MEMORANDUM

WILLIAM J. HAYNES, Jr., District Judge.

Plaintiffs, Green Party of Tennessee ("GPT"), and Constitution Party of Tennessee ("CPT"), filed this action under 42 U.S.C. § 1983 against the Defendants: Tre Hargett, Tennessee Secretary of State, and Mark Goins, Tennessee's Coordinator of Elections. Plaintiffs are political parties seeking recognition and ballot access for their candidates in federal and state elections. The gravamen of Plaintiffs' complaint is that certain provisions of Tennessee's recently enacted ballot access statutes effectively exclude minor political parties from achieving recognition as a political party and ballot access for their candidates in violation of their First Amendment rights to vote, to express their political speech and to associate as a political party. Plaintiffs also assert a claim under the Equal Protection Clause of the Fourteenth Amendment for the State's preferential placement of certain party's candidates on the ballot.

Plaintiffs' specific claims are: (1) that Tenn. Code Ann. §§ 2-5-101(a), 2-1-104 (a)(24) and 2-3-107(a) effectively deny Plaintiffs the ability to qualify as a "Recognized minor party" and impose impermissible burdens on Plaintiffs' First Amendment right to associate as a political party; (2) that Tenn. Code Ann. § 2-1-104(a)(24)'s requirements for a "Recognized minor party" are unconstitutionally vague and constitute an improper delegation of undefined legislative authority to State election officials; (3) that Tenn. Code Ann. § 2-5-101(a)(1) setting a 119 day deadline for minor political parties' petitions for ballot access for its candidates, approximately four months prior to the primary, is unconstitutional as a matter of law; (4) that Tenn. Code Ann. § 2-13-202, requiring minority political parties to nominate their candidates for statewide offices by primary elections, intrudes upon Plaintiffs' First Amendment right to select their nominees and to control their internal affairs; and (5) that Tenn. Code Ann. § 2-5-208(d)(1), awarding a preferential position on the ballot to the current majority party, discriminates against Plaintiffs in violation of the Equal Protection Clause of the Fourteenth Amendment.

This action is a sequel to an earlier action, Libertarian Party of Tennessee v. Goins, 793 F.Supp.2d 1064 (M.D. Tenn. 2010), holding that Tenn. Code Ann. § 2-1-104(a)(30) violates Plaintiffs' First Amendment right to vote, Tennessee voters' First Amendment right to privacy of their political affiliation, and Plaintiffs' First Amendment right to associate as a political party. The Court concluded that Plaintiffs demonstrated that Tennessee's 2.5% requirement in Section 2-1-104(a)(29), coupled with the party membership requirement in Section 2-1-104(a)(30) and the State's election officials' 1201 day deadline prior to the August primaries for petitions of new political parties, effectively precluded minor political party participation in state and national elections in Tennessee.2 The Defendants did not appeal that decision, but the Tennessee General Assembly enacted changes to the State's ballot access laws that are at issue in this action.

In earlier proceedings, Plaintiffs moved for summary judgment on their claims supported by their expert's report to which the Defendants filed their response and Plaintiffs filed a reply. In a Memorandum, the Court granted the Plaintiffs' motion for summary judgment, concluding:

(Docket Entry No.45, Memorandum at 88-89)

Given the prior litigation and the timing of events, the Court enjoined the Defendants from enforcing any deadline for parties' or their nominees' petition for ballot access in excess of sixty (60) days prior to the August primary . Based upon the facts in this and the prior litigation and applicable case law, the Court found that Plaintiffs had acquired the requisite number of signatures to be awarded status as "recognized political parties" and directed that their parties' names be placed next to their candidates on the general election ballot. The Court directed the Defendants to conduct a public random drawing for the order of placement of the political parties' candidates' names on the general election ballot. The Court also enjoined the Defendants from enforcement of Tenn. Code Ann. § 2-13-202, requiring Plaintiffs to select their nominees by primary, Tenn. Code Ann. § 2-5-208(d)(1), awarding ballot preference to the majority party, and Tenn. Code Ann. § 2-13-107(d), prohibiting the use of "Independent or Nonpartisan" in a political party's name. Finally, the Defendants were ordered to revise the "Nomination Petition" form and Tenn. Code Ann. § 2-5-102(a), to delete the reference that the signatory is a member of the party.

