (2011). The current

version is Tennessee Code Annotated § 2-1-104(a)(23) (2014). The statutes are identical.

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 6

Party of Tenn. v. Hargett, No. 3:13-1128, 2014 WL 1404900, at *2 (M.D. Tenn. Apr. 10, 2014)

(hereinafter Green Party Attorney’s Fees).

Defendants appealed both the district court’s order on the merits as well as its award of

attorney’s fees.

II. ANALYSIS

A. Standard of Review

This court reviews a district court’s grant of summary judgment de novo. Green Party V,

767 F.3d at 542. 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, 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.

B. Recognized Minor Party Ballot Access

1. Facial vs. As-Applied Challenge

As a threshold issue, defendants argue that the district court erred in treating the

plaintiffs’ facial challenge as an as-applied challenge. In response, plaintiffs argue that they did

assert an as-applied claim.

A plaintiff can challenge the constitutionality of a statute in two ways. “A facial

challenge to a law’s constitutionality is an effort to invalidate the law in each of its applications,

to take the law off the books completely.” Speet v. Schuette, 726 F.3d 867, 871 (6th Cir. 2013)

(internal quotation marks omitted). The plaintiff must establish “‘that no set of circumstances

exist under which [the statute] would be valid.’” Id. at 872 (quoting United States v. Stevens,

559 U.S. 460, 472 (2010)). In contrast, an as-applied challenge “argues that a law is

unconstitutional as enforced against the plaintiffs before the court.” Speet, 726 F.3d at 872.

“[T]he distinction between facial and as-applied challenges is not so well defined that it has

some automatic effect or that it must always control the pleadings and disposition in every case

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involving a constitutional challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310,

331 (2010). In fact, a claim can have characteristics of as-applied and facial challenges: it can

challenge more than just the plaintiff’s particular case without seeking to strike the law in all its

applications. John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). In constitutional challenges

reaching beyond the plaintiff’s circumstances, the plaintiff must satisfy the “standards for a facial

challenge to the extent of that reach.” Id.

Plaintiffs’ complaint states the challenged Tennessee statutes impose a “severe burden on

Plaintiffs and similarly situated ‘[r]ecognized minor parties’” and asks the court to declare the

ballot-access and ballot-retention statutes unconstitutional. (Complaint, R. 1, PageID 4.) By

their own terms, these statutes apply only to recognized minor parties. Invalidating the statutes

for recognized minor parties would strip the statutes of each and every application they have. By

challenging the statutes as applied to recognized minor parties, the plaintiffs have in effect

asserted a facial challenge. If even one set of circumstances exists in which the state can

constitutionally apply the statutes to recognized minor parties, plaintiffs’ claim fails.

2. Equal Protection Clause

Defendants argue that the district court erred in finding that the retention statute violates

the Equal Protection Clause by treating statewide political parties differently from recognized

minor parties in that recognized minor parties are allowed only one election year to meet the

threshold for a statewide political party, whereas statewide political parties retain their status for

four years regardless of the election results and have four calendar years to meet the same

statutory requirement.

“The Equal Protection Clause provides that ‘all persons similarly situated should be

treated alike.’” Cutshall v. Sundquist, 193 F.3d 466, 482 (6th Cir. 1999) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). The Supreme Court has developed

a three-part test to evaluate election statutes challenged under the First and Fourteenth

Amendments. See Burdick v. Takushi, 504 U.S. 428, 434, 441 (1992); Anderson v. Celebrezze,

460 U.S. 780, 788–89 (1983). While the Supreme Court has not yet applied this test to ballot-

access challenges on pure equal-protection grounds, our cases hold that the Anderson-Burdick

test serves as “a single standard for evaluating challenges to voting restrictions.” Obama for Am.

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v. Husted, 697 F.3d 423, 430 (6th Cir. 2012). Further, many federal courts of appeals have

applied the Anderson-Burdick balancing test to both First Amendment and Equal Protection

Clause challenges to ballot-access laws. See e.g., Rogers v. Corbett, 468 F.3d 188, 193–94 (3d

Cir. 2006) (abandoning traditional tiers of equal-protection scrutiny and applying Anderson);

Republican Party of Ark. v. Faulkner Cnty., Ark., 49 F.3d 1289, 1293 n.2 (8th Cir. 1995) (“In

election cases, equal protection challenges essentially constitute a branch of the associational

rights tree.”); Fulani v. Krivanek, 973 F.2d 1539, 1543 (11th Cir. 1992) (applying the Anderson

balancing test).

In Green Party V, we decided to apply the framework of Anderson-Burdick to a ballot-

ordering equal-protection claim because “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.” 767 F.3d at 551. This case is markedly similar: the plaintiffs argue that the ballot-

retention statute denies them an equal opportunity to exercise their rights to association and

political expression. Once again, we apply the Anderson-Burdick test.

