MEMORANDUM

WILLIAM J. HAYNES, JR., District Judge.

                                 TABLE OF CONTENTS

A.  Findings of Fact ...........................................................968
    1.  Plaintiffs .............................................................968
    2.  History of Minor Political Parties in Tennessee Elections ..............969
    3.  Tennessee's Current Ballot Access Process ..............................970
    4.  Parties' Expert Proof ..................................................976

        a.  Plaintiffs' Expert .................................................976
        b.  Defendants' Experts ................................................978

B.  Conclusions of Law .........................................................986
    1.  Res Judicata and Collateral Estoppel ...................................990
    2.  Standing ...............................................................992
    3.  First Amendment Claims .................................................994
        a.  Tennessee's Party membership Requirement ..........................1000
        b.  The Primary Requirement ...........................................1003
        c.  The 2.5% Signature Requirement ....................................1005
        d.  The 119 Day Deadline ..............................................1010
        e.  The Majority Party's Ballot Preference ............................1014
        f.  The Bar of "Nonpartisan or Independent" in Political Parties'
              Names ...........................................................1016
        g.  Plaintiffs' Nondelegation Claim ...................................1017
        h.  Vagueness Claim ...................................................1018

C.  Conclusion ................................................................1019

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.

Before the Court are the Plaintiffs' motions for summary judgment supported by their expert's report contending, in sum:

(Docket Entry Nos. 19 and 20).

In response, Defendants submit affidavits of experts, as well as state and local election officials, contending that these state laws serve the following state interests:

(Docket Entry No. 36, Defendants' Memorandum at 15). Defendants also contend with the prior ruling in Goins that the res judicata doctrine precludes Plaintiffs' challenge to the state law requiring political parties to select candidates for all statewide offices by primaries. Defendants' experts opine, in essence, that Tennessee's ballot access laws do not burden minor political parties' ballot access and that the minor political parties' poor political outcomes in Tennessee are the cause of their lack of ballot access. According to defense experts, those outcomes show that ballot access for minor political parties' efforts at party recognition are acts of political futility, not state laws. Defendants' experts assert that America's "winner takes all" election rules cause voters to engage in strategic voting and thereby elect candidates of either the Democratic or Republican party that eventually absorb minor political parties. Finally, Defendants submit affidavits of state and local election officials on the practical needs and legal requirements to justify the time deadlines for petitions from minor political parties seeking recognition for its candidates.

In reply, Plaintiffs assert, in essence: (1) that Defendants' experts' opinions and conclusions conflict with applicable court decisions; (2) that under the res judicata doctrine, Goins' holding on the 120 day deadline for a minor political party's petition for recognition as a statewide political party, precludes the defense of the 119 day deadline; (3) that Defendants' experts fail to distinguish between candidate access and minor political party access; and (4) that the state and local officials' affidavits are insufficient to justify the intrusions upon Plaintiffs' rights under First and Fourteenth Amendments.

Plaintiffs filed motions for oral argument and an expedited ruling that the Court granted and set oral argument for January 9, 2012. (Docket Entry Nos. 32 and 33). Given the Defendants' proof disputing that the state laws posed any burden for Plaintiffs, the Court ordered the Defendants to identify specific facts in their generic references to lengthy affidavits upon which they rely, given the requirements of Local Rule 56.01(c).3 On January 24, 2012, Defendants filed their response. (Docket Entry No. 44).

Based upon the facts and controlling legal authorities set forth below, the Court concludes that the provisions of the Tennessee ballot access statutes imposing the 2.5% signature requirement and the 119 day deadline prior to the August primary, alone and in combination, violate Plaintiffs' and their members' First Amendment rights to associate as a political party and Tennessee voters' rights to the opportunity to vote for such parties. The Court concludes that the State's "Nomination Form" for minor political parties' petitions requiring the signatory's affirmation that he or she is a member of the party, violates Plaintiffs' and the signatory's First Amendment right of association and privacy of the signatory's political beliefs. Further, the Court concludes that the State's requirement that minor political parties select their nominees by primary elections is an impermissible intrusion of the Plaintiffs' First Amendment right of association that includes the right to select their nominees. In addition, Tenn.Code Ann. § 2-13-107(d), barring the words "Independent" and "Nonpartisan" in the name(s) of political parties, violates new political parties' and their members' First Amendment rights of free speech. Tenn.Code Ann. § 2-1-104(a)(24) granting the State Coordinator of Elections authority to add to the requirements for a "Recognized minor party", is unconstitutional as an improper delegation of legislative authority awarded under Article 1, Section 4 of the United States Constitution and for its impermissible vagueness.

A. Findings of Fact4

1. Plaintiffs

a. GPT

GPT was established in 1992-1993 and reconstituted in 1999-2000 with by-laws and rules for its nominating convention and Presidential candidate election. For nominating conventions, GPT's by-laws require that for state-wide offices, nominating conventions must be at a minimum of one month prior to any and all related State candidate filing deadlines. GPT membership requires "self-recognition and agreement to the Ten Key Values," and members obtain voting rights by submitting a signed copy of the 10 Key Value pledge form. GPT has an email listserv, newsletters and correspondence with approximately 500 persons. GPT has never had a candidate for a state-wide office in Tennessee that has received at least five percent of the number of votes cast for all candidates in the most recent election for gubernatorial or other state-wide office. Thus, GPT cannot obtain recognition as a state-wide political party in Tennessee. In 2000, Ralph Nader, GPT's presidential candidate, received .95% of all votes, i.e. 19,781.5 GPT has had two presidential candidates since 2000, but those candidates were listed on the ballot as "Independent" candidates. Defendants note testimony that GPT has been unable to maintain "a core group together that went from election to election." Goins, 793 F.Supp.2d at 1073 (quoting Docket Entry No. 21-8, Culver Deposition at 3). Defendants also cite a reference in 2006 that some GPT members expressed their view that GPT could attain 41,329 registered voters to submit for party recognition by 2006.

b. CPT

CPT was established in 1992, but lacks a charter, by-laws, rules, records, formal registration of members, but considers persons on its mailing list to be members of the organization. CPT currently has 631 names on its mailing list. CPT does not maintain an office space or paid staff or have regular meetings, but may meet once every four years. Since 1992, CPT has endorsed a presidential candidate on the ballot in Tennessee, but as with Libertarian Party of Tennessee, its candidate was not identified on the ballot as a CPT candidate, but only as an independent candidate. CPT has never had a candidate for a statewide office and thus, has been unable to meet the five percent threshold of the number of votes cast for all candidates in the most recent gubernatorial election. In mid-August 2001, State election officials accepted CPT's petition that did not disclose whether the individuals signing the petition were CPT members. CPT does not maintain records of whether the person signing the petition was a CPT member. On September 6, 2001, CPT submitted 293 petition pages containing approximately 4200 signatures. On November 2, 2001, CPT submitted another 345 petition pages containing approximately 5000 signatures. The State election officials do not have any record of any additional petition pages submitted by CPT after November 2, 2001.

2. History of Minor Political Parties in Tennessee Elections6

In 1889, when state governments started printing ballots, minor political parties appeared on the ballot in every presidential and congressional election year in virtually all states. From 1889 until 1961, any new or minor political parties seeking access to the general election ballot in Tennessee had to nominate candidates by convention and notify Tennessee election officials to have their nominees placed on the November election ballot. Prior to 1961, minor political parties appeared regularly on the Tennessee ballot. In 1960, the Tennessee ballot listed four political parties, Democratic, Republican, Constitution, and Prohibition.

In 1961, the Tennessee legislature amended the State's election laws to allow only political parties that had either polled 10 percent of the vote in the last election or that submitted a petition signed by 5% of the vote cast in the last election to appear on the Tennessee ballot. Since the 1961 amendments, minor political parties appeared on the Tennessee election ballot only during the elections of 1968 and 1972, when George Wallace's American Independent Party qualified. In 1972, the Tennessee legislature reduced the five percent petition requirement for ballot access for political parties to 2.5 percent of the total vote in the last gubernatorial election.

Since 1972, minor political parties attempted to qualify as statewide political parties in Tennessee without success. The Populist Party tried unsuccessfully to obtain political party recognition in Tennessee in 1989-1990. GPT sought political party recognition in Tennessee in 1993-1994, but also was unsuccessful. The Reform Party's efforts at political party recognition in Tennessee in 1995-1996, 1997-1998, and 1999-2000, were unsuccessful. CPT's efforts at political party recognition in Tennessee in 1999-2000, 2001-2002, and 2003-2004 were each unsuccessful. In each attempt, the parties acquired several thousand voters' signatures, but these numbers were insufficient for party recognition under Tennessee law. Tennessee has a population of approximately 6.2 million people and purportedly has over 3,872,868 registered voters and 3,503,355 active voters. (Docket Entry No. 36, Defendants' Memorandum at 17).

In 2000 with the "Fair Ballot Access Act of 2000," the Tennessee legislature authorized ballot access for the 2000 presidential election for candidates who polled 5,000 votes for the presidential race in 1996. Qualifying candidates could have their political party's name printed next to their names on the November 2000 ballot. After the 2000 election, a non-statewide political party's name could be listed next to the name of its presidential candidate, if that party's candidate received at least 5% of the votes in Tennessee's last presidential election. Tenn.Code Ann. § 2-5-208(d)(1). In the 2000 presidential election, presidential candidates of the Libertarian, Reform, and Green parties had their respective party name next to their candidates' names, but their candidates were still listed on the election ballot under an "Independent" heading. Since the 2000 general election, Tennessee and Oklahoma are the only states in which only the Democratic and Republican parties have appeared on the election ballots.7

Other relevant historical facts are that in a March 27, 1984 letter, Tennessee elections officials acknowledged that Tennessee statutes did not provide a specific date for when the new party petition for recognition and ballot access is due. In addition, on September 17, 1984, the then Tennessee Attorney General issued his opinion that the statutory requirements for a "statewide political party" under then Tenn.Code Ann. § 2-1-104(28)(b) was unconstitutional.8

3. Tennessee's Current Ballot Access Process

The relevant statutes for Plaintiffs' claims are quoted and reviewed infra, but in sum, political parties seeking ballot access for their candidates with the party's name next to the candidate for any state-wide office, must file their petition for ballot access as a "Statewide political party." For a "Recognized minor party," the deadline is the first Thursday in April of the election year, a 119 day deadline before the August primary. A political party presenting a candidate for statewide office must also select its candidate in the August primary election. To qualify as a candidate for any state or statewide office without party affiliation or as an independent in the general election, Tennessee's ballot access laws require the filing of a nominating petition signed by the candidate and twenty-five (25) or more registered voters who are eligible to vote to fill the office by the qualifying deadline, with the exception of independent Presidential candidates. For Presidential candidates, Tennessee requires a petition to be signed by the candidate and twenty-five (25) or more registered voters for each 11 electors allocated to Tennessee (i.e., 275 signatures of registered voters) to be listed as an independent candidate. Tenn.Code Ann. § 2-5-101(b)(1).

