WILLIAM J. HAYNES, JR., Chief Judge.
Plaintiffs, Green Party of Tennessee and the Constitutional Party of Tennessee, 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 Election. Plaintiffs are political parties that seek recognition and ballot access for their candidates in Tennessee's state and national elections. Plaintiffs' original claims were: (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 with its members as a political party and effectively preclude ballot access for their candidates; (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
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) requiring membership to sign a minor party's recognition petition violated those 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 also concluded that those Plaintiffs demonstrated that Tenn.Code Ann. § 2-1-104(a)(24) requiring signatures of registered voters representing 2.5% of the vote in the last gubernatorial election, coupled with the party membership requirement in Section 2-1-104(a)(30) and the State's election officials' 120
On July 20, 2011, Plaintiffs filed this action challenging Tennessee's amended ballot access statutes for minority political parties and asserting the claims outlined supra. In earlier proceedings, Plaintiffs filed motions for summary judgment on their claims (Docket Entry Nos. 19 and 20) that included a reference to their expert report. (Docket Entry No. 37, Defendants' Response to Plaintiffs' Statement of Undisputed Facts). The Defendants filed their response in opposition with their affidavits and experts' reports. (Docket Entry Nos. 36 through 36-4 and Docket Entry No. 39-14). On February 3, 2012, the Court granted summary judgment for Plaintiffs, concluding, in sum:
(Docket Entry No. 45, Memorandum at 88-89). As pertinent here, the Court also concluded that the ballot preference statute, Tenn.Code Ann. § 2-5-208(d)(1), created "an impermissible `voting cue'" and violated the Equal Protection Clause. Id. at 82-83. The Court directed the Defendants to conduct a random public drawing to determine the order of the parties' candidates on the November 2012 general election ballot. Id.
On March 13, 2012, Defendants moved for a partial stay of the Order for the random drawing given the Defendants' appeal. On March 16, 2012, the Court denied that motion. (Docket Entry Nos. 59 and 60). The Defendants then moved for the Sixth Circuit to stay the Order for the random public drawing, and the Sixth Circuit granted that motion. Green Party of Tennessee v. Hargett, 493 Fed.Appx. 686, 690 (2012). During the appeal, the Tennessee General Assembly amended the Tennessee ballot access statutes, effective May 2012, and Plaintiffs submitted new evidence on appeal. The Sixth Circuit reversed in part and remanded two of Plaintiffs' ballot-access claims for reconsideration. The Sixth Circuit's remand requires reconsideration of two claims: (1) Plaintiffs' challenge to Tennessee's amended statutory requirements for party recognition and ballot access for minor political parties' candidates, and (2) Plaintiffs' challenge to Tennessee's ballot preference statute mandating the listing of the political parties' candidates on the general election ballot, namely, majority party, minority party, and recognized minor party. Green Party of Tennessee v. Hargett, 700 F.3d 816, 824, 827 (6th Cir.2012). As the Sixth Circuit explained:
Id. at 823-24, 826-27.
Since remand, Plaintiffs renew their motion for summary judgment (Docket Entry No. 73), and Defendants also move for summary judgment (Docket Entry No. 82). In their motion, Plaintiffs contend, in sum: (1) that the 2.5% signature requirement for a new minor political party's petition to qualify for ballot access for their candidates in the general election is unconstitutional and (2) that Tenn.Code Ann. § 2-5-208(d)(1) ordering the listing of parties' candidates on the general election ballot as majority party, minority party and "recognized political party" violates the Equal Protection Clause as an impermissible voting cue. (Docket Entry No. 73). Plaintiff also filed copies of the election ballots for all Tennessee counties in the 2012 general election. (Docket Entry Nos. 88 through 96-1).
In response and in support of their cross motion for summary judgment, Defendants contend, in essence, that: (1) Plaintiffs lack standing to challenge Tennessee's ballot-access statutes given that Plaintiffs neither intend nor desire to nominate their candidates by primary election; (2) Tennessee's statutory requirements for "recognized minor party" status are supported by legitimate state interests and do not unduly burden Plaintiffs' First Amendment rights and; (3) that Tennessee's ballot placement statute is facially constitutional. (Docket Entry No. 80).
In response to Defendants' motion for summary judgment, Plaintiffs assert: (1) that the Court previously rejected Defendants' argument that the State's election
For the reasons stated below, the Court concludes that the Plaintiffs' renewed motion for summary judgment should be granted, and Defendants' motion for summary judgment should be denied. The Court respects the General Assembly in its efforts to reform the State's ballot access laws, but the 2012 amendments to Tennessee's ballot access statutes retain the 2.5% signature requirement to become a "recognized political party" with ballot access for that party's candidates. This 2.5% signature requirement is contrary to express Supreme Court precedents on the necessary showing of a modicum of voter support for ballot access. The historical and expert proof also establishes that the 2.5% signature requirement imposes a severe burden on Plaintiffs' First Amendment rights to organize a political party and the rights of Tennessee voters to competition in political choices. In addition, the proof and empirical studies relied upon by courts, including the Supreme Court, on the effects of ballot preference statutes, establish that Tennessee's ballot preference statute for the candidates of the majority political party violates Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment.
Political parties seeking ballot listing for their candidates, can secure recognition as a "statewide political party" or a "recognized minor party." These two parties must satisfy distinct statutory requirements to have their nominees listed on an election ballot
Tenn.Code Ann. § 2-1-104(a)(24) (emphasis added).