Before the Court is the Defendants' motion for a partial stay (Docket Entry No. 57) seeking relief only from the placement of the Plaintiffs' party names next to their candidates on the November 2012 general election ballot and the requirement of a public random drawing for the place of political parties' candidates' names on the November 2012 general election ballot. Although Defendants' motion for a stay is limited in its relief, the Defendants' motion discusses other aspects of the Court's ruling as erroneous as a matter of law and/or fact. The Defendants contend in sum: (1) that random drawing for placement is contrary to Sixth Circuit precedent and fails for the lack of a factual showing of prejudice because Tennessee law requires a "party block ballot"; (2) that Plaintiffs made only a facial challenge to Tennessee ballot access laws and precedents do not recognize the right of any minor political party ballot access absent a showing of adequate community support or recognition; (3) that the Court's ruling erroneously stated that Tennessee law requires a primary election for Presidential candidates; (4) that the Court failed to distinguish between Tennessee law on political parties' Presidential candidates and other State offices; and (5) the Court's Order will result in voter confusion, clogged election ballots and political instability. Given this motion for a stay in an election year, the Court expedites its ruling on this motion as it did on the Plaintiffs' motion for summary judgment.

To award a stay, the Court must consider the movant's likelihood of success on appeal, the presence of irreparable injury, any harm to others by entry of a stay and the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

As to the Order on the random drawing for ballot placement, Plaintiffs asserted a claim under the Equal Protection Clause of the Fourteenth Amendment that Tenn. Code Ann. § 2-5-208(d)(1), awarding a preferential position on the ballot to the current majority party, impermissibly discriminates against Plaintiffs and their candidates. The Court concluded that this claim warranted relief, citing Rosen v. Brown, 970 F.2d. 169 (6th Cir. 1992) and the Eighth Circuit's decision in McClain v. Meier, 637 F.2d 1159, 1166-68 (8th Cir. 1980) (holding "incumbent first" on election ballot statute unconstitutional), as well as decisions of federal and state courts, contemporary empirical studies on ballot placement and the historical evidence on minor parties in Tennessee. In sum, the Court concluded that:

(Docket Entry No.45, Memorandum at 82)

For relief from the Order on this claim, the Defendants first cite Tenn. Code Ann. § 2-5-206 as requiring a "party block" ballot in which an election ballot lists the offices and then in parallel vertical lines the candidates for each office by party. The Defendants argue that the "party ballot" under Tennessee law undermines the Court's citation to a contemporary report of empirical studies of prejudice in ballot placement that focused on "block ballots" that are ballots listing an office and all candidates for that office in a block, not "party ballots". (Docket Entry No. 57 at 5-6). In addition, Defendants argue that Rosen did not involve ballot placement and Schrader v. Blackwell, 241 F.3d 783 (6th Cir. 2001) supports the Defendants' denial of ballot access to unqualified political parties, such as Plaintiffs.

First as to Tennessee's "party block" ballot and statute, Tenn. Code Ann. § 2-5-206 reads, in relevant part, as follows:

(emphasis added). This statute was last amended in 2000. Tenn. Pub. Acts. Ch. 756. In 2010, Tennessee enacted Tenn. Code Ann. § 2-5-208(d)(1) that provides, in pertinent part, "Notwithstanding any other provision of this chapter or this title, on general election ballots, the name of each political party having nominees on the ballot shall be listed in the following order: majority party, minority party, and recognized minor party, if any." (emphasis added)

First, the underscored language in Section 2-5-206 reflects statutory exceptions to the "party block" ballot. In Tennessee's most populous counties, as reflected by the attached sample ballots forms from Shelby and Davidson County for the 2008 Presidential election and 2010 gubernatorial election, Tennessee election ballots are "block ballots", not "party block" ballots. Second, by its plain language, Section 2-5-208(d)(1) that was enacted in 2010 is unequivocal in that "notwithstanding any other statute", its provisions on preferential ballot placement control. Thus, under rules of statutory construction, the latter statute on the same subject is controlling. See Planned Parenthood of Nashville v. McWherter, 817 S.W,2d 13, 15 (1991). As a matter of fact, § 2-5-208(d)(1) authorizes "block ballots" and the major voting counties use "block ballots". Thus, the one empirical study challenged by the Defendants remains probative on the issue of prejudice from preferential ballot position.