The current form of the "Nominating Petition" reads as follows:

Nominating Petition For Prescribed by TCA § 2-5-102(a)

(Docket Entry No. 20, Exhibit A thereto) (emphasis added).

Beth Henry-Robertson, Tennessee's assistant coordinator of elections, describes the practical and legal requirements that Defendants cite to justify the State's 119 day deadline prior to the August primaries. Pertinent portions of Robertson's affidavit are repeated in the affidavits of state and two local election officials. In sum, Robertson cites the allocation of administrative duties among state and local election officials. State election officials verify that each signatory of a minor political party's petition is a registered voter on the State's computer database9. After state review, the petition is forwarded to local election officials who verify those signatures and addresses on the petition with local records and the addresses of the petition signatories. (Docket Entry No. 36-7 at 4-5 and Docket Entry No. 36-8 at 4). Robertson also cites compliance with federal and state laws on mailing ballots to absentee voters and military personnel as well as various training and other obligations of election officials to justify 119 day deadline.

(Docket Entry No. 36-6 at 4-12). See also Docket Entry Nos. 36-8 and 36-7 for affidavits of local election officials from Davidson and Montgomery Counties. In Davidson County, it takes four and a half weeks to prepare the ballot layouts, print ballots and/or program the machines and prepare and mail the ballots to military voters. (Docket Entry No. 36 at 19-20; Exhibit 8, Tieche Affidavit at ¶ 17). According to Albert Tieche, the Davidson County Administrator of Elections, it takes his staff approximately two weeks to prepare the ballots and one week to print them and then ten days to two weeks to prepare the military ballots for mailing after the ballots have been printed. Id.; Exhibit 8, Tieche Affidavit at ¶¶ 19, 22. In Montgomery County, it takes two weeks to prepare military ballots for mailing after the ballots have been printed. (Docket Entry No. 36 at 20; Exhibit 7, Koelman Affidavit at ¶ 18). Local election officials are bound by Tenn.Code Ann. § 2-1-107 in verifying signatures on these petitions. (Docket Entry No. 36-8 and 36-7 at 5).

Drew Rawlins, executive director of the Tennessee Bureau of Ethics and Campaign Finance, reports that in the 2010 gubernatorial election, 28 individuals filed as candidates for the office of Governor and of these persons, 18 filed appointment of political treasurer forms before the April qualifying deadline. (Docket Entry No. 36-13 at ¶ 4). Nine (9) ultimately did not qualify to appear on the ballot in the August primary election. Id. at ¶ 5. Michael McWherter, a Democratic candidate filed his appointment of political treasurer form on May 15, 2009, almost 11 months before the qualifying deadline. Id. at ¶ 6. One candidate, Basil Marceaus, filed his form on October 7, 2008, eighteen (18) months before the April deadline. Id. at ¶ 7. Two Republican candidates, then Congressman Zach Wamp and now Governor Bill Haslam, filed their forms in January 2009, over fifteen (15) months prior to the qualifying deadline. Id. at ¶ 7. A fourth candidate, Senator Ron Ramsey, a Republican, filed his form on March 4, 2009, thirteen (13) months prior to the qualifying deadline. Id. The fifth candidate, Joe Kirkpatrick, filed his form on May 19, 2009, eleven (11) months before the qualifying candidate. Id.

The Green Party of the United States has two Presidential candidates, Kent Mesplay and Jill Stein, as of May 24, 2011 and November 2, 2011. (Docket Entry No. 36 at 8; Exhibit 4). One of these candidates filed a declaration of candidacy with the Federal Election Commission. (Docket Entry No. 36 at 8; Exhibit 5). "The Constitution Party website announces that it national party convention to select its nominees for President and Vice President of the United States will be held in April of 2012 in Nashville." (Docket Entry No. 36-12 at 7). The American Elect party filed a petition under the Tennessee laws at issue here seeking recognition as a political party. (Docket Entry No. 36 at 31; Exhibit-6, Henry-Robertson Affidavit at 14-15).

Todd Donovan, a defense expert who is a professor of political science at Western Washington University, states that "[i]n 2010 there were 16 candidates listed on Tennessee's ballot for [] the gubernatorial contest. Many other states would have only 2 candidates (a Democrat and a Republican). Likewise, there were 8 candidates competing for the U.S. Senate seat who were listed on the 2008 Tennessee ballot. This high number of candidates reflects that the state has multiple options for non-major party candidates to achieve ballot access." (Docket Entry No. 36-10 at 32). Bruce Oppenheimer, another defense expert and professor of political science and public policy and education at Vanderbilt University, observes: "As of a year before the 2012 election, there is already active competition with announced candidates in Tennessee's 3rd Congressional District. Only indecision about the drawing of congressional district and state legislative district lines following the 2010 census is slowing active contests elsewhere." (Docket Entry No. 36-12 at 7).

4. Parties' Expert Proof

a. Plaintiffs' Expert

In his report filed in the earlier action, Plaintiff's expert, Richard Winger, reviewed minor political parties' experiences in Tennessee and cited his study of state ballot access laws and minority political parties' participation in other states. Winger characterized minor political parties' prospects for success of obtaining recognition as a state-wide political party in Tennessee as "impossible, or virtually impossible." Goins, 793 F.Supp.2d at 1073 (quoting Docket Entry No. 25-3, Plaintiffs' Amended Expert Report at 7).

For this action, Winger opines that Tennessee's requirement for primaries for minor political parties's candidates for statewide and federal offices effectively impairs minor political parties' viability and intrudes upon their internal affairs in the selection of their nominees or spokesperson.

(Docket Entry No. 20, Winger Report at 28) (emphasis added). Winger further opines that "It is virtually unheard of for more than 3% of any state's primary voters to choose to participate in a minor party primary. In the overwhelming majority of instances at which states do provide primaries for minor parties, fewer than 1% of the primary voters choose a minor party primary ballot." Id. at 29.

Dr. Winger also cited the financial costs imposed on minor political parties' limited resources to collect the requisite voter signatures for petitions for state recognition as a barrier to recognition as a minor political party and to obtain ballot access for their candidates.

Id. (emphasis added).

Winger also opines on the negative impact of the "Independent" label on a ballot for a candidate who is a member or nominee of a minority political party.

Id. at 30 (emphasis added).

b. Defendants' Experts

According to Donovan, one of the defense experts, Winger exaggerates the costs of signature collection given the use of volunteers. Donovan cites federal campaign laws and states accelerating their primary and caucusses dates to earlier in the year as causing the early identity of major political parties' nominees and an increase in public awareness and interest in political issues. In addition, Donovan identified the "winner take all" election rules as causing the lack of minority party access to the ballot.

(Docket Entry No. 36-10 at 15, 18-20) (footnotes omitted).

Donovan also describes the justification and reasonableness of Tennessee's deadline and signature requirements for minor political parties' petitions for recognition for ballot access.

Id. at 5-6, 8-9 (footnotes omitted).

Donovan also justifies the need to limit ballot access so as to avoid increasing the size of the ballot and to allow the voters to know the candidates "well before a general election." Id. at 12.

Id. at 11-12, 15-16 (footnotes omitted).

As to absentee ballots, Donovan cites the need to mail such ballots to citizens and military personnel overseas in time for those voters to return their ballot.

Id. at 13 (footnotes omitted).

Donovan also cites States' acceleration of their primary caucus and election dates that heightens political interest among voters. Id. at 19-20. Donovan describes the political futility of minor political parties in Tennessee seeking ballot access for their candidates:

Id. at 26-28.

As to Tennessee's signature requirement and Plaintiffs' expert's comparative analysis with other states, Donovan challenges the correlation with other states and notes that Tennessee imposes lesser restrictions than other states on new political parties' petition efforts on gathering signatures, e.g. no geographical restrictions. Id. at 29. Donovan identified as a viable option for Plaintiffs and their candidates in Tennessee, ballot access as an independent candidate.

Id. at 31, 32 (emphasis added).

Oppenheimer, the other defense expert, opines that minor political parties' lack of ballot access is caused by the political futility of minor political parties. Oppenheimer cites the "winner take all" election rules and the absorption of minor political parties' views by major political parties. In Oppenheimer's opinion, members of minor political parties should participate in a major political party as a political strategy in lieu of seeking ballot access as a political party.

(Docket Entry No. 36-12 at 2, 3-5) (emphasis added).

Oppenheimer also opines that Tennessee's 119 day deadline prior to the primary may actually assist minor political parties to meet the signature requirements for party recognition and that Tennessee's primary requirement serves the public interest against party bosses' selection of candidates. Oppenheimer also discounts as baseless, concerns that major or other party members would vote in Plaintiffs' primary election for Plaintiffs' nominee.

Id. at 6-7, 8 (emphasis added).

According to Defendants, their experts agree that the causes of the lack of minor political parties' ballot access in Tennessee are: "(1) plurality elections and single member constituencies ... (2) ease of ballot access for independent or non-major-party candidates ... (3) Tennessee's `office' ballot [listing candidates in a columnar fashion for each office] ... (4) underlying political environment of the state ... and; (5) lack of underlying public interest in minor parties in the state." (Docket Entry No. 36, Defendants' Memorandum at 25) (citations to pages of experts' reports omitted). In Defendants' view, these factors preclude Tennessee ballot laws as unreasonable barriers to minor political parties' ballot access.