Statewide political parties must nominate candidates for the offices of President, Governor, General Assembly members, United States Senate and United States House of Representatives by primary election. Tenn.Code Ann. § 2-13-202 and 205(a). Those parties may nominate their candidates for all other offices by any method authorized under the rules of the party or by primary election. Tenn. Code Ann. § 2-13-203. The "statewide political party" primaries are held the first Thursday in August every two years. Tenn.Code Ann. § 2-13-202 and § 2-1-104(a)(26). The deadline to qualify as a candidate for a statewide political party primary is the first Thursday in April. Tenn.Code Ann. § 2-5-101(a)(1). The latter statute creates the 119 day deadline cited by Plaintiffs in their earlier action.
For Presidential primary candidates, candidates may also appear on the ballot for Tennessee's Presidential Preference Primary upon certification by the Secretary of State who, in his sole discretion, determines that a candidate is recognized in the national news media as a Presidential candidate. Tenn.Code Ann. § 2-5-205(a)(1). Alternately, a Presidential primary candidate can obtain ballot access by submitting a petition signed by at least twenty-five hundred (2,500) registered voters no later than noon on the first Tuesday in December of the year before the year in which the election will be held. Tenn.Code Ann. § 2-5-205(a)(2).
For minor political parties' candidates to be listed on the general election ballot, such parties may nominate their candidates for any office by any method authorized under the rules of the party or by primary election. Tenn.Code Ann. § 2-13-203(a)(2). If a minor party chooses the non-primary method for nominating its candidates, then Tenn.Code Ann. § 2-13-107(a)(2) requires its qualifying petition to be filed ninety (90) days before the general election. Such a petition must conform to the requirements of Tenn.Code Ann. § 2-1-104(a)(24). For the 2014 election year, this deadline is August 6, only one day prior to the August primary election. If, however, a minor party chooses to nominate its candidates by primary election, Tenn.Code Ann. § 2-1-104(a)(24) requires its recognition petition to be filed by the same deadline for statewide party candidates to qualify, 119 days before the August primary election. Tenn.Code Ann. § 2-13-107(a)(1).
If the Coordinator of Elections determines that the petition submitted by a minor political party lacks valid signatures, any candidate seeking to represent such minor party in the August primary election who had timely filed nominating petitions, can be placed on the November general-election ballot, but as an independent candidate. Tenn.Code Ann. § 2-13-107(c). If a minor political party fails to submit sufficient number of signatures to meet the April filing deadline, Tenn.Code Ann. § 2-13-107(a)(1), allows the minor political party's candidates to be listed on the November
Any Tennessee registered voter may sign any new party's petition for recognition and may sign a new party petition after voting in a party primary election. Additionally, Tennessee's election laws do not impose any temporal or geographic restrictions on gathering signatures for a new party's petition for recognition nor restrict who may gather petition signatures nor assess any fee for verifying signatures.
Tennessee has approximately 4,030,861 registered voters in its 95 counties. (Docket Entry No. 80-1, Robertson Affidavit at ¶ 5). The Tennessee Secretary of State appoints the Tennessee Coordinator of Elections who serves as the State's chief administrative election officer of Tennessee elections.
The State election officials have responsibilities for Tennessee' three major elections that are held every four years:
(Docket Entry No. 80-1, Robertson Affidavit at ¶ 6).
The August primary election ballot is the largest and most complex ballot that includes the County General Election, the State and Federal Primary Election, and any judicial candidates that may be included on the State General Election ballot. Id. In non-presidential years, a county primary election may be held on the first Tuesday in May. Id. In addition, every eight (8) years the ballot includes the offices for all state Trial and Appellate Court Judges, the District Attorney Generals, and Public Defenders (the next one is scheduled in 2014). Id.
Each Tennessee county has a five (5) member election commission that appoints its chief administrative officer to conduct its elections. Id. at ¶ 5. Twelve (12) Tennessee counties employ only one full-time employee as its election official. Six (6) county election commissions operate less than five days a week. Id. at ¶ 5. Each county prepares its sample ballot for each primary election and for each type of voting system, such as paper absentee ballots and machine ballots. Id. at ¶ 7. For the August primary election, each county prepares at least five (5) different ballots:
Id. For any political party that qualifies as a "recognized minor party" for the primary, the county election commission would have to prepare additional paper and machine ballots. Id. For the November General Election, the county election commissions must only prepare one paper ballot and one machine ballot. Id.
Upon completion of their ballots, the county election commissions submit their sample ballots to the Tennessee Coordinator of Elections' office for approval. Tenn. Code Ann. §§ 2-5-207(e) and 2-5-206(c). State Election Office employees review each ballot. (Docket Entry No. 80-1 at ¶ 8). Another employee must double check each initial review. Id. Each review takes approximately 20-30 minutes per ballot. Id. at ¶ 9. The State Election Office documents each approval and notification to the counties for each ballot. Id. For the August primary election, the State Election Office reviews at least 475 sample ballots, at least 5 from each of the 95 counties. Id. Assuming the Defendants' estimated maximum time of 30 minutes for multiple reviews of each ballot, the eight State election employees would require eight (8) work days to complete that review. For the November election the State Election Office employees' review of 190 sample ballots would take 2-3 days to complete. Id.