Of course, Rosen's conclusion was that prejudice exists from favorable ballot placement and that holding is binding on the Court. To the extent, that Rosen is deemed a factual finding of prejudice, this Court and other courts cite relevant empirical studies finding prejudice where a political party is awarded a preferential place on the election ballot . Here the Court cited Joanne M. Miller & Jon A. Krosnick, "The Impact of Candidate Name Order on Election Outcomes", 62 Pub. Opinion Q., Vol. 62 No.3, 291, 293-94, 308-09 (1998) and Laura Miller, "Election by Lottery: Ballot Order, Equal Protection, and the Irrational Voter", 13 N.Y.U. J. Legis. & Pub. Pol'y 373, 405 (2010) (collecting empirical social science studies). As the latter article concludes:"Substantial empirical evidence points to the conclusion that ballot order effects, particularly in relatively low salience elections, are both statistically significant and large enough in magnitude to alter the outcomes of elections." Id.

In this regard, Defendants ignore the Court's reliance on the Eighth Circuit's decision in McClain that collects state and federal courts decisions holding that preference ballot placement for incumbents to be unconstitutional. 637 F.2d at 1166-68 . Despite some courts' and studies' contrary views about the advantage of preferential ballot placement, the Eighth Circuit noted: "On the other hand, many studies report a finding of some ballot advantage in the top position" Id. at 1166 n.15. (citations omitted).

Moreover, the "authoritative study" on this subject is by Henry M. Bain & Donald S. Hecock, "Ballot Position and Voter Choice: The Arrangement of Names on the Ballot and its Effects on the Voter" (1957) that found political advantage in preferential ballot placement. See New Alliance Party v. New York State Bd. Of Elections, 861 F.Supp. 282, 288 (S. D. N. Y. 1994). In 1994, the New Alliance court cited studies opposing Bain and Hecock. Id at 289-91. New Alliance also questioned the continued viability of Bain's and Hecock's empirical findings Id. at 290. To be sure, opposing studies exist, 861 F.Supp. 289-90, but as the Eighth Circuit noted "many studies report a finding of some ballot advantage in the top position" 637 F.2d. at 1166 n.15. As stated in the Court's Memorandum, the most recent empirical studies continue to find prejudice in favorable ballot placement. (Docket Entry No. 45, Memorandum at 82).

Next, Defendants contend that Rosen did not involve ballot placement. The order affirmed in Rosen was "to place the designation Independent below the name placement of a candidate whose name appears on the general election ballot as a result of a nominating petition". 970 F.2d at 171. Rosen explicitly recognized that language on an election ballot "gives a `"voting cue" or `clue'" to voters 970 F.2d at 177. The Court quoted the following from Rosen.

Id. at 175, 176, 177 (citations omitted).

Here, in allowing a preferential ballot position to the majority political party with the 2010 enactment of Tenn. Code Ann. § 2-5-208(d)(1), Tennessee had to comply with Rosen to satisfy the First Amendment and the Equal Protection Clause principles. Rosen found prejudice in preferential treatment of political parties over an independent party. As to Tennessee's form of preference in order on the ballot, the Eighth Circuit and other courts hold that a state law providing for an "incumbent first" placement on ballot, is unconstitutional. McClain, 637 F.2d at 1168-69. Significantly, McClain involved a preferential placement for a party on a "block ballot" that "reserves the `first or left-hand column' of the ballot for "the party which received the most vote". Id at 1161, 1166. Thus, Rosen and McCain support the Court's conclusion on Tennessee's favorable ballot placement for the "majority party". Of course, the mere fact of its enactment reasonably reflects the majority's party's view or perception that preferential placement on the ballot has political and election value.

The Defendants' next argument is that the Court erred in failing to recognize precedents that Defendants possess the right to exclude unqualified political parties that lack an significant community support. On this issue, the court reasoned, in essence:

(Docket Entry No. 45, Memorandum at 67-68 (emphasis in the original).