B. Conclusions of Law

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment:

Id. at 247-48, 106 S.Ct. 2505 (emphasis in the original and added in part). Earlier the Supreme Court defined a "material fact" for Rule 56 purposes as "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

A motion for summary judgment is to be considered after adequate time for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an affirmative showing of the need for additional discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th Cir.1989). But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).

There is a certain framework in considering a summary judgment motion as to the required showing of the respective parties as described by the Court in Celotex:

477 U.S. at 323, 106 S.Ct. 2548 (emphasis deleted).

As the Court of Appeals explained, "[t]he moving party bears the burden of satisfying Rule 56(c) standards." Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir.1986). The moving party's burden is to show "clearly and convincingly" the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir.1991) (quoting Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986)). "So long as the movant has met its initial burden of `demonstrat[ing] the absence of a genuine issue of material fact,' the nonmoving party then `must set forth specific facts showing that there is a genuine issue for trial.'" Emmons, 874 F.2d at 353 (quoting Celotex and Rule 56(e)).

Once the moving party meets its initial burden, the Court of Appeals warned that "[t]he respondent must adduce more than a scintilla of evidence to overcome the motion [and] ... must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (citations omitted). See also Hutt v. Gibson Fiber Glass Products, 914 F.2d 790, 792 (6th Cir.1990) ("A court deciding a motion for summary judgment must determine `whether the evidence presents a sufficient disagreement to require a submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.'") (quoting Liberty Lobby).

The Court of Appeals further explained the District Court's role in evaluating the proof on a summary judgment motion:

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989). In this district, the parties must provide specific references to the proof upon which they rely. See Local Rule 56.01(c) requiring each party to provide a statement of undisputed facts to which the opposing party must respond.

If both parties make their respective showings, the Court then determines if the material factual dispute is genuine, applying the governing law.

Liberty Lobby, 477 U.S. at 248, 252, 106 S.Ct. 2505 (citation omitted and emphasis added).

It is likewise true that:

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation omitted). As the Court of Appeals stated, "[a]ll facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion." Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir.1986) (citation omitted).

In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions, and other authorities on summary judgment and synthesized ten rules in the "new era" on summary judgment motions:

Street, 886 F.2d at 1479-80.

The Court has distilled from these collective holdings four issues that are to be addressed upon a motion for summary judgment: (1) has the moving party "clearly and convincingly" established the absence of material facts?; (2) if so, does the plaintiff present sufficient facts to establish all the elements of the asserted claim or defense?; (3) if factual support is presented by the nonmoving party, are those facts sufficiently plausible to support a jury verdict or judgment under the applicable law?; and (4) are there any genuine factual issues with respect to those material facts under the governing law?

1. Res Judicata and Collateral Estoppel

As a threshold issue, albeit on different issues, the parties assert that the res judicata doctrine bars certain of their adversaries' contentions. Plaintiffs contend that Goins precludes the Defendants' defense of the 2011 amendments that, in effect, reinstate the 120 day deadline for the filing of minor political parties' petitions for recognition and ballot access for their candidates. Defendants contend that Goins precludes Plaintiffs' challenge to the requirement that Plaintiffs must run candidates for all state and statewide offices in the August primary election.

In actions under federal law, the judicial doctrines of res judicata and collateral estoppel bar an action that is based upon legal claims and/or facts asserted in a prior federal action. The res judicata doctrine bars parties "from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Under the collateral estoppel doctrine, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue on a different cause of action involving a party to the first case." Id. at 94, 101 S.Ct. 411 (citing Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) with emphasis added). Federal law on res judicata and collateral estoppel obtains if the prior action involved a federal claim. Allen, 449 U.S. at 94-95, 101 S.Ct. 411. Res judicata attaches to "a prior suit in which a Court entered a final judgment on the merits." Fellowship of Christ Church v. Thorburn, 758 F.2d 1140, 1143 (6th Cir.1985). Here, Goins involved a federal law claim and there was a final decision on the merits that the Defendants did not appeal.

In City of Canton, Ohio v. Maynard, 766 F.2d 236 (6th Cir.1985), the Sixth Circuit explained the "two branches of [the] res judicata" doctrine.

Id. at 238 (emphasis added and citations omitted).

The absence of identical parties in the prior action does not necessarily avoid the preclusive effects of the res judicata doctrine, if the defendants in the latter action stand in substantial privity with the defendants in the former action.

Smith v. Capots, 78 F.3d 585, ___, No. 94-3842, 1996 WL 99322, at *2 (6th Cir. March 6, 1996) (unpublished).

In Goins, a Section 1983 action, the Defendants were the Secretary of State and State Election Coordinator who are also parties in this action. At issue in Goins was the Tennessee Coordinator of Elections's deadline for minor political parties' petitions for recognition as a "statewide political party" that the Defendants set because there was not any statutory deadline. In Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), a § 1983 action, the Supreme Court ruled that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Thus, the State was the party to Goins.

The dominant issue in Goins was whether Tennessee's deadline violated the 120 day deadline held unconstitutional by Blackwell. Given that the 120 day deadline was not set by statute and that the named Defendants set the deadline, the Court concludes that the Defendants had a full opportunity to present evidence of whatever practical or legal justifications for Tennessee's prior deadline of 147 days or any other deadline to enable the State and local election officials to perform administrative functions. The Defendants could have presented the proof that they submitted in this action on how much time was necessary to serve the State's interests to meet any deadline. Most, if not all of the proof submitted from state and local election officials, as well as their experts in this action, are based upon facts and laws known to Defendants prior to January, 2010 when the Defendants moved for summary judgment in Goins (Libertarian Party of Tennessee v. Thompson10, 3:08cv63 at Docket Entry No. 21) and prior to the Court's September 20, 2010 decision in Goins. After the Court's ruling in Goins, the Defendants had the opportunity to file a motion under Fed.R.Civ.P. 59 to present any new legal development or facts, but elected not to do so.

The only material difference from Goins cited by the Defendants is the MOVE Act that Defendants state: "In 2009, Congress passed the Military and Overseas Voters Empowerment Act ("MOVE"), 42 U.S.C. § 1973ff-1(8), which requires us to mail these ballots out no later than forty-five (45) days before the election." (Docket Entry No, 36-6 at ¶ 7) (emphasis added). The MOVE Act has its origins in the Federal Voter Act of 1955, former 42 U.S.C. § 1973cc et seq. and the "Overseas Citizens Voting Rights Act of 1975", former 42 U.S.C. § 1973dd et seq. In 2009, Congress passed amendments, among other provisions, to add "absent uniformed services voter" and to extend its provisions from general elections to include "primary" and "runoff elections", 2009 Pub.L. 111-84, § 577(a)(1)(C), § 578(a)(1)(C) and 579(a)(1)(C). Although these provisions were to take effect for federal elections in November 2010, the amendments were passed on October 28, 2009. Thus, these provisions of MOVE were enacted about 2 months prior to the filing of the Defendants' motion for summary judgment in Goins on January 15, 2010 (Libertarian Party of Tennessee, 3:08cv 63 Docket Entry No. 22) and almost a year prior to the Court's ruling on September 20, 2010. If overlooked, the Defendants could have cited the MOVE Act in a Rule 59 motion to alter or amend, but failed to do so. In any event, the MOVE Act does not contain any 45 day deadline, as represented. The 45 day deadline is cited in a best practices report by the U.S. Election Assistance Commission. (Docket Entry No. 36-10 at 13). Thus, the Defendants had ample opportunity in the Goins litigation to raise any facts or legal issues posed by MOVE.

In these circumstances, the Court concludes that the claim preclusion branch of the res judicata doctrine precludes proof on any administrative issues to justify the State's 119 day deadline that is in effect, indistinguishable from the 120 day deadline in Blackwell and at issue in Goins. Yet, in the event of an appeal and to avoid unnecessary costs and delay for the parties, the Court considers the merits of this 119 day deadline.

As to Defendants' contention that Plaintiffs cannot relitigate the requirements of Tenn.Code Ann. § 2-13-202 requiring a "Statewide political party" to run candidates for Governor, Congress and the General Assembly in a primary, Goins addressed the issue of the number of offices to be fielded with candidates and upheld this statute, reasoning that a party seeking recognition as a "Statewide political party", could reasonably be required to field candidates for these offices. 793 F.Supp.2d at 1089-90. Yet, since Goins, the General Assembly created a new category of political parties, the "Recognized minor party" in Tenn.Code § 2-1-104(a)(24). Thus, the Court concludes that the enactment of the new Section 2-1-204(24) for this new political party category presents the need to evaluate Section 2-13-202's primary requirement for these offices.

2. Standing

Defendants contend that Plaintiffs GPT and CPT lack standing to challenge Tenn.Code Ann. § 2-13-107(d) of the 2011 amendments that precludes the use of the terms "Nonpartisan or Independent" in the name of a political party. Defendants argue that neither GPT nor CPT asserts any intention to use such term(s) for their parties' ballot names. Plaintiffs conceded that point, but argue that this statute deprives them of that right to use such terms and that denial confers standing upon them for this challenge.

The threshold requirement for any civil action is a "case or controversy" under Article III of the Constitution asserted by a plaintiff who has standing to raise the issue. In determining whether a "case or controversy" exists and whether the named plaintiff has standing to complain, the Supreme Court stated in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975):

Id. at 508, 517-18, 95 S.Ct. 2197 (citation and footnote omitted); accord County of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ("At the core of the standing doctrine is the requirement that a plaintiff [must] `allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'") (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).

This "threat of injury" must be both "real and immediate" not "conjectural" or "hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). As a general rule, standing should be determined as a preliminary matter through an examination of the facts at the time of the motion. Haskell v. Washington, 864 F.2d 1266, 1276 (6th Cir.1988). A potential exception may lie where the issues of standing and the merits are inextricably intertwined. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 243 n. 5, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983).