Under the Anderson-Burdick test, the court must first “consider the character and

magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments

that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789. Second, 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 “determine the legitimacy and strength of each of those interests”

and “consider the extent to which those interests make it necessary to burden the plaintiff’s

rights.” Id.

When the burden on the right to vote is “severe,” the statute will be subject to strict

scrutiny and must be narrowly tailored and advance a compelling state interest. Burdick,

504 U.S. at 434. If the burden is “reasonable” and “nondiscriminatory,” the statute will be

subject to rational basis and survive if the state can identify “important regulatory interests” to

justify it. See id. If the burden lies somewhere in between, courts will “weigh[] the burden on

the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Green Party

V, 767 F.3d at 546.

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We start by determining the burden placed on recognized minor parties. Section 2-13-

107(f) requires recognized minor parties to obtain 5% of the total number of votes cast for

governor in the last gubernatorial election to retain ballot access beyond the current election

year. In contrast, statewide political parties are given four years to obtain the same level of

electoral success. Tenn. Code Ann. § 2-1-104(a)(30). For instance, in a non-gubernatorial

election, a recognized minor party and a statewide political party might each receive 3% of the

votes cast for gubernatorial candidates in the gubernatorial election held two years prior. The

recognized minor party would lose ballot access because it did not receive the 5% retention

percentage. See Tenn. Code Ann. § 2-13-107(f). The statewide political party, in contrast,

would retain ballot access because, by definition, it received at least 5% of the total votes cast for

gubernatorial candidates in the most recent gubernatorial election. See Tenn. Code Ann. § 2-1-

104(a)(30).

Defendants argue that statewide political parties are subject to the same one-year

limitation to obtain 5% of the votes cast for gubernatorial candidates as recognized minor parties.

In support, they rely on MacBride v. Hassler, in which the Tennessee Supreme Court stated that

in order for a statewide political party to continue its ballot access it must “receive at least five

per cent (5%) of the total number of votes cast for gubernatorial candidates in the last preceding

general election.” 541 S.W.2d 591, 593 (Tenn. 1976) (emphasis added).2

Federal courts generally defer to a state supreme court’s interpretation of the state’s own

statutes. See Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 76 (2000). However, this

single passage from MacBride does not stand for the proposition that statewide political parties

are subject to the same statutory limitation as recognized minor parties. Earlier in the same

opinion, the Tennessee Supreme Court defines a statewide political party as a “political party at

least one of whose candidates for an office to be elected by voters of the entire state in the past

four (4) calendar years has received a number of votes equal to at least five per cent (5%) of the

total number of votes cast for gubernatorial candidates in the most recent election of governor.”

MacBride, 541 S.W.2d at 593 (quoting Tenn. Code Ann. § 2-1-104(27)) (emphasis added).

2

The Tennessee Supreme Court was construing the provisions of Tennessee Code Annotated § 2-104(27),

which is now Tennessee Code Annotated § 2-1-104(a)(30). The language is identical.

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 10

Taken together, it is clear that the Tennessee Supreme Court did not intend to interpret the word

“four” to mean “one.”

Next, we must decide the severity of the burden imposed. Because recognized minor

parties must obtain 5% of the total number of votes cast for gubernatorial candidates in the last

gubernatorial election to retain ballot access, we conclude that this burden is severe considering

that established major parties, which have more institutional knowledge and financial resources,

are given four years to obtain the same level of electoral success. Supporting the restrictive

nature of this law is the fact that Tennessee amended the ballot-retention statute immediately

after the district court ordered it to include plaintiffs’ candidates on the 2012 general-election

ballot. See Williams, 393 U.S. at 30 (concluding that courts “must consider the facts and

circumstances behind the law.”).

Even if we assume the burden is not severe, it is not justified by a sufficiently weighty

state interest. Defendants argue that the burden is justified because statewide political parties are

different from recognized minor parties and these differences justify the state’s imposition of

different burdens on them. Defendants are correct that the Supreme Court has recognized that

different burdens may be justified by differences in the types of parties at issue:

The fact is that there are obvious differences in kind between the needs and

potentials of a political party with historically established broad support, on the

one hand, and a new or small political organization on the other. . . . Sometimes

the grossest discrimination can lie in treating things that are different as though

they were exactly alike . . .

Jenness, 403 U.S. at 441–42. If anything, here, the differences between these two types of

parties justify having less onerous burdens on recognized minor parties than statewide political

parties. In Jenness, the Supreme Court rejected the plaintiffs’ equal protection claim because

Georgia made “available . . . two alternative paths, neither of which can be assumed to be

inherently more burdensome than the other.” 403 U.S. at 441. In other words, the Supreme

Court rejected the plaintiffs’ claim because the plaintiffs did not establish that the state imposed

heavier burdens on minor parties. In contrast, Tennessee’s ballot-retention statute clearly

imposes a heavier burden on minor parties than major parties by giving minor parties less time to

obtain the same level of electoral success as established parties.