As stated in Storer decided in 1972, involving Texas's requirement of voter support for ballot access for minor political parties, the Supreme Court stated "in this instance 22,000 signatures-falls within the outer boundaries of support the State may require before according political parties ballot position." 415 U.S. at 783 (emphasis added). Texas had more than 2.2 million voters. Http://www.sos.state.tex.us/elections/historical/70-92. For a comparable analysis for the same this period, Tennessee's 1970 gubernatorial election had 1,108,247 voters. Anne Hopkins and William Lyons, "Tennessee Voters: 1799-1976 at 354. In the 1972 general election there were 1,201,182 voters. Id. at 372. Applying a comparable analysis for 1972 as in Storer, Tennessee's "outer boundaries" of voter support would be between 10,082 to 12,000 voter. Plaintiff Green party exceeded that level and Plaintiff Constitution Party's latest petition nearly meets the lower of the range. Moreover, in the 2000 Presidential election, the Green Party's presidential candidate had ballot access with his party name in Tennessee and received almost twenty thousand votes. (Docket Entry No. 45, Memorandum at 11). It must be remembered that Plaintiffs' efforts to collect signatories for its petition for recognition from the Defendants, were burdened by the unconstitutional statute requiring signatories to affirm membership in the party. Goins, 793 F. Supp.2d at 1084.

For a more contemporary comparison, in Blackwell, Ohio's political party registration signature requirement was one percent of the total vote cast in the previous election or 30,000 signatures at least 120 days prior to the primary election,.462 F.3d at 587. The Sixth Circuit observed that: "The evidence in the record shows that in Ohio, elections have indeed been monopolized by two parties, and thus, the burdens imposed by the state's election laws are `far from remote.' . . . Ohio is among the most restrictive, if not the most restrictive, state in granting minor parties access to the ballot. Of the eight most populous states, Ohio has had by far the fewest minor political parties on its general election ballot.'" 462 F.3d at 589 (citing California Democratic Party v. Jones, 530 U.S. 567, 578 (2000)). In the 2002 gubernatorial election Ohio had a total of 3,228,992 votes. Http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2002Results/percentage.asp x In its 2002, gubernatorial election Tennessee had 1,687,543 votes.

http://www.tn.gov/sos/election/data/turnout/2002-11.pdf. Here, the historical facts are strikingly similar to Ohio's history on minor political parties and Plaintiffs would have to collect more than 40,000 signatories with a 119 day deadline.

As to a cogged ballot, the Court cannot discern this result with addition of two political parties when Tennessee did not experience any problems with 16 candidates on the ballot for governor in 2010 and at least six on the 2008 Presidential ballot. Likewise there was not any political upheaval or instability as a result of those elections. The Defendants' contention of political instability absent a stay of the Order directly contradict the Defendants' expert political proof, namely, Tennessee voters engage in "strategic voting" and thus, the election efforts of minor political parties's in Tennessee are exercises in political futility. (Docket Entry No. 65, Memorandum at 25-25, 29-32). If the latter is true, then the inclusion of these two minor political parties' candidates on the general election ballot should not cause a political Armageddon.

Finally, Defendants contend that the Court erroneously stated that Tennessee law requires a primary is for Presidential nomination of political parties. From its review and search of its Memorandum on this contention, the Court found the only following references to a Presidential primary.

(Docket Entry No.45, Memorandum at 66-67).

The Court correctly quoted Tenn. Code Ann. § 2-13-202 defining the offices requiring a primary that provides as follows:

(Docket Entry No. 45, Memorandum at 60).

The Court's reference to Tennessee's 2500 signature requirement for a candidate in a Presidential primary is correct statement of Tennessee law.

Tenn Code Ann. § 2-5-205 (a) and (b) (emphasis added). In a word, the Court's ruling was based upon the primary requirement for statewide offices. The Court's ruling did not impact the Presidential primary.

For these collective reasons, the Court does not discern a likelihood of success on appeal nor any irreparable harm to the Defendants nor to others. Plaintiffs, however, do suffer an irreparable injury from the Defendants' violation of their First Amendment rights to fair and equal access to the election ballot. The Court deem it in the public interest to enforce these First Amendment rights.

For these reasons, the Defendants' motion for a partial stay should be denied.

An appropriate Order is filed herewith.