Although the defendants cite several decisions on standing, the Court concludes that the standing issue must be determined by those decisions that address standing in the context of ballot access. In Williams v. Rhodes, 393 U.S. 23, 28, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the Supreme Court held that the Socialist Labor Party had standing to challenge Ohio's restrictions on minor party ballot access, including the petition signature requirement, although that party had not filed any petition with signatures. In Storer v. Brown, 415 U.S. 724, 738 n. 9, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the Supreme Court found that independent presidential and vice-presidential candidates had standing to challenge California's ballot access notwithstanding their failure to file any petition with signatures seeking ballot recognition. See also Stevenson v. State Board of Elections, 794 F.2d 1176 (7th Cir.1986) (independent candidate in general election to state and county offices had standing to challenge Illinois' early filing deadline without showing submissions of petition with signatures); Rainbow Coalition of Oklahoma v. Oklahoma State Election Board, 844 F.2d 740 (10th Cir.1988) (minority parties who contested Oklahoma's petition requirements and filing deadline for third parties had standing despite their lack of compliance with statutes). In this Circuit, an affiliate of LPT that presented evidence that a state's ballot access requirements were impossible to meet, was held to possess standing to challenge the state statutes at issue. Libertarian Party of Kentucky v. Ehrler, 776 F.Supp. 1200, 1203 (E.D.Ky.1991).

Moreover, under Blackwell, the constitutional "inquiry is not whether each law individually creates an impermissible burden but rather whether the combined effect of the applicable election regulations creates an unconstitutional burden on First Amendment rights". 462 F.3d at 586 (citing Williams, 393 U.S. at 34, 89 S.Ct. 5) (emphasis added). Thus, as a matter of law, in ballot access controversies, all relevant statutes impacting ballot access of minority political parties must be evaluated collectively. In this context, the Court concludes that GPT and CPT have standing to challenge this statutory bar against the use of "Nonpartisan" or "Independent" in a political party's name that clearly impacts a minor political party's ballot access. Absent such standing, the Court would remain obligated to consider this statute's effect on a minor political party's access to the ballot.

3. Plaintiffs' First Amendment Claims

Plaintiffs challenge several Tennessee election statutes as violating their First Amendment rights to vote and to associate as political parties. From the Court's review of the 2011 Tennessee amendments, the Tennessee General Assembly made the following changes: that the petition deadline for recognition as a political party is now the first Thursday in April of the election year, as opposed to the prior law's deadline of the first Thursday in March of the election year, and that changes the deadline to 119 days from 147 days from the August primary. See Tenn.Code Ann. § 2-5-101, as amended by Public Acts ch. 182 §§ 1-7 (2011). The General Assembly maintained the 5% signature requirement of the vote in the most recent gubernatorial election to be a "statewide political party," but created a 2.5% signature requirement for new a "Recognized minor party". The General Assembly also deleted from Tenn.Code Ann. § 2-1-104(a)(29)(B) the requirement that a signatory to the minor political party's petition assert that the signatory is a member of the party. As stated earlier, this requirement of affirming party membership is now in the candidates' "Nominating Petition." Supra at 12. The General Assembly added a bar to political parties' use of the words "Nonpartisan" and/or "Independent" in their political names and established a preferred ballot position for the majority party.

For Plaintiffs' constitutional challenges, the language of the pertinent Tennessee revised statutes with the citation is as follows:

Plaintiffs assert that, individually and in combination, these statutes impermissibly burden and effectively deprive them of their First Amendment rights to free speech, to vote, to associate so as to form a political organizations in Tennessee, and to secure ballot access for their candidates.

Citizens' rights to form a political party is a fundamental value of the First Amendment. "Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views." California Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000); see also Tashjian v. Republican Party of Conn., 479 U.S. 208, 214, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (recognizing as fundamental "`[t]he right to associate with the political party of one's choice'") (citation omitted). Moreover, statutes restricting "the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively." Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986). These rights are intertwined with: "`the rights of voters and the rights of candidates [and] do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical correlative effect on voters.'" Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (citation omitted). Under the First Amendment, a voter's ability to cast an effective vote "`is of the most fundamental significance under our constitutional structure.'" Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (citation omitted). In Anderson, the Supreme Court emphasized the importance of ballot access and voting rights:

460 U.S. at 786, 103 S.Ct. 1564.

As to the significance of the denial of ballot access for minor political parties' candidates, "[t]he right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot." Williams, 393 U.S. at 31, 89 S.Ct. 5. "Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past." Id. at 32, 89 S.Ct. 5. "In our political life, third parties are often important channels through which political dissent is aired." Id. at 39, 89 S.Ct. 5 (Douglas, J., concurring). In another decision, the Court stated:

Sweezy v. New Hampshire, 354 U.S. 234, 250-51, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (Warren, C.J.).

In Green Party of Arkansas v. Martin, 649 F.3d 675 (8th Cir.2011), the Eighth Circuit identified the general principles of a State's authority to regulate elections and the limits on that authority.

Id. at 680.

As the Sixth Circuit observed, "[t]his does not mean ... that all state restrictions on political parties and elections violate the Constitution" and "states `may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.'" Blackwell, 462 F.3d at 585 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997)). Yet, where a "State ... is controlled by the political parties in power, [those parties] ... `presumably have an incentive to shape the rules of the electoral game to their own benefit.'" Id. at 587 (quoting Clingman v. Beaver, 544 U.S. 581, 603, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (O'Conner, J., concurring)). "`In short, the primary values protected by the First Amendment ... are served when election campaigns are not monopolized by the existing political parties.'" Id. at 589 (quoting Anderson, 460 U.S. at 794, 103 S.Ct. 1564).

As to the standards for evaluating Plaintiffs' constitutional challenges to State ballot access laws, "it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group." Anderson, 460 U.S. at 793, 103 S.Ct. 1564. Strict scrutiny applies if the state law "burdens the rights of political parties and their members." Eu v. San Francisco County Democratic Cent. Committee, 489 U.S. 214, 222, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). "To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, [the Court has] called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation." Norman v. Reed, 502 U.S. 279, 288-89, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (emphasis added). Yet, "minor barriers between voter and party do not compel strict scrutiny." Blackwell, 462 F.3d at 604 (citing Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)). Although state voting regulations "are not automatically subjected to heightened scrutiny," id. at 585, the Sixth Circuit cited decisions of district courts in this Circuit and other Circuits that applied the "strict scrutiny" standard to similar ballot access laws setting percentages and deadlines for recognition of minor political parties. Id. at 590-91.

In any event, the Supreme Court summarized the analytical framework for assessing constitutional challenges to these ballot access laws:

Anderson, 460 U.S. at 789, 103 S.Ct. 1564.

The Sixth Circuit restated the standard of judicial review as corresponding to the extent of the injuries caused by the cited state law:

Id. at 585-86, 587, 588, (footnotes omitted).

The core relief sought is Plaintiffs' right to have their names next to their candidates' names on the ballot. Under Schrader v. Blackwell, 241 F.3d 783 (6th Cir.2001), there is not any absolute right to this relief, if the challenged statute is reasonable. Moreover, citing Schrader, the Blackwell stated, "However, when a candidate wishes to appear as one party's standard-bearer and voters want to exercise their constitutional right to cast a ballot for this candidate, the Court has viewed state-imposed restrictions on this fundamental process with great skepticism." 462 F.3d at 588. As observed by the Sixth Circuit:

Schrader, 241 F.3d at 789 (emphasis added).

Significantly, in analyzing the statutes and the alleged burdens on the political parties at issue here, the "inquiry is not whether each law individually creates an impermissible burden but rather whether the combined effect of the applicable election regulations creates an unconstitutional burden on First Amendment rights." Blackwell, 462 F.3d at 586 (citing Williams, 393 U.S. at 34, 89 S.Ct. 5). Yet, given the Supreme Court and Sixth Circuit precedents, one of Tennessee's ballot access statutes at issue can be addressed separately.

a. Tennessee's Party Membership Requirement

Of the Plaintiffs' multiple challenges, the Court addresses first Tennessee's "Nomination Petition", an election form that requires a signatory voter on a new political party's petition for recognition and ballot access for its candidates, to assert that he or she is a member of that party. To provide context, in Goins, a prior Tennessee state statute at issue provided:

Tenn.Code Ann. § 2-1-104(a)(29)(B) (emphasis added).

Although that statutory language was deleted in the 2011 amendments, the "Nominating Petition", in relevant part, still requires affirmation of party membership. The current form of the nominating petition reads, in pertinent part, as follows:

Nominating Petition For Prescribed by TCA § 2-5-102(a)

(Docket Entry No. 20, Exhibit A thereto) (emphasis added).

Included in a citizen's First Amendment right to vote is the voter's right to privacy of the voter's political affiliation, particularly for ties to a minor political party. In Brown v. Socialist Workers '74 Campaign Committee (Ohio), 459 U.S. 87, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982), Ohio required all political parties to file a report disclosing their financial contributors. The Supreme Court held this Ohio statute unconstitutional as applied to the Socialist Workers Party given the history of governmental hostility to that party. Id. at 88, 101-02, 103 S.Ct. 416. In so holding, the Supreme Court reasoned as follows:

Id. at 91-93, 103 S.Ct. 416 (emphasis added and footnotes and citations omitted).

Earlier, in Anderson v. Mills, 664 F.2d 600 (6th Cir.1981), the Sixth Circuit held unconstitutional a Kentucky state law providing that a voter's signature on a petition for a state candidate's petition for ballot access, stating the voter's "desire ... to vote for the candidate." In holding this law unconstitutional, the Sixth Circuit reasoned as follows:

Id. at 608-09 (emphasis added).