After the approval of a ballot, the State election office officials scan and return each sample ballot to the county election offices for printing. Id. This process takes about 10-15 minutes per ballot. Id. The county election officials must print each ballot, program the voting machines, and test the voting machines before the election. Id. at ¶ 10. During this period, the county election offices also prepare ballots for military and overseas voters, provide absentee ballots to voters and process voter-registration applications. (Docket Entry Nos. 39-7, Koelman Affidavit at 11-12 and 39-8, Tiche Affidavit at 11). During non-presidential election years, the county election offices conduct County primary elections during May and municipal elections in presidential and non-presidential election years. Id.
In Davidson County, four and a half weeks are necessary 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, his staff needs approximately two weeks to prepare the ballots and one week to print them and thereafter 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, two weeks are required to prepare military ballots for mailing after the ballots have been printed. (Docket Entry No. 36 at 20; Exhibit 7, Koelman Affidavit at ¶ 18).
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
Robertson, Tennessee's assistant coordinator of elections, 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 for the August primary. (Docket Entry No. 36-6 at ¶ 7).
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 votes 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. GPT'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
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, only 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 candidate's name, 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.
For the 2012 election, the Green Party of the United States had 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 its 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 then Tennessee laws 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, stated 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, observed: "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).
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
In his report in the earlier action, Plaintiffs 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 opined 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 opined on the negative impact of the "Independent" label on a ballot for a candidate who is a nominee of a minority political party whose party affiliation on the ballot is "extremely" important.
Id. at 30 (emphasis added).
According to Donovan, one of the defense experts, Winger exaggerated the costs of signature collection given the use of volunteers. Donovan cited federal campaign laws and states accelerating their primary and caucuses 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 15-16, 18-20) (footnotes omitted).
Donovan also described 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 justified 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 cited 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 challenged 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, opined 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 opined 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).
For Tennessee's general election ballot, Tenn.Code Ann. § 2-5-208, as amended in 2012, mandates that the political parties' candidates are to be listed in the following order:
Tenn.Code Ann. § 2-5-208(d)(1) (emphasis added). Prior to the 2012 amendments, the Tennessee general election ballot named each political party at the top of the ballot with the candidates' names underneath. Tenn.Code Ann. § 2-5-208(d)(1) (2011).
In its earlier ruling on this statute, the Court relied upon three empirical studies that from the Court's research, other courts cited in ruling on the effects of and constitutionality of ballot preference statutes. The three studies are: H. Bain & D. Hecock, Ballot Position and Voter's Choice: The Arrangement of Names on the Ballot and its Effect on the Voter (1957); Joanne M. Miller & Jon A. Krosnick, "The Impact of Candidate Name Order on Election Outcomes", 62 Pub. Opinion Q., Vol. 62 No. 3, 291, 293-94, 308-09 (1998) and Laura Miller, "Election by Lottery: Ballot Order, Equal Protection, and the Irrational Voter", 13 N.Y.U.J. Legis. & Pub. Pol'y 373, 405 (2010) (collecting empirical social science studies). (Docket Entry No. 45, Memorandum at 82 and Docket Entry No. 59 Memorandum at 9).
The Defendants challenged only the Miller study on grounds that Tennessee law required a "party block ballot" and Miller's study involved "block ballots". In its earlier findings of fact, the Court cited Defendants' expert who described Tennessee's "Ballot Structure" as a "Block or Office ballot": "If Tennessee elections used party ballots rather than office ballots, the plaintiffs might have a marginal argument about the importance of party label. "But
To be sure, on remand, the Defendants cite competing empirical studies in support of their motion for summary judgment:
(Docket Entry No. 80 at 37-38).
In its prior ruling, the Court recognized the different and competing empirical studies (Docket Entry No. 59, Memorandum at 8), but relied upon the Eighth Circuit's ruling that despite differences in the studies, "many studies report a finding of some ballot advantage in the top position" Id. at 9 (quoting McLain v. Meier, 637 F.2d 1159, 1166 n. 15 (8th Cir.1980)). These electoral advantages are referred to as "primacy effects."
Among the other "many studies"
As a threshold issue, Defendants contend that "given ... the petition and filing-deadline requirements set forth in Tenn.Code Ann. §§ 2-1-104(a)(24) and 2-13-107(a)(1) apply only to those minor parties that choose to nominate their candidates by primary, initially there is an issue of whether Plaintiffs continue to have the requisite standing to challenge the constitutionality of these provisions.... There is no evidence in the record that Plaintiffs intend or even desire to nominate their candidates by primary election.... Accordingly, Plaintiffs have not suffered any `injury in fact' as a result of these statutory provisions." (Docket Entry No. 80 at 12, 14). Defendants also contend that Plaintiffs lack standing because "Plaintiffs have not met the statutory requirements for placement on the November 2014 general election ballot as a recognized minority party." Id. at 32.
Under Article III of the Constitution, a threshold requirement for any civil action is a "case or controversy" that exists when the named plaintiff has alleged a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (quoting Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). The Supreme Court has held that:
Warth v. Seldin, 422 U.S. 490, 508, 517-18, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Plaintiff's "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).
Although the Defendants cite several decisions on standing, the Court concludes that the standing issue must be determined by decisions on standing in ballot access controversies. 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 minor political party 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
Defendants contend that Plaintiffs lack an injury in fact because Plaintiffs do not intend or desire to nominate their candidates by primary election. (Docket Entry No. 80 at 14). As to ballot access challenges, the Supreme Court has held that minority parties have standing to a petition signature requirement even when the party had not filed any petitions with signatures. See Williams v. Rhodes, 393 U.S. 23, 28, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Storer v. Brown, 415 U.S. 724, 738 n. 9, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). Moreover, the Court concludes that Plaintiffs have standing to challenge the Tennessee ballot-access statute given the Sixth Circuit's remand and the continuing statutory
As to Plaintiffs' standing to challenge the party-order provision, in earlier proceedings, the Court determined that "the Plaintiffs are deemed to have acquired the requisite number of signatures required for recognition as political parties and to have their parties' names next to their candidates on the general election ballot." (Docket Entry No. 46 Order at 2). As such, the Plaintiffs' candidates were named on the 2012 general election ballot that Plaintiffs challenge in this action. Thus, the Court concludes that Plaintiffs possess the requisite injury in fact for standing to challenge the party-order provision, as a claim remanded by the Sixth Circuit.