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 11

Defendants note that other states enforce two-tiered election statutes, and courts

consistently reject constitutional challenges to such statutes. (Appellant Br. at 18 n.4.) In these

systems, minor political parties must meet or exceed a low vote percentage to access the ballot

and then a higher vote percentage to retain ballot access in future elections. See, e.g., Okla. Stat.

Ann. §§ 1-108, 1-109 (five-percent signature requirement for ballot access and ten-percent vote

requirement for ballot retention). Some states, like Tennessee, require minor political parties to

meet the vote percentage for ballot retention in the first general election after they pass the

ballot-access threshold. See, e.g., Tenn. Code Ann. 2-13-107(f); Or. Rev. Stat. Ann. §

248.008(4)(b)(A). And in some states, minor and major political parties must obtain the same

vote percentage for ballot retention. See, e.g., R.I. Gen. Laws § 17-1-2(9) (major and minor

parties must receive five percent of the votes cast in most recent presidential or gubernatorial

election to remain on ballot). But only Tennessee’s access-retention system forces minor

political parties to attain the same vote percentage as major political parties in less time.

Because this statute imposes a greater burden on minor parties without a sufficient

rationale put forth by the state, it violates the Equal Protection Clause. It impermissibly “freezes

the status quo” and does not allow “a real and essentially equal opportunity for ballot

qualification.” Am. Party of Tex. v. White, 415 U.S. 767, 787–88 (1974). Accordingly, we

affirm the grant of summary judgment to plaintiffs on their equal-protection claim.

3. First Amendment

Plaintiffs argue that the ballot-access and ballot-retention statutes, alone and in

combination, unduly burden their rights under the First Amendment to create and develop their

political parties by securing ballot access for their candidates. Because we find that the ballot-

retention statute is facially unconstitutional under the Equal Protection Clause, we need not

decide whether it also violates the First Amendment. Further, we decline to determine whether

the ballot-access statute unduly burdens plaintiffs’ associational rights, a question now before the

district court following our remand in Green Party V. We accordingly vacate the district court’s

grant of summary judgment on plaintiffs’ First Amendment challenge to Sections 2-1-104(a)(23)

and 2-13-107(f), the access and retention statutes.

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 12

C. Loyalty Oath Affidavits

1. Standing

As a preliminary matter, defendants argue that plaintiffs lack standing to challenge the

constitutionality of Tennessee Code Annotated § 2-1-114 because they cannot show an injury in

fact. Under Article III of the United States Constitution, the federal judicial power extends only

to “Cases” or “Controversies.” U.S. Const. art. III. “The doctrine of standing gives meaning to

these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved

through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish Article III

standing, plaintiffs must show (1) an “injury in fact,” (2) a “causal connection between the injury

and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a

favorable decision.” Lujan, 504 U.S. at 560–61 (internal quotation marks omitted).

Defendants contend that plaintiffs have not demonstrated an injury in fact because there

is no evidence that the statute has been, or would be, enforced. The injury in fact requirement

ensures that the plaintiffs have a “personal stake in the outcome of the controversy.” Susan B.

Anthony List, 134 S. Ct. at 2341 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To be

sufficient, the injury must be “concrete and particularized” and “actual and imminent” rather

than “conjectural” or “hypothetical.” Id. A threatened injury can qualify as an injury in fact if

the threatened injury is “certainly impending.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,

1147 (2013).

Plaintiffs have sufficiently established that they suffered an injury due to the Tennessee

statute. While defendants have not enforced or threatened to enforce this statute against

plaintiffs or any other political party, they also have not explicitly disavowed enforcing it in the

future. In such situations, the Supreme Court has held that plaintiffs have standing to challenge

statutes. See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979) (holding

that fear of prosecution was not imaginary or speculative where “the State has not disavowed any

intention of invoking the criminal penalty provision”); see also Platt v. Bd. of Comm’rs on

Grievances & Discipline of Ohio Sup. Ct., 769 F.3d 447, 452 (6th Cir. 2014) (holding that

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 13

plaintiff had standing where state refused to disavow the enforcement of the statute as applied to

plaintiff). We do the same here and find that plaintiffs have constitutional standing.

2. Merits

Plaintiffs argue that Section 2-1-114 unconstitutionally impairs their free speech rights by

requiring a minor or new political party to file an affidavit stating that the party does not

advocate the overthrow of local, state, or national government by force or violence before its

nominees are placed on the ballot. The Supreme Court in Communist Party of Indiana v.