Citing Brown and Mills, other courts have also held various state laws unconstitutional under the First and/or Fourteenth Amendments for requiring or adversely impacting a voter because the voter signed a political party's petition. A West Virginia law deemed a voter's signature on a minor political party's petition for ballot access to forfeit that voter's right to vote for any other candidate, and the Fourth Circuit held that law to violate the First and Fourteenth Amendments. Socialist Workers Party v. Hechler, 890 F.2d 1303, 1309 (4th Cir.1989). Several district courts have held various state laws that require disclosure of a voter's affiliation with a minor political party unconstitutional under the First and/or Fourteenth Amendments. See Workers World Party v. Vigil-Giron, 693 F.Supp. 989, 994-98 (D.N.M.1988) (by signing a part recognition petition, voters represent that they are "members of the political party submitting the petition"); Libertarian Party of Nevada v. Swackhamer, 638 F.Supp. 565, 566, 568-69 (D.Nev.1986) (enjoining Nevada statute providing that by signing a minor political party's petition for ballot access, the voter signatories were "declaring that they represent a political party"); Libertarian Party of Nebraska v. Beermann, 598 F.Supp. 57, 63-64 (D.Neb.1984) (holding unconstitutional a Nebraska law that voter signing ballot access petition was required to "pledge to support the new party"); Libertarian Party of South Dakota v. Kundert, 579 F.Supp. 735, 737-39 (D.S.D.1984) (South Dakota law that by signing a ballot access petition the voter was making a "statement that the subscribers thereto have affiliated one with another for the purpose of forming the party" held unconstitutional); North Carolina Socialist Workers Party v. North Carolina State Board of Elections, 538 F.Supp. 864, 867-68 (E.D.N.C.1982) (North Carolina law that a voter signing a new party's political petition would automatically change the voter's political affiliation held unconstitutional).

Applying the principles of Brown and Mills and the cited district court decisions here, the Court concludes that Plaintiffs' First Amendment right to associate as a political party and Tennessee voters' First Amendment rights to privacy of their political affiliation are violated by this state compelled disclosure in the "Nominating Petition" for a minor party's candidates. The relevant focus for this membership requirement is its effect when the minor political party members attempt to collect voter signatures on this "Nomination Petition." At that point, the State's invasion of the voter's political privacy occurs and the form creates a chilling effect on the potential voter's support of a minor political party. As the Supreme court stated, all the State can require is a "showing of a modicum of support among the potential voters," Munro, 479 U.S. at 193, 107 S.Ct. 533 (emphasis added), not party members. Thus, the Court concludes that the State lacks a legitimate interest in this form's requiring the disclosure of a signatory's party membership.

b. The Primary Requirement

Despite its multiple challenges to Tennessee's ballot access laws, Plaintiffs argue that significant parts of their challenges become moot, if Plaintiffs are not required to select their candidates for the general election by a primary election, as required by Tennessee law. The relevant statute is Tenn.Code Ann. § 2-13-202 that provides as follows:

Id. (emphasis added). With the plural "Political Parties," this statute applies to both "Recognized minor parties" and "Statewide political parties." Defendants note that under Tenn.Code Ann. § 2-7-115(b) only voters who are members of the party or declare their allegiance to the party may vote in the party's primary. A person may be challenged in either instance. Tenn.Code Ann. § 2-7-126. Thus, Defendants argue that Tennessee's primary is a semi-closed primary that is permissible under relevant precedents.

A political party has the First Amendment right to select its nominees. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) ("The New Party's claim that it has a right to select its own candidate is uncontroversial," and citing Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975) ("party, not State has the right to decide who will be State's delegates at party convention")). California Democratic Party v. Jones, 530 U.S. 567, 578, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000), addressed California's blanket primary system under a law, Proposition 198, that allowed members of the opposing party to select the minor party's nominee. There, the Court found "a clear and present danger" to minor political parties in such a primary system as "the evidence in this case demonstrates." Id. "The impact of voting by nonparty members is much greater upon minor parties, such as the Libertarian Party and the Peace and Freedom Party." Id. "[A] single election in which the party nominee is selected by nonparty members could be enough to destroy the party." Id. at 579, 120 S.Ct. 2402. The Supreme Court then reasoned:

Id. at 582, 586, 120 S.Ct. 2402 (emphasis in original and added) (citation omitted).

Defendants argue that Tennessee's primary system is a akin to the "semi-closed" primary that renders Tennessee's system distinguishable from Jones and more like the Supreme Court's decisions in Clingman, and Tashjian. Yet, the Supreme Court observed that to vote in the primaries in Tashjian "[v]oters also had to act by registering themselves in a particular party" and in Clingman, voters had to "register as Libertarians or Independents to participate in LPO's primary" 544 U.S. at 592, 593, 125 S.Ct. 2029. Moreover, Clingman, 544 U.S. at 585, 125 S.Ct. 2029 and Tashjian, 479 U.S. at 210, 107 S.Ct. 544, involved acts by political parties requesting the State to open their closed primaries to allow independents voters to participate in their primaries. Here, the State is initiating this action by state law imposing these requirements upon Plaintiffs.

Moreover, here, at the time of voting, the voter can simply declare affiliation with the party to vote in Plaintiffs' primary election. Tennessee's cited primary law does not assure that the nonparty members are "registered independents" as in Clingman, and Tashjian. Although a challenge to such a declaration is permitted under Tennessee law, given Plaintiffs' limited support and resources, the Court concludes that Plaintiffs' prospects for realistic challenges across the State at the time of the primary voting would be, at best, nominal. As discussed below, in a State with similar laws, the voter's declaration is controlling, thereby rendering the challenge process a nullity.

Defendants cite Mississippi State Democratic Party v. Barbour, 529 F.3d 538, 541 (5th Cir.2008) involving a similar Mississippi law allowing a person to vote in a party's primary, if the voter, who is not a registered party member to vote, "intends to support the nominations" in the party's primary. The Mississippi law also allows challenges to such voters. Id. at 541 n. 3. There, the State attorney general opined that notwithstanding the challenge provision, "the stated intent of the voter is controlling". Id. at 542. Contrary to Defendants' assertions, the Fifth Circuit did not address the merits of these laws, and its actual holding was the party's lack of standing to assert claims of candidates. Id. at 545-48. The only court to consider the merits of this statute was the District Court that found these laws to violate that party's First Amendment right of association. Id. at 543. The Court concludes that Tennessee's primary system is not factually similar to a "semi-closed primary" and Jones controls.

Yet, as the Supreme Court earlier observed: "Neither can we take seriously the suggestion made here that the State has invidiously discriminated against the smaller parties by insisting that their nominations be by convention, rather than by primary election." American Party of Texas [v. White], 415 U.S. [767] at 781, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974)]. Thus, the State has a legitimate interest in avoiding voter confusion that a political party settle any intra-party disputes about its nominee prior to the general election and thereby serve that state interest in avoiding voter confusion about the nominees on the ballot.

The Defendants' experts argue that the purpose of primaries was to eliminate party bosses' control and allow more voter participation in the selection of the party's nominee. Those historical references are to the major political parties. First, as the Supreme Court observed that in evaluating these ballot access laws, there are "obvious differences in kind between the needs and potentials of a political party with historically established broad support... and a new or small political organization." American Party of Texas, 415 U.S. at 782 n. 13, 94 S.Ct. 1296. Second, to follow these experts and to adopt the State's rationale to coerce minor political parties to engage in primaries where nonparty members could vote, would be to overrule Jones.

Based upon Timmons and the holding in Jones, the Court concludes that Tennessee cannot force Plaintiffs, as minor political parties, to select their nominees by primary election and to compel Plaintiffs to do so violates Plaintiffs' First Amendment right of association, including the right to select the nominees or spokespersons for their parties. Thus, the Court concludes that Tenn.Code Ann. § 2-13-202 cannot be enforced by the State upon Plaintiffs. In light of American Party of Texas, the State can require the Plaintiffs and any minor political party to nominate their nominees by convention. This conclusion renders moot any consideration of whether Section 2-13-202's requirement that a "Recognized minor party" field candidates for all of the listed offices in Section 2-13-202 violates Plaintiffs' First Amendment rights.

c. The 2.5% Signature Requirement

Under Tennessee 2011 amendments, to satisfy the petition requirements for a "Recognized minor party" in Tenn. Code Ann. § 2-1-104(a)(24), Plaintiffs must collect 2.5% of the votes in the last gubernatorial election that undisputedly translates to 40,039 valid signatures of registered voters. Plaintiffs note that only five states have a higher petition signature requirement than Tennessee, and except for Alaska, those States' populations far exceed Tennessee's population. Plaintiffs also contend that the rule of thumb is that Plaintiffs must actually collect between 1.5-1.75 times the minimum number of signatures required to assure compliance with a state laws. Thus, Plaintiffs assert that as minor parties, Plaintiffs must actually collect in excess of 60,000 signatures for state recognition and ballot access for its candidates. Plaintiffs' proof is that to collect the necessary signatures, minor parties party must utilize paid persons to collect signatures at market cost of between $1.50-2.00 per signature yielding $120,000 in costs to meet Tennessee's 2.5% requirement. (Docket Entry No. 20, Winger Report at 29). This amount depletes Plaintiffs' resources for its electoral activities. Although the Defendants dispute this amount, the Court does not deem this dispute a material factual dispute in light of the applicable law.

As to the requested percentage of signatures, the Defendants cite and as the Court observed in Goins, multiple decisions of the Supreme Court and Circuit courts upholding as high as five percent (5%) of the total vote for political party recognition and ballot access as constitutional. See e.g., American Party of Texas, 415 U.S. at 789, 94 S.Ct. 1296 ("Demanding signatures equal in number to 3% or 5% of the vote in the last election is not invalid on its face"); Storer, 415 U.S. at 739-40, 94 S.Ct. 1274 (5% requirement not facially unconstitutional); Jenness v. Fortson, 403 U.S. 431, 438-39, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (upholding Georgia statute requiring signatures of 5% of registered voters before independent candidates could be placed on ballot). To be sure, other circuits have upheld higher percentage requirements. Cartwright v. Barnes, 304 F.3d 1138, 1141-42 (11th Cir. 2002) (reaffirming constitutionality of Georgia 5% signature requirement); Rainbow Coalition of Okla. v. Oklahoma State Election Bd., 844 F.2d 740, 741-42, 744 (10th Cir.1988) (upholding Oklahoma statute requiring signatures of 5% of the number of votes cast in the most recent election)

Other Circuits have upheld state laws requiring 2% to 3% of the total vote for ballot access as a recognized political party. Swanson v. Worley, 490 F.3d 894, 905 (11th Cir.2007) (upholding Alabama statute requiring independent candidates obtain signatures of 3% of vote in last gubernatorial election); Rogers v. Corbett, 468 F.3d 188, 195 (3rd Cir.2006) (uphold Pennsylvania statutes requiring candidate of minor political party obtain signatures of 2% of vote in last election); Libertarian Party of Florida v. Florida, 710 F.2d 790, 792-95 (11th Cir.1983) (upholding Florida statute requiring minor party candidate obtain signatures of 3% of all registered voters to appear on general election ballot). The Court agrees that for a facial challenge, the 2.5% requirement alone is a reasonable state regulation for the reasons set forth by the esteemed late jurist William M. Leech, sitting as Special Justice in Tennessee Libertarian Party v. Democratic Party, 555 S.W.2d 102, 103-05 (Tenn.1977). Goins focused on the percentage requirement of this statute and prior case law. Unlike in Goins, Defendants present empirical evidence from their experts that must be considered.