Prior to a merits discussion, the Court addresses the Defendant's characterization of Plaintiffs' challenges as "facial" challenges.
To be sure, in its opinion, the Sixth Circuit directed that on remand, the Court must consider the facial challenge to the 2.5% signature statute.
700 F.3d at 823 (emphasis added). In its earlier decision, this Court stated:
In remanding Plaintiffs' claim challenging Tennessee's ballot preference statute, the Sixth Circuit also cited the lack of a factual record for the Court's ruling and the submission of new evidence on appeal:
700 F.3d at 827.
In ordering Plaintiffs' recognition as a political party and placement of their candidates' names with each candidate's party on the November 2012 election ballot, the Court made factual findings. Those factual findings were based upon Plaintiffs' historical proof about minor political parties in Tennessee and the parties' expert proof. The Court concluded that Supreme Court precedent on the limit on the number of actual voters signatures, established that Plaintiffs had made the requisite showing of "a modicum of support among potential voters" for ballot access. (Docket Entry No. 45 Memorandum at 65-72). This conclusion necessitated an analysis of Tennessee's preferential ballot statute. On the latter question, the Court considered the three cited empirical studies actual as well as the 2008 and 2010 general election ballots in ruling on Tennessee's ballot preference statute. (Docket Entry No. 59 Memorandum at 8, 18-23). Those ballots confirmed the appropriateness of the Court's reliance on the Miller and other empirical studies.
Based upon the Court's legal research, courts faced with this constitutional issue cited or had experts who presented summaries of empirical studies on the effects of preferential ballot placement. As to reliance on empirical studies, Justice Powell observed in a ballot access controversy that "a court may properly look to available evidence or to matters subject to judicial notice." McCarthy v. Briscoe, 429 U.S. 1317, 1323, 97 S.Ct. 10, 50 L.Ed.2d 49 (1976) (citations omitted). Courts deemed those statistical studies reliable and despite differences among studies, courts, including the Supreme Court, identified the Bain and Hecock study and its conclusions to represent the majority view among scholars on the adverse effects of ballot preference statutes. Thus, the Court deemed these recognized empirical studies, the parties' historical proof on minor political parties' ballot access in Tennessee and expert proof, to provide an adequate factual basis to evaluate the effects of these statutes on Plaintiffs' First Amendment rights. As noted earlier, the Supreme Court observed in a First Amendment controversy,
Florida Bar, 515 U.S. at 628, 115 S.Ct. 2371.
For these collective reasons, the Court considers Plaintiffs' challenges to Tennessee's ballot preference statute to be an "as applied" challenge.
In sum, Plaintiffs argue that Tennessee's 2012 amendments did not affect the costly and burdensome 2.5% signature requirement for a new minor political party's recognition petition to secure ballot access for their candidates. In a word, the 2012 amendment, creating the alternative of submitting such a petition 90 days before the general election, retains the 2.5% signature requirement. Thus, Plaintiffs assert that the 2012 amendment has the same effect as the 119 day deadline for recognition as a political party and ballot access for their candidates in Tennessee primary elections. Plaintiffs contend that the State lacks a legitimate justification for this 2.5% signature requirement due to its lack of proof of any voter confusion and the State's de minimis 2,500-person signature requirement for Presidential candidate. Plaintiffs contend there is not any validity to the 2.5% or 40,000 plus voter signature requirement for minor political parties.
Defendants contend, in essence, that Plaintiffs have not met their burden that the 2.5% petition signature requirement alone or in combination with the other cited state election laws is facially unconstitutional; that the State has a legitimate interest in requiring a new-party to demonstrate significant support; that the applicable law does not require the State to prove actual voter confusion or ballot overcrowding, or frivolous candidacies to restrict ballot access; that the State does not impose a fee for circulation of party recognition petitions; that the State does not restrict voters signing such petitions; and that the filing deadlines are necessary to assure ballot accuracy and timely distribution of absentee ballots.
Of these issues, the initial question is whether Tennessee's 2012 amendments provide an effective alternative for Plaintiffs to obtain recognition and ballot access for their candidates ninety (90) days before the November general election. If so, does that alternative render unnecessary consideration of the 2.5% signature requirement for the April or 119 day filing deadline for such petitions for ballot access in a primary election?
In its decision remanding this issue, the Sixth Circuit remarked about the effect of Tennessee's 2012 amendments to its ballot access statutes: "That framework has fundamentally changed since the district court decided the case because the party-primary requirement is no longer mandatory, the petition-filing deadline has moved from seven months before the general election to only three months before,
Effective May 2012, the Tennessee General Assembly amended the Tennessee ballot access statutes to provide that to become a "recognized political party," Plaintiffs must file its signature petition
Tenn.Code.Ann. § 2-13-107(a) through (c) (emphasis added).
