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Libertarian National Committee, Inc. v. Holiday

United States Court of Appeals, Sixth Circuit

November 2, 2018

Libertarian National Committee, Inc.; The Libertarian Party of Kentucky; David Patterson, Plaintiffs-Appellants,
v.
Terry Holiday, et al., Defendants-Appellees.

          Argued: July 25, 2018

          Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. No. 3:14-cv-00063-Gregory F. Van Tatenhove, District Judge.

         ARGUED:

          Christopher D. Wiest, CHRIS WIEST, ATTORNEY AT LAW, LLC, Cincinnati, Ohio, for Appellants. Christopher W. Brooker, WYATT, TARRANT & COMBS, LLP, Louisville, Kentucky, for Appellees.

         ON BRIEF:

          Thomas B. Bruns, Cincinnati, Ohio, Robert A. Winter, Jr., Fort Mitchell, Kentucky, for Appellants. Christopher W. Brooker, Deborah H. Patterson, Sean G. Williamson, WYATT, TARRANT & COMBS, LLP, Louisville, Kentucky, for Appellees.

          Before: BATCHELDER, KETHLEDGE, and WHITE, Circuit Judges.

          OPINION

          KETHLEDGE, Circuit Judge.

         In October 2014, Kentucky Educational Television (KET) hosted a debate between the candidates for one of Kentucky's seats in the U.S. Senate. KET thought it would best serve viewers by giving airtime only to candidates capable of winning the seat. It therefore limited the debate to candidates who met certain minimal criteria-including, among others, that at least 1 in 10 Kentuckians actually planned to vote for them. Those criteria excluded David Patterson, the candidate for the Libertarian Party of Kentucky. Patterson and the Party thereafter challenged the criteria as unconstitutional. The district court rejected their claims. So do we.

         I.

         A.

         KET is run by the Kentucky Authority for Educational Television, a state agency. Since 1975, KET has televised debates between the candidates in various state and federal elections. Specifically, it invites candidates to discuss their views in an interview format on the program Kentucky Tonight.

         Until 2014, KET invited any candidate who was legally qualified to appear on the ballot. That was a low bar-Republican and Democratic candidates need only two signatures to qualify for the primary ballot-so KET has over the years invited some decidedly nonviable candidates to its debates. In 2012, for example, KET invited a congressional candidate whose sole campaign activity (other than collecting the necessary signatures) was to appear on Kentucky Tonight. And though the election for another House seat that year came down to a close race between two candidates, KET also invited a third candidate, who ultimately won only 2.8% of the vote.

         In 2014, Senator Mitch McConnell was up for reelection. KET decided early that year to limit its debates for that seat to candidates who had a viable chance of winning. The goal, as KET officials said in emails and later in depositions, was to improve the debates for viewers. KET first developed criteria for the debates between candidates during the Republican and Democratic primaries. To meet those ...


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