Here, citing empirical evidence, Defendants' experts opine, in essence, that for Plaintiffs, as minor political parties, to obtain significant voter support in Tennessee, is an act of political futility. In American Party of Texas where minority candidates had to obtain 1% of the vote for governor at last general election, 415 U.S. at 782, 94 S.Ct. 1296, the Court stated: "what is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot," 415 U.S. at 783, 94 S.Ct. 1296. Yet, aside from mere percentages, the Court deems probative that in American Party of Texas, the Supreme Court stated: "The District Court recognized that any fixed percentage requirement is necessarily arbitrary, but we agree with it that the required measure of support -1% of the vote for governor in the last general election and 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, 94 S.Ct. 1296 (emphasis added). Here, Tennessee far exceeds this outer limit of 22,000 signatures in American Party of Texas. Given the significantly higher 2 million voters in Texas, Tennessee's outer limit should be significantly lesser than 22,000.

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. 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, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000)).

This empirical proof from Plaintiffs' and Defendants' experts converts Plaintiffs' challenge into or resembles an "as applied" challenge. The Defendants also submitted proof beyond historical facts. The Defendants' expert proof cites electoral outcomes for minor political parties in other States and Tennessee's electoral outcomes for minor political parties that show lesser support for minor political parties in Tennessee than in other States. With the "Winner take All" electoral rule, Defendants' experts opine that Plaintiffs face political futility in gathering the voter support to meet Tennessee's 40,039 signature requirement. Plaintiffs' expert opinion was that based upon Tennessee's historical record, minor political parties' prospect for success of obtaining recognition as a state-wide political party in Tennessee is "`impossible, or virtually impossible.'" Goins, 793 F.Supp.2d at 1073 (quoting Docket Entry No. 25-3, Plaintiffs' Amended Expert Report at 7).

Thus, these undisputed facts satisfy the Court that Tennessee 2.5% signature requirement to be a "Recognized minor party", that requires 40,039 signatures of registered voters, in its effects, constitutes an undue and impermissible burden upon Plaintiffs' First Amendment rights to associate as minor political parties and to secure ballot access for their candidates for whom Tennessee voters would have the opportunity to vote.

As to the state interests that justify this 2.5% requirement, Defendants cite various administrative burdens upon state and local election officials, the most significant is the verification of signatories to a minor political party's petition for ballot access. To be sure, verification of signatures is a legitimate state interest, but the State has imposed this burden upon itself. Thus, this burden is a reflection of the State's excessive signature requirement.11 As to administrative burdens, Blackwell, addressed, but did not decide similar administrative concerns to justify Ohio's 120 day deadline:

462 F.3d at 593 n. 12 (emphasis added).

Blackwell's observations and citations to other decisions on similar administrative concerns create grave doubts about the reasonableness of Defendants' proof of administrative concerns. As discussed earlier, the cited federal laws have been in effect for decades, including ballots to be mailed to overseas voters. Defendants' proof of administrative concerns is, in large measure, speculative in nature because a minor political party has never been able to satisfy the 2.5% signature requirement. Conserving state resources alone cannot justify a limitation or barrier to minor political parties' ballot access. Bullock v. Carter, 405 U.S. 134, 144-45, 147-49, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

At the core of these administrative burdens is the state and local election officials verification of 40,039 signatures. Those burdens would be substantially lessened, if state and local election officials had fewer signatures to verify. Tennessee requires only 2,500 voter signatures for ballot access in the primary for a candidate of a statewide political party. Tenn.Code Ann. § 2-5-205(a)(2). Tennessee requires only 275 signatures for an individual to be listed on the general election ballot as a candidate for President of the United States. Tenn.Code Ann. § 2-5-101(b)(1). Tennessee's 25 signature requirement for independent candidates in the general election produced 16 candidates for governor without presenting any ballot problems. (Docket Entry No. 36-10 at 32). To add two or three candidates to the prior Tennessee ballots would not present a complex or confusing ballot. In fact, Tennessee placed a minor party candidate with his party's name next to his name on the ballot and the label "Independent" candidate. Supra at 8. If Tennessee deems 25 and 275 signatures a sufficient modicum of support to run for Governor and President of the United States and only 2500 signatures to run as a candidate in a party's Presidential primary, the Court is at a loss to understand the justifications for the 40,039 signatures for Plaintiffs, as minor political parties, particularly given that Tennessee's 40,093 signatories that almost doubles American Party of Texas's outer limit of 22,000 signatories.

Defendants' experts deemed the ballot access of independent candidates to be the functional equivalent or meaningful alternative for ballot access for minor political parties and their candidates.12 If so, then the Court is at a loss to understand the justifications for the 40,039 signatures for Plaintiffs' recognition as political parties and their candidates' ballot access and the relatively minimal showing of 25 signatories for the same candidate as independent. Statistical disparities in a party's candidates' qualifying for ballot access can violate the First Amendment. In Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 186, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), the Supreme Court struck down, as a First Amendment violation, an Illinois ballot access law for statewide elections that required a political party to secure 63,000 signatures for ballot access for its candidates in Chicago, but only 25,000 signatures in other counties. In a strikingly similar controversy, in Citizens to Establish a Reform Party v. Priest, 970 F.Supp. 690 (E.D.Ark.1996), that was cited in Blackwell, albeit on other grounds, the District Court ruled unconstitutional a 3% signature requirement with similar historical effects of exclusion of minor political parties from the ballot, as in Tennessee. In Priest, Arkansas also had an alternate method for ballot access as an independent candidate. For such an alternative, the District Court held:

Id. at 699.13 The District Court's remedy was that "Plaintiffs are deemed to have qualified as a new political party in view of the 17,262 signatures validated by Secretary of State Priest on February 16, 1996." Id.

Based upon these facts and precedents, the Court concludes that the State lacks a legitimate state interest to justify the continuing burden of this 2.5% of registered voters upon minor political parties and their candidates' access to the ballot for voters' consideration. All the State can require is a "showing of a modicum of support among potential voters." Munro, 479 U.S. at 193, 107 S.Ct. 533 (emphasis added). Thus, "if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose `less drastic means.'" Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) ("[A] State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation.").

As to the defense expert's opinions on the minor political party's futility in Tennessee, the First Amendment is the cornerstone for other constitutional rights in the Bill of Rights and the Constitution. Without the First Amendment's right of access to the courts, enforcement of constitutional rights and provisions could be rendered meaningless. The First Amendment rights of free speech, of petition for redress and to associate are critical to our democratic principles. These fundamental rights and their enforcement cannot be conditioned upon political expediency nor limited by contemporary political outcomes. "A candidate who wishes to be a party candidate should not be compelled to adopt an independent status in order to participate in the electoral process." McLain v. Meier, 637 F.2d 1159, 1165 (8th Cir.1980) (citing Storer, 415 U.S. at 745, 94 S.Ct. 1274, "[T]he political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other."). "All political ideas cannot and should not be channeled into programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups which innumerable times have been at the vanguard of democratic thought and whose programs were ultimately accepted.... The absence of such voices would be a symptom of grave illness in our society". Sweezy, 354 U.S. at 250-51, 77 S.Ct. 1203. The Court concludes that its decision on the First Amendment must be based upon constitutional values, not political values or political expediency.

d. The 119 day Deadline

Plaintiffs also challenge that the 119 day deadline before the August primary, alone and in combination with the 2.5% signatory requirement, as excessive burdens upon their First Amendment rights to associate. According to Plaintiffs, this deadline requires collection of signatures when voter interest is low. Plaintiffs argue that this 119 day deadline in April purportedly freezes the political status quo before the issues in an election have been framed. Plaintiffs insist that the timing of this deadline does not allow new parties to articulate an alternate response to those issues before the major political parties nominate their candidates.

Aside from the Court's conclusion on the 2.5% signature requirement, Blackwell requires the Court's consideration of the 2.5% signature, coupled with Tennessee's 119 day deadline. The constitutional "inquiry is not whether each law individually creates an impermissible burden but rather whether the combined effect of the applicable election regulations creates an unconstitutional burden on First Amendment rights." Blackwell, 462 F.3d at 586 (citing Williams, 393 U.S. at 34, 89 S.Ct. 5) (emphasis added).

As an initial issue, Defendants cite as a significant distinction that this 119 day deadline applies to both major and minor political parties. The Court disagrees because, as the Supreme Court observed in evaluating state ballot access laws, that there are "obvious differences in kind between the needs and potentials of a political party with historically established broad support ... and a new or small political organization[.]" American Party of Texas, 415 U.S. at 782 n. 13, 94 S.Ct. 1296.

The combined effect of Tenn.Code Ann. §§ 2-5-101(a)(1)and (2), 2-13-107(a), 2-13-201(a) and 2-13-202 requires petitions to obtain recognition as a "Recognized minor party" to be filed at least 119 days before the August state primary, i.e., the first Thursday in April of the election year, creating the 119 day requirement. Without extending this analysis, the Court does not discern any meaningful distinction between Ohio's 120 day deadline in Blackwell and Tennessee's 119 day deadline.