For this 90 day deadline, Section 2-13-107(a)(2) refers to "a petition as required in § 2-1-104" and the latter statute provides for a minor political party, in pertinent part, as follows:
Tenn.Code.Ann. § 2-1-104(24) (emphasis added)
To be sure, the statutory requirement to gather such a petition for a primary is now optional. Yet, a comparison of Tennessee's 2012 amendments and the 2011 statute reveals little substantive change. The
Tennessee's 90 day deadline is measured from the general election, but in effect, the deadline is shortly before the August primary, the first Thursday in August. This 90 day deadline under the 2012 amendments operates to require collection of signatures during the same time period preceding the August primary that caused the 120 day deadline to be held unconstitutional in Blackwell, 462 F.3d at 586, 591, and led this Court to hold Tennessee's prior 119 day deadline unconstitutional. (Docket Entry No. 45 at 72-79). The rationale is that this time period is well before the major parties' August primaries and by tradition, before those parties' nominating conventions. Id. at 74-76. Significantly, Tennessee's 2012 amendments with this 90 day deadline still impose the statutory requirement of 2.5% of the total number of votes in the last gubernatorial candidates. This reading of the 2012 amendment is reflected in the Plaintiffs' continuing burdensomeness argument, (Docket Entry No. 73 Plaintiffs' Renewed Motion for Summary Judgment at 4-5), and the Defendant's argument that requiring Plaintiffs to demonstrate a modicum of voter support is a permissible State interest. (Docket Entry No. 80, Defendants' Response in Opposition at 18-20).
Plaintiffs assert violations of their First Amendment rights by the effective denial of ballot access for their parties' candidates in elections in Tennessee. "The 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 v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). This right of the minor political party to ballot access also impacts "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively" Id. at 30, 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 Supreme Court stated:
Sweezy v. New Hampshire, 354 U.S. 234, 250-51, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957).
To be sure, "[t]he States possess a `broad power to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives," Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.'" Washington. State Grange, 552 U.S. at 451, 128 S.Ct. 1184 (quoting Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)). 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). Moreover, a State may enact laws that "favor the traditional two party system." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 362, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). State ballot restrictions can prevent "the clogging of [a state's] election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections.... Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies." Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). 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.'" Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 585 (6th Cir.2006) (quoting Timmons, 520 U.S. at 358, 117 S.Ct. 1364). Yet, "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. 780, 794, 103 S.Ct. 1564 (1983)).
As to the standards for evaluating Plaintiffs' constitutional challenges to State ballot access laws, the Supreme Court has "never required a State to make a particularized showing of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies
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).
Although state voting regulations "are not automatically subjected to heightened scrutiny," Blackwell, 462 F.3d 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. 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." Id. at 586 (citing Williams, 393 U.S. at 34, 89 S.Ct. 5) (emphasis added). Thus, because the proof clearly establishes the undue burden of the 2.5% signature requirement upon minor political parties' ballot access in Tennessee, the Court applies the "strict scrutiny" standard to Tennessee's statutory' 2.5% signature requirement for ballot access for minor political parties.
"The State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot." Anderson, 460 U.S. at 788-89, 103 S.Ct. 1564. "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). In American Party of Texas, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), where minority candidates had to obtain 1% of the vote for governor at last general election, 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," Id. at 783, 94 S.Ct. 1296.
In evaluating Tennessee's 2.5% signature requirement, this Court looked beyond the mere percentages in the state statutes
Whether for the primary or the general election, Tennessee law still requires 40,000 plus signatures of registered voters on Plaintiffs' recognition petition for Plaintiffs' candidates to be listed on the ballot with their party names. Tennessee's voter signature requirement for party recognition far exceeds the outer limit of 22,000 signatures set in American Party of Texas and the 25,000 signature limits in Norman and MacDougall. Given the significantly higher 2 million voters in Texas, the Court again concludes that Tennessee's outer limit should be significantly less than 22,000. Moreover, Tennessee ballot access laws require only 2,500 signatures of eligible voters for ballot access for a candidate for President of the United States, creating a form of discrimination. Anderson, 460 U.S. at 793, 103 S.Ct. 1564 ("
Here, citing empirical evidence, Defendants' experts opine, in essence, that for Plaintiffs, as minor political parties, to obtain significant voter support in Tennessee for recognition as a political party, is an act of political futility. Yet, "the primary values protected by the First Amendment... are served when election campaigns are not monopolized by the existing political parties." Blackwell, 462 F.3d at 589 (quoting Anderson, 460 U.S. at 794, 103 S.Ct. 1564). Given Tennessee's historical record on minor political parties, the Court concludes that the 2.5% signature requirement for party recognition unduly burdens Plaintiffs' First Amendment rights to associate as a political party.