Whitcomb struck down a nearly identical statute, holding that loyalty oaths are unconstitutional

and violate the First Amendment. 414 U.S. 441, 446 (1974). The Court stated: “the

constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe

advocacy of the use of force or of law violation except where such advocacy is directed to

inciting or producing imminent lawless action and is likely to incite or produce such action.” Id.

at 448 (internal quotation marks omitted). Similarly, we conclude that Section 2-1-114(1)

violates plaintiffs’ First Amendment right to free speech.

We note that the district court held the entirety of Tennessee Code Annotated § 2-1-114

unconstitutional. However, Tennessee Code Annotated § 2-1-114(2) simply requires a party’s

rules of operation to be filed with the Tennessee Secretary of State and is unrelated to the loyalty

oath requirement. We therefore affirm the district court’s grant of summary judgment as to

Section 2-1-114(1) but reverse the grant of summary judgment as to Section 2-1-114(2)’s filing

requirement.

D. Attorney’s Fees

Finally, defendants challenge the district court’s order enhancing the plaintiffs’ attorney’s

fees by 50% due to “the necessity of [repeated] challenges to the 2.5% ballot access

requirement.” Green Party Attorney’s Fees, 2014 WL 1404900, at *2.

We review fee awards under an abuse of discretion standard. Paschal v. Flagstar Bank,

297 F.3d 431, 433 (6th Cir. 2002). “Abuse of discretion is defined as a definite and firm

conviction that the trial court committed a clear error of judgment.” Id. at 433–34 (internal

quotation marks omitted).

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 14

“The general rule in our legal system is that each party must pay its own attorney’s fees

and expenses.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010). However, Congress

enacted 42 U.S.C. § 1988 to ensure that “federal rights are adequately enforced.” Id. Under

42 U.S.C. § 1988(b), a district court, “[i]n any action or proceeding to enforce a provision of

[section 1983] . . . , in its discretion, may allow the prevailing party, other than the United States,

a reasonable attorney’s fee as part of the costs.” To qualify as 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, 604 (2001)

(emphasis added). As a corollary, if a defendant voluntarily changes its behavior, the plaintiff

will not be considered a prevailing party even if the plaintiff received the relief sought. Id. at

605. These principles still apply “when a court of appeals reverses a district court’s judgment

that rendered one of the litigants a prevailing party.” Green Party II, 767 F.3d at 552. If the

court of appeals reverses on the merits, the formerly prevailing party is no longer entitled to fees.

Id. However, if the reversal is not on the merits, “it does not necessarily upset the prevailing

party’s status.” Id.

A civil rights plaintiff need not succeed on every claim to recover attorney’s fees; success

on one claim can be sufficient. Id. If 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].’” Id. at 552–53 (alteration in original) (quoting Tex. State Teachers Ass’n

v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989)). In contrast, if a plaintiff’s

unmeritorious and meritorious claims “‘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 553 (quoting Tex. State Teachers Ass’n, 489 U.S. at 789). To determine

if two claims are related, a court considers “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).

No. 14-5435 Green Party of Tenn., et al. v. Hargett, et al. Page 15

Plaintiffs qualify as prevailing parties. The district court initially held Tennessee’s

ballot-access scheme unconstitutional and granted declaratory and injunctive relief. On appeal,

we affirmed the district court decision that Section 2-13-107(f), the retention statute, violates the

Equal Protection Clause and that Section 2-1-114(1), the loyalty-oath statute, violates the First

Amendment right to free speech.

Since we have determined that plaintiffs are prevailing parties, we must also determine if

the district court’s fee award was an abuse of discretion. First, the fact that plaintiffs have not

yet succeeded on their First Amendment challenge to the ballot-access and ballot-retention

statutes does not mean that the district court must reduce the fee amount because this claim

“ar[o]se out of a common core of facts, and involve[d] related legal theories” as the plaintiffs’

other two successful claims. Tex. State Teachers Ass’n, 489 U.S. at 789. Second, it was well

within the district court’s authority to order a fee enhancement based on a party’s repeated

efforts to circumvent its ruling. Perdue, 559 U.S. at 555 (“[A]n enhancement may be

appropriate if the attorney’s performance includes an extraordinary outlay of expenses and the

litigation is exceptionally protracted.”). Therefore, the district court did not abuse its discretion

by awarding plaintiffs a 50% fee enhancement.

III. CONCLUSION

For the foregoing reasons, we affirm in part and vacate in part. We affirm the district

court’s grant of summary judgment on plaintiffs’ equal-protection challenge to the ballot-

retention statute, Section 2-13-107(f), and plaintiffs’ First Amendment challenge to the loyalty-

oath statute, Section 2-1-114(1). We also affirm the district court’s 50% fee enhancement. We

vacate the district court’s grant of summary judgment on plaintiffs’ First Amendment challenge

to Sections 2-1-104(a)(23) and 2-13-107(f), the ballot-access and ballot-retention statutes.