As stated in Blackwell the Sixth Circuit cited and relied upon decisions in other Circuits and district courts holding State deadlines of 60 days and 90 days prior to a primary as creating burdens for minor political parties and voters. 462 F.3d at 586 (citing Council of Alternative Parties v. Hooks, 121 F.3d 876, 880 (3d Cir.1997) (60 day deadline before primary an undue burden because "the election is remote and voters are generally uninterested in the campaign")); McLain v. Meier, 851 F.2d 1045, 1050-51 (8th Cir.1988) (Nebraska's February deadline 90 days prior to the primary unconstitutional). Significantly, Blackwell and Goins cited other district courts in this Circuit that have stricken state deadlines for lesser periods of time than Tennessee's 120 day deadline. Cripps v. Seneca County Bd. of Elections, 629 F.Supp. 1335, 1342 (N.D.Ohio 1985) (deadline of 75 days before the primary for independent candidates violates the First Amendment).

Of particular note is that Blackwell and Goins cited approvingly Libertarian Party of Kentucky v. Ehrler, 776 F.Supp. 1200, 1205-06 (E.D.Ky.1991), holding Kentucky's 119 day deadline for filings by minor political parties prior to the Kentucky primary was unconstitutional as an undue burden on voters and minor political parties.

Tennessee's 119 day deadline is justified by the state and local election officials' verification of the registration, signatures and address on the new political party's petition. Defendants also interpose compliance with federal and state laws on absentee ballots, access for handicapped citizens and training of state and local officials to justify the 119 day deadline. Yet, as discussed earlier, supra at 42-43, with the exception of military personnel, the laws requiring mailing ballots overseas have been in effect since at least 1975. As to access for handicapped citizens, the Americans with Disabilities Act on the State's and counties' obligations to make reasonable accommodations for voting by disabled citizens was enacted in 1990. Defendants cite administrative costs and training responsibilities, but as discussed earlier, Blackwell observed that other courts found comparable administrative concerns insufficient to justify unreasonable filing deadlines. Because a minor political party's petition has never been subjected to this process in Tennessee for decades, Defendants' proof of estimates of the administrative burdens are speculative. Given that the core of these administrative burdens is premised on the 40,039 signature requirement and based upon the language from Blackwell, quoted supra at 68-69, the Court concludes that these administrative concerns that have actually existed for decades, do not pose undue burdens on the state and local election officials to justify the 119 day deadline.

Aside from administrative concerns, Plaintiffs challenge the adverse political consequences with the timing of this 119 day deadline as arising at a time of less desirable environment for spurring political interests among citizens. In Anderson, the Supreme Court recognized this adverse impact of a State's early registration on a presidential candidate and voters:

460 U.S. at 790-91, 791-92, 799-800, 103 S.Ct. 1564 (emphasis added) (citations and footnotes omitted). Although Anderson involved a political candidate, the Sixth Circuit applied Anderson to a political party's ballot access claim. Goldman-Frankie, 727 F.2d at 605-06.

"The right to vote is `heavily burdened' if that vote may be cast only for major-party candidates at a time when other parties or other candidates are `clamouring for a place on the ballot.'" Anderson, 460 U.S. at 787, 103 S.Ct. 1564 (citing Williams, 393 U.S. at 31, 89 S.Ct. 5). As a measure of voter interest and the education of voters on the political issues, the Supreme Court expressly recognized that time deadlines far removed from actual elections are insufficient State interest in a voter access action arising out of Tennessee:

Dunn, 405 U.S. at 358, 92 S.Ct. 995 (emphasis added) (footnote omitted). Dunn held Tennessee's one year residency requirement for voters violated the equal protection clause of the Fourteenth Amendment. Id. at 342, 352, 360, 92 S.Ct. 995.

In Blackwell, Ohio's political party registration requirement amounted to only one percent of the total vote cast in the previous election. 462 F.3d at 583. Yet, this fact did not preclude the Court's conclusion that Ohio's 120 day deadline rendered Ohio's scheme unconstitutional where the 120 days deadline was a year prior to the general election. In Blackwell, the Sixth Circuit recognized the impact of the timing of state filing deadlines for minor political parties:

462 F.3d at 586, 591.

Here, the time differential between the State's 119 day deadline and the Tennessee general election is 7 months. See New Alliance Party of Ala. v. Hand, 933 F.2d 1568, 1576 (11th Cir.1991) ("No one can seriously contend that a deadline for filing for a minor party and its candidates seven months prior to the [general] election is required to advance legitimate state interests."). The practical effect of Tennessee's 2.5% signature requirements would force a minor political party to commence its petition activity 10 to 12 months or more before a general election in Tennessee. Although Ohio's 120 days deadline in Blackwell created a 12 month differential, Anderson and the decisions approvingly cited in Blackwell recognize the adverse impact on voters and minor political parties of a deadline of 119 days or less prior to the primary.

In addition, a comparison of minor political parties' participation in Tennessee elections prior to the enactment of these statutes, with minor political parties' participation after these statutes were enacted in 1961, reveals the undue burden and adverse impact of these State laws on minor political parties, their members and Tennessee voters. In addition, Plaintiffs have proven their and other minor political parties' multiple unsuccessful efforts at obtaining recognition as a statewide political party in Tennessee. Plaintiffs' expert proof is that compliance with Tennessee's requirements for recognition as a statewide political party is "impossible, or virtually impossible." Goins, 793 F.Supp.2d at 1073 (quoting Docket Entry No. 25-3, Amended Expert Report at 7). "[T]he State may not act to maintain the `status quo' by making it virtually impossible for any but two major parties to achieve ballot position for their candidates", Clements v. Fashing, 457 U.S. 957, 965, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (J. Rehnquist), nor adopt a system that "freezes the status quo." Jenness, 403 U.S. at 439, 91 S.Ct. 1970 and American Party of Texas, 415 U.S. at 787, 94 S.Ct. 1296.

Under these circumstances and based upon the authorities cited, the Court concludes that Tennessee's 119 days deadline, alone and in combination with the 2.5% requirement of Section 2-1-104(a)(24), unduly burdens Plaintiffs' First Amendment rights to vote and to associate as a political party and Tennessee voters' rights to have the opportunity to vote for alternative political parties. This deadline serves to create a monopoly for the two party system in Tennessee, an impermissible effect under Blackwell.

To be sure, Defendants' experts challenge the core rationale of these decisions on deadlines months prior to a primary or general election as inconsistent with the contemporary political environment. In sum, Defendants' experts cite changing federal campaign finance laws and fundraising, earlier declarations of candidacies by members of the major political parties and States' acceleration of their caucus and primary dates as trends that create interest in the public about political parties. In defense experts' views, these trends allow the minor political parties to assess, in a much earlier time frame, their candidates and the major parties' political positions prior to April. These experts opine that these trends also generate sufficient interests among the citizenry to enhance or assist minor political parties in soliciting support from the public. Defense experts also suggest that minor parties' viable option is to pursue either absorption by the major party or to have their candidates run in the majority party or as independent candidates.

The Court draws guidance from the Supreme Court's decisions cited supra at 71-72, and observation that there are "obvious differences in kind between the needs and potentials of a political party with historically established broad support ... and a new or small political organization." American Party of Texas, 415 U.S. at 782 n. 13, 94 S.Ct. 1296. Moreover, "[a] candidate's appearance without a party affiliation is not a substitute for appearing under a party name, and it does not lessen the burden imposed by Ohio's restrictions on minor parties". Blackwell, 462 F.3d at 592.

e. The Majority Party's Ballot Preference

Plaintiffs assert an Equal Protection claim 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 statute provides as follows:

Tenn.Code Ann. § 2-5-208(d)(1) (emphasis added).

As a general rule, a State has the authority to organize its election ballot. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). In Rosen v. Brown, 970 F.2d 169 (6th Cir.1992), an unanimous opinion authored by the late Ted Milburn, a jurist from Tennessee, the Sixth Circuit considered an Ohio law that prohibited the use of the word "Independent" with a nonparty candidate. Citing expert testimony, the Sixth Circuit found that by listing the major political party's name next to its candidate's name, the State provided a "voting cue" to Democratic and Republican candidates rendering "it virtually impossible for Independent candidates to prevail in the general election." Id. at 176. In pertinent part, the Sixth Circuit reasoned:

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

Two other Circuits hold that a ballot position based upon the parties' vote in the last election to be unconstitutional. Sangmeister v. Woodard, 565 F.2d 460, 465-67 (7th Cir.1977) (election officials' giving their party's candidates preferential placement at top of the ballot unconstitutional); McLain, 637 F.2d at 1169 (placing incumbent first on ballot unconstitutional). See also Graves v. McElderry, 946 F.Supp. 1569, 1579-80, 1581-82 (W.D.Okla.1996). Contra, New Alliance Party v. New York State Bd.of Elections, 861 F.Supp. 282, 287 (S.D.N.Y.1994); Tsongas v. Sec'y of Commonwealth, 362 Mass. 708, 291 N.E.2d 149, 153 (Mass.Jud.Ct.1972); Clough v. Guzzi, 416 F.Supp. 1057 (D.Mass.1976). The Seventh Circuit upheld the placement of major political parties on the ballot before minor political parties, to avoid "a very real risk of voter confusion." Bd. of Election Comm'rs of Chicago v. Libertarian Party of Illinois, 591 F.2d 22, 26 (7th Cir.1979). Yet, promoting stability of two parties is an impermissible state interest that the First Amendment does not recognize. Williams, 393 U.S. at 31-32, 89 S.Ct. 5.

Defendants insist that the Plaintiffs must prove actual prejudice from this preferential placement statute. Yet, in Rosen, the Sixth Circuit had expert proof of such prejudice from multiple experts. This Court cannot ignore Rosen's precedential effect about the actual prejudices of ballot preference. Second, empirical evidence in the social sciences corroborates the Sixth Circuit's and other circuits' holdings on the prejudicial effects of preferential ballot placement. 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). More than a decade later, Rosen's findings of prejudice from preferential ballot placement continue to be viable. See 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.