Although not at issue in Blackwell, Ohio's signature requirement for recognition and ballot access for a political party recognition was one percent of the total vote cast in the previous election or 30,000 signatures. 462 F.3d at 583. In Libertarian Party of Ohio v. Brunner, 567 F.Supp.2d 1006, 1013 (S.D.Ohio 2008), the district court noted that Ohio changed its signature requirement to .5% of the votes in the last gubernatorial election. Several other states require fewer signatures for recognition of a political party. See N.D. Cent.Code Ann. § 16.1-11-30 (West 2011) (minor parties) (7,000 signatures); see also S.C.Code Ann. § 7-9-10 (West 2012) (minor parties) (10,000 signatures); 2013 Kentucky Laws Ch. 66 (HB 427) (5,000 signatures); Green Party of Arkansas v. Martin, 649 F.3d 675 (8th Cir.2011) (sustaining Arkansas statute requiring a political party to win 3% of the state vote in the presidential or gubernatorial election or to obtain 10,000 signatures from registered voters during a three month period of their choice). According to a law review article observed in Michigan, "[t]he qualifying certificate of a political party or independent candidate seeking ballot access in either 1972 or 1974 therefore had to
The State's justifications for this 2.5% requirement remain speculative. As to assertions of voter confusion with multiple candidates, in fact, Tennessee had seven (7) Presidential candidates and sixteen (16) Gubernatorial candidates on the ballot without any evidence of voter confusion. The 90 day deadline for minor party petitions for the general election undermines the Defendants' administrative justifications for the 119 day deadline for such petitions for the primary. The administrative costs for ballot review by the Defendants' state election officials' proof taken at their highest estimate, is an eight-workday window to review ballots for distribution. For the reasons stated earlier,
As to the 90 day deadline for general elections, the Defendants explain that this deadline is one day before the August primary. (Docket Entry No. 80 at 4). For state elections, Tennessee statutes set a deadline of the first Thursday in April for nominating petitions for independent candidates in a November election, Tenn. Code Ann. § 2-5-101(a)(1), and the third Thursday in February for independent or primary candidates for an August election. Tenn.Code Ann. § 2-5-101(a)(2). Tennessee also has a "sore loser statute", Tenn. Code Ann. § 2-5-101(f)(1) and (4), that would expressly disqualify a losing candidate in a party primary from running as a candidate for another political party and bars a candidate from running as a candidate of more than one party.
To be sure, "sore loser" laws are constitutional, Storer, 415 U.S. at 736, 94 S.Ct. 1274, but alone or in combination with the other state ballot access statutes, the 90 day deadline in the 2012 amendment reinforces the effects of a "sore loser statute" on minor political parties as recent studies have documented the effects of such disqualification laws as entrenching the "duopoly" of the major political parties and "deny[ing] minor parties the most crucial element for their potential electoral success — quality candidates." Michael S. Kang, "Sore Loser Laws and Democratic Contestation", 99 Geo. L.J. 1013, 1049 nns. 145-147 (2011).
Thus, for Plaintiffs' as applied challenge, the Court concludes that although the 2012 amendments create an alternative for a minority party's recognition petition within 90 days of the general election, Tennessee retains the 2.5% signature requirement based upon the most recent gubernatorial election. The effect of this retention imposes an unjustified and unduly burdensome requirement that violates Plaintiffs' First Amendment right to associate as a political party and Tennessee voters'
Plaintiffs contend that "TCA § 2-5-208(d)(1) is unconstitutional because it improperly and unjustifiably gives a ballot placement benefit to the candidates of a specific party and denies all other candidates of any opportunity to gain priority position at the top of the candidate listing on the ballot." (Docket Entry No. 73 at 19). Defendants, however, assert "[t]here is no constitutional right under the equal protection clause to a favorable ballot position." (Docket Entry No. 80 at 32). Moreover, Defendants assert that "the majority of the empirical studies concerning the prejudicial effects of ballot order have consistently found that there is little if any ballot order effect in general elections." Id. at 37. Defendants assert that "courts have recognized that a candidate's party affiliation is the single most important factor influencing a voter." Id. at 38. Defendants also assert that even if Plaintiffs incur a minor injury from ballot placement, the state interests in organizing a clear and intelligible ballot outweigh any injury. Id. at 39.
On appeal, the Defendants "point[ed] out, "[t]he effect of ballot placement on voting is a matter of fact, and virtually every court that has found prejudice resulting from preferential ballot placement has done so based upon significant evidence demonstrating such prejudice in[]elections in that state.'"
Id. at 827 (citations omitted).
Tennessee's preferential ballot placement statute defines the order of the parties' candidates on the State's general election ballots:
In addition to the proof cited in the Court's earlier findings, supra at 32-33, after remand, Plaintiffs submitted proof that in the 2012 elections, the Defendants utilized "office block" ballots for all 95 Tennessee counties. The Defendants did not present any proof on the use of "party block" ballots except for election officials' references to different party ballots for the August primaries.
Denial of equal access to the ballot falls with the protective scope of the Equal Protection Clause of the Fourteenth Amendment. Munro, 479 U.S. at 193-94, 107 S.Ct. 533 (1986); Williams, 393 U.S. at 30-31, 89 S.Ct. 5. A state ballot practice that provides a voting cue violates the Equal Protection Clause. Rosen v. Brown, 970 F.2d 169, 175-77 (6th Cir. 1992). In its earlier ruling, the Court cited Rosen and other Circuit decisions to conclude 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 Plaintiff's First Amendment rights as well as the First Amendment rights of Tennessee voters." (Docket Entry No. 45 Memorandum at 81-82). The Court cited three empirical studies, including the "authoritative study" on this issue, finding that preferential ballot placement prejudicially effects the outcomes of elections for minor political parties. Id. and Docket Entry No. 59 Memorandum at 9. The Court also relied on the inference that by its enactment, the majority party in the General Assembly recognized or perceived a political advantage of such a preferential ballot placement. Id. at 11. This inference is a reasonable one. Blackwell, 462 F.3d at 587 (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.'") (quoting Clingman v. Beaver, 544 U.S. 581, 603, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (O'Conner, J., concurring)). See also Weisberg v. Powell, 417 F.2d 388, 393 (7th Cir.1969) (per curiam) (discussing candidates and their representatives who camped out overnight for a chance to be first on the ballot). The Court's Memorandum denying the Defendants' motion to stay attached ballots from the 2008 Presidential election and the 2010 Gubernatorial election from two of the State's largest two cities in which "office block" ballots were used. (Docket Entry No. 59, Memorandum at 18-23).