To be sure, in Timmons, the Supreme Court stated that a State may enact laws that "favor the traditional two party system". 520 U.S. at 367, 117 S.Ct. 1364. Yet, the preferential ballot placement here favors the majority party, and empirical evidence is that such laws favor the preferred party, not both parties. As the Sixth Circuit stated where a "State ... is controlled by the political parties in power, `[those parties] presumably have an incentive to shape the rules of the electoral game to their own benefit.'" Blackwell, 462 F.3d at 587 (quoting Clingman v. Beaver, 544 U.S. at 603, 125 S.Ct. 2029 (O'Connor, J., concurring)).

Based upon Rosen and the historical results for minor political parties in Tennessee, the Court concludes that Tenn. Code Ann. § 2-5-208(d)(1)'s preferential placement of the majority party candidates on election ballots provides an impermissible "voting cue" that violates Plaintiffs' First Amendment rights as well as the First Amendment rights of Tennessee voters. Plaintiffs' proposed remedy of placement of candidates based upon public drawing of lots or other random method would serve "the constitutional interest of like-minded voters to gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express their own political preferences." Norman, 502 U.S. at 288, 112 S.Ct. 698. As the Eighth Circuit observed: "[W]e do not now undertake on this record to determine which rotation arrangement is financially and administratively feasible, although we feel obligated to stress the constitutional requirement that position advantage must be eliminated as much as possible." McLain, 637 F.2d at 1169.

Thus, the Court concludes that Tenn. Code Ann. § 2-5-208(d)(1) violates the First Amendment rights of Plaintiffs, other political parties and Tennessee voters.

f. The Bar of "Nonpartisan or Independent" in Political Parties' Names

Tenn.Code Ann. § 2-13-107(d) that is in the 2011 amendments to Tennessee's ballot elections laws provides as follows:

Id. (emphasis added).

Under Timmons, 520 U.S. at 364, 117 S.Ct. 1364, "[S]tates certainly have an interest in protecting the integrity, fairness, and efficiency of their ballots and election process" and may bar "frivolous or fraudulent candidacies." Bullock, 405 U.S. at 145, 92 S.Ct. 849. Political parties cannot use the ballot "to send a particularized message, to its candidate and to voters, about the nature of its support for the candidate." Timmons, 520 U.S. at 362, 117 S.Ct. 1364. As a matter of law, to preclude the use of the term "Independent" party would appear to violate Rosen. As a factual matter, in past elections, Tennessee allowed the political party "American Independent Party" to be on the ballot in 1972. In addition, minor political party candidates have been listed on the ballot with the term "Independent" next to their names. Supra at 11. The term "Nonpartisan" is not shown to carry any more of a message than "Democratic" and "Republican." Given Tennessee's history of ballot names and the absence of any showing of a particularized message or false or misleading characteristics, the Court cannot discern the state's legitimate interest in the suppression of the use of these terms in a political party's name. Thus, the Court concludes that Tenn.Code Ann. § 2-13-107(d) violates a minor political party's and its members' First Amendment right of free speech.

g. Plaintiffs' Non-Delegation Claim

For these claims, Plaintiffs contend that in Tenn.Code Ann. § 2-1-104(a)(24)'s definition of a "Recognized minor party," the General Assembly delegated to the State Coordinator of Elections, but that statute does not "delineate the general policy" nor articulate "intelligible standards" for the Coordinator's exercise of the "delegated" authority nor fix "the boundaries of this delegated authority." Specifically, Plaintiffs argue that Tenn. Code Ann. § 2-1-104(a)(24) sets only the minimum number of signatures and thus, under this statute, the Coordinator of Elections may require higher number of signatures. Coordinator of Elections could also require that signatures on petitions be notarized or that signature collectors be registered voters. Plaintiffs cite this statute's failure to fix the date by which relevant regulations must be published and assert that any delay in promulgating may leave insufficient time for Plaintiffs to collect petition signatures or to secure ballot access. Finally, Plaintiffs challenge this statute's failure to prescribe language for a qualifying petition so as to allow the Coordinator of Elections or Plaintiffs to determine if a petition is acceptable.

Tenn.Code Ann. § 2-1-104(a)(24) provides that minor parties must "conform to requirements established by the coordinator of elections, but which must at a minimum bear the signatures of registered voters equal to at least two and one-half percent (2.5%) of the total number of votes cast for gubernatorial candidates in the most recent election of governor."

Under the non-delegation doctrine, a legislature "is not permitted to abdicate or transfer to others the essential legislative functions with which it is thus vested." Panama Ref. Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446 (1935). "The non-delegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of government." Mistretta v. United States, 488 U.S. 361, 371, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). To satisfy constitutional standards, a "delegating" statute must clearly delineate the powers delegated and the limits of its delegated powers. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ("[W]hen Congress confers decisionmaking authority upon agencies, Congress must `lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'") (emphasis in original and added); Am. Power Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946) (stating that delegation is "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority") (emphasis added).

Here, Article 1, Section 4, of the United States Constitution, generally referred to as the "Elections Clause," provides, in relevant part, that: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." In Libertarian Party of Ohio v. Brunner, 567 F.Supp.2d 1006 (S.D.Ohio 2008), the Secretary of State issued a "Directive" on the requirements for nominating petitions filed by minor party candidates because in Blackwell the Sixth Circuit declared the applicable Ohio laws unconstitutional. Id. at 1010. The Secretary of State sought to cure the statutory defect cited in Blackwell. In a challenge to the Secretary's authority to issue this directive, the District Court concluded that under Article I, Section 4 of the United States' Constitution, only the State legislature can establish the time, place and manner of conducting elections. Id. at 1012. Thus, the District Court held that the Secretary of State's directive was unconstitutional, reasoning:

Id. at 1012-13. Moreover in Delaney v. Bartlett, 370 F.Supp.2d 373, 382 (M.D.N.C. 2004), the District Court specifically held that a statute is unconstitutional where "candidates cannot be sure from the text of the statute whether their petitions will qualify." Id. at 384.

Thus, given the absence of statutory standards for the exercise of the State Elections Coordinators's discretion and that the subject of regulation is explicitly identified in Article 1, Section 4, of the United States Constitution, the Court concludes that Section 2-1-104(a)(24) does not qualify as a permissible delegation of legislative authority.

h. Vagueness Claim

Plaintiffs assert a vagueness claim that is akin to their nondelegation claim in that Section 2-1-104(a)(24) lacks any provisions that provide guidance on the scope or limits of Tennessee Coordinator of Elections' authority. Although this claim is moot in light of the Court's conclusion of the nondelegation claim, the Court briefly addresses the merits to avoid the costs of another appeal.

A statute is unconstitutionally vague if persons of "common intelligence must necessarily guess at its meaning and differ as to its application," Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926), or fails to give "a person of ordinary intelligence fair notice" of conformity with the statute's requirements, United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954), or if it "encourages arbitrary and erratic" enforcement by public officials. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). "The vice of unconstitutional vagueness is [] aggravated where ... the statute in question operates to inhibit the exercise of individual freedoms affirmatively protected by the Constitution...." Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). "Laws must provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

The vagueness test is applied more stringently where First Amendment rights are affected as described by the Supreme Court:

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (emphasis added).

Beyond the minimum signature provision, Section 2-1-104(a)(24) grants the State Coordinator of Elections unfettered discretion to establish party qualifying petition requirements that the legislature failed to establish, rendering this statute unconstitutionally vague. City of Chicago v. Morales, 527 U.S. 41, 51-52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Enactments that are so imprecise that officials have unfettered discretion in their application are void for vagueness.); see also Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (holding unconstitutional a statute giving unfettered discretion to city's mayor to grant or deny permits to place news racks on public property). This vagueness doctrine was applied in an election controversy. See Deorio v. Delaware Co., No. 08-5762, 2009 WL 2245067, at *2 (E.D.Pa. July 27, 2009) ("Granting unfettered discretion to [] officials [] is unconstitutional because it can lead to `arbitrary deprivations of [constitutionally protected] interests' and/or create the potential to abuse power at the expense of another.") (citation omitted).

Given Supreme Court holdings that ballot access limiting restrictions must be narrowly tailored to achieve a legitimate state interest, the Court concludes that the undefined discretion of the State Coordinator of Elections in Section 2-1-104(a)(24) fails for vagueness.

C. Conclusion.

For these reasons, the Court concludes that alone and in combination, Tennessee's 2.5% requirement and 119 day deadline for ballot access as a "Recognized minor party" and its candidates violate Plaintiffs' First Amendment rights to associate and Tennessee voters' rights to vote for such parties' candidates. The Court also concludes that the State's "Nominating Petition" form impermissibly compels the signatory's affirmation that he or she is a member of the party in violation of Plaintiffs' and the signatory's First Amendment right of association and privacy of the signatory's political beliefs. The Court further concludes that the State's requirement that minor political parties select their nominees by primary elections is an impermissible intrusion of the Plaintiffs' First Amendment right of association that includes the right to select their nominees. Tenn.Code Ann. § 2-13-107(d) barring the words "Independent" and "Nonpartisan" in the name(s) of political parties violates the First Amendment rights of free speech of minor political parties and their members. Finally, Tenn.Code. Ann. § 2-1-104(a)(24) is unconstitutional as an improper delegation of legislative authority conferred on the State by Article 1, Section 4 of the United States Constitution and, in the alternative, that the undefined discretion of the State Coordinator of Elections in § 2-1-104(a)(24) fails for vagueness.

As to the appropriate relief, based upon the precedents in Blackwell, the Court deems any deadline in excess of sixty (60) days prior to the August primary for the filing of petitions for recognition as a political party is unenforceable. As to the number of signatures required for recognition as a political party, given the State's acceptance of 25 signatures for candidates for Governor and 275 signatures for President of the United States, the Court deems GPT's past electoral support of almost 20,00 votes and CPT's almost 10,000 signatories to constitute a significant showing of support to justify their recognition as political parties and to have their parties' names next to their candidates on the general election ballot. The Defendants shall be required to conduct a public random drawing for the order of placement of the political parties' candidates' names on the general election ballot.

The Defendants are enjoined from enforcement of the state statutes requiring Plaintiffs to select their nominees by primary, awarding ballot preference to the majority party and the use of "Independent or Nonpartisan" in a political party's name. The Defendants must revise the "Nomination Petition" to delete the reference that the signatory is a member of the party.

An appropriate Order is filed herewith.