Among the three empirical studies that the Court cited was the Bain and Hecock study. In New Alliance Party v. New York State Bd. of Elections, 861 F.Supp. 282 (S.D.N.Y.1994), that is relied upon by the Defendants, the District Court described the Bain and Hecock study as the "authoritative study" on the effects of ballot preference statutes. Id. at 288. As to the empirical studies cited by the Defendants' pending motion for summary judgment, the Court earlier recognized the different and competing empirical studies on the effects of such laws, (Docket Entry No. 59, Memorandum at 8), but relied upon the Eighth Circuit's finding that despite differences among these studies, "many studies report a finding of some ballot advantage in the top position." Id. at 9 (quoting McLain, 637 F.2d at 1166 n. 15).
As to the appropriateness of this Court's finding based upon these published empirical studies, in Morse v. Republican Party of Virginia, 517 U.S. 186, 197 n. 13, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996), the Supreme Court noted that:
517 U.S. at 197 n. 13, 116 S.Ct. 1186 (emphasis added).
As stated earlier, federal and state courts have held preferential ballot placement statutes and practices to be prejudicial and unconstitutional under various circumstances. See Sangmeister v. Woodard, 565 F.2d 460, 467 (7th Cir.1977) ("We, therefore, hold that the practice of Illinois County Clerks of excluding plaintiffs from top ballot positions was intentional and worked a substantial disadvantage to them in violation of the Fourteenth Amendment to the United States Constitution."); McLain v. Meier, 637 F.2d at 1169 ("In the present case, we find that North Dakota's "incumbent first" statute does not withstand even this minimal standard of review, because the justification offered for North Dakota's ballot arrangement is unsound."); Graves v. McElderry, 946 F.Supp. 1569, 1574 (W.D.Okla.1996) ("Based upon these facts, the Court concludes the greater weight of the evidence suggests that while its effect may be slight, position bias is present in partisan elections where candidates for office are listed vertically on the election ballot within office blocks. The Court therefore finds that Plaintiffs have met their burden to prove some measure of position bias exists in Oklahoma's General Elections, and that Democratic party candidates for public office receive a number of windfall votes in such Elections because of the configuration of election ballots prescribed by section 6-106 of the Election Code.") (footnote omitted); Culliton v. Board of Election Comm'rs, 419 F.Supp. 126, 129 (N.D.Ill. 1976) ("Indeed in Republican leaning DuPage County, that party has enjoyed the favored position continuously since the days of Abraham Lincoln. Further testimony indicated that it is the general practice throughout the state for county clerks to favor their own party with the top position."), aff'd and remanded sub nom. on other grounds by, Sangmeister v. Woodard, 565 F.2d 460, 464 (7th Cir.1977) (footnote omitted); Mann v. Powell, 333 F.Supp. 1261, 1261 (N.D.Ill.1969) (three judge court) ("Secretary of State ... has repeatedly stated that Public Act 76-1964 permits him to engage in practices utilized in the past. More recently he has argued that favoring certain candidates on the basis of "incumbency" or "seniority" is constitutionally permissible and permitted by Public Act 76-1964. We disagree. The Fourteenth Amendment requires all candidates, newcomers and incumbents alike, to be treated equally. The Weisberg case expressly condemned Secretary of State Powell's attempt to favor personal acquaintances and party regulars by awarding them top positions on the ballot. We will not permit him to achieve the same result by the transparent device of favoring incumbents or those with `seniority.' Therefore, we have decided to make permanent the temporary injunction issued by this court on December 5, 1969."); Netsch v. Lewis, 344 F.Supp. 1280, 1281 (N.D.Ill.
State courts have also held such laws unconstitutional and similarly expressed concerns about the fairness of elections with such preferences that are contrary to democratic principles. In Gould v. Grubb, 14 Cal.3d 661, 122 Cal.Rptr. 377, 536 P.2d 1337, 1345-46 (Cal.1975), the California Supreme Court stated.
122 Cal.Rptr. 377, 536 P.2d at 1343, 1345-46 (citing other state court decisions); see also Matter of Holtzman v. Power, 62 Misc.2d 1020, 1023, 313 N.Y.S.2d 904, 907 (1970) ("It was found herein as a matter of fact that there is a distinct advantage to the candidate whose name appears first on a ballot. Aside from the factual determination, such a belief appears to be so widespread and so universally accepted as to make it almost a matter of public knowledge."); Arvan v. Wayne County Clerk, 381 Mich. 761, 160 N.W.2d 345 (1968) (citing Elliott v. Secretary of State, 295 Mich. 245, 294 N.W. 171, 173 (1940)) ("It is a commonly known and accepted fact that in an election, either primary or general, where a number of candidates or nominees for the same office are before the electorate, those whose names appear at the head of the list have a distinct advantage. Groesbeck v. Board of State Canvassers, 251 Mich. 286, 232 N.W. 387 (1930). It is not consistent with fairness or purity of elections or the avoidance of misuse of elective franchise for election officials to prepare ballots in such a condition as will afford one candidate or nominee an unfair advantage over rival candidates or nominees."); Akins v. Secretary of State, 154 N.H. 67, 72-73, 904 A.2d 702, 706 (2006) ("By establishing a system that grants the primacy effect to the party that received the most votes in the prior election, RSA 656:5 denies candidates of minority parties an equal opportunity to enjoy the advantages of the primacy effect, and, thus, an equal right to be elected"). One state court found the effect of positional bias, but noted that this effect is much less pronounced
To be sure, other federal and state courts have reached contrary results. After Sangmeister, the Seventh Circuit held that a two-tiered fixed-position ballot system was constitutional, even though the system essentially guaranteed the top two spots on the ballot to the two major political parties. Bd. of Election Com'rs v. Libertarian Party, 591 F.2d 22, 27 (7th Cir.1979). In a dissent, Judge Swygert argued that the procedure invidiously discriminated against minor parties, noting that "[b]y approving a procedure which prevents a minor or `non-established' party [a]s such from ever attaining the top ballot position, the majority has effectively negated the order of this court in Sangmeister." Id. at 28 (Swygert, J., dissenting). See also New Alliance Party, 861 F.Supp. at 295-97 ("access to a preferred position on the ballot so that one has an equal chance of attracting the windfall vote is not a constitutional concern."); Libertarian Party of Colorado v. Buckley, 938 F.Supp. 687, 693 (D.Colo.1996) (placement of less popular parties lower on the ballot held to be minimal, and did not outweigh the state's "recognized interest in regulating elections is sufficient to outweigh any `position bias' claimed by Plaintiffs.").
One state court upheld the preferential ballot position, but did so because the top spot was rotated. Sonneman v. State, 969 P.2d 632, 638, 639 n. 7 (Alaska 1998) (finding that fixed-position ballot "allocates the benefit of positional bias" through its random selection of one candidate for the top position, and any primacy effect poses a "lesser burden" on the right to vote, even though it accepted as true allegation that primacy effect affects 5-7% of votes cast, and that elections in Alaska are "often decided by margins less than 5%.").
As to prejudice arising from Tennessee's ballot preference statute, the empirical studies refer to these electoral advantages of the preferential ballot position as "primacy effects."
As to an appropriate remedy, requiring alphabetical listing of candidates has been held sufficient. Schaefer v. Lamone, 2006 U.S. Dist. Lexis 96855 at *14 (D.Md. Nov. 30, 2006) aff'd, 248 Fed.Appx. 484 (4th Cir.2007) (finding no equal protection violation in statute that requires alphabetical ordering of candidates).
The Court concludes that the Plaintiffs' renewed motion for summary judgment
An appropriate Order is filed herewith.
Id. (internal quotation marks and brackets omitted with emphasis added).
The Court considers Plaintiffs' challenges to be as applied challenges. First, the record here is not a "barebones record" as the parties present historical facts, expert proof, and evidence of Tennessee's actual general election ballots. As the Supreme Court observed in an election controversy, the historical record of political parties' participation in elections is relevant as "[p]ast experience will be a helpful, if not always an unerring, guide." Storer v. Brown, 415 U.S. 724, 742, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). Second, reliance on recognized empirical studies relied upon by courts and expert opinions on issues eliminates speculation. The adverse impact on democracy is on the recognized right of Tennessee voters to have a choice among candidates of different parties with differing positions. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) ("the right of qualified voters, regardless of their political persuasion, to cast their votes effectively"). Remedies after additional elections under these statutes lack meaningfulness and causes additional injuries to First Amendment rights. Moreover, as the Supreme Court observed in a First Amendment controversy, "we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information. Indeed, in other First Amendment contexts, we have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether or eve, in a case applying strict scrutiny, to justify restrictions based upon history, consensus and `simple common sense". Florida Bar v. Went for It, Inc., 515 U.S. 618, 628, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995).
Sore loser laws limit the supply of candidates eligible for the general election by disqualifying losing candidates from party primaries. Sore loser laws, therefore, remove routes for candidates to reach the general election outside the auspices of the parties, and they reinforce the major parties' control over ballot access. As a practical matter, this concentration of ballot access in the hands of the major parties entrenches the dominance of more ideological elements in the major parties over more moderate dissenters. Sore loser laws, by removing the leverage of moderate dissenters from exiting the party through sore loser candidacies, disrupt the natural incentives to compromise with more moderate elements within the party. Repealing sore loser laws might reverse this effect and increase the leverage of moderate dissenters to move the major parties toward the political center from within." Id. at 1058, 1074-75 (footnotes omitted).
"Academic studies and articles, as well as case law, have often adopted the view that position bias exists on an election ballot. The
In Democratic-Republican Organization of New Jersey v. Guadagno, 2012 WL 4863045 at *8 (D.N.J.2012), also cited by the Defendants, that court approvingly cited this Court that "in virtually all of these cases, courts have required evidence demonstrating that ballot placement confers a benefit prior to determining whether the plaintiffs have been burdened, let alone harmed"; see also Green Party of Tennessee v. Hargett, No. 3:11-0692, 2012 WL 913259, at *5-8 (M.D.Tenn. Mar. 16, 2012) (collecting cases requiring empirical evidence of positional bias to determine burden imposed on plaintiffs.). In Clough v. Guzzi, 416 F.Supp. 1057, 1063, 1064, n. 11 (Mass.Dist.Ct.1976) the factual basis there was "Dr. Just [who] cited as her principal authority a study by Henry M. Bain and Donald S. Hecock, Ballot Position and the Voter's Choice (1957)"). In Gould v. Grubb, 14 Cal.3d 661, 667, n. 6, 122 Cal.Rptr. 377, 536 P.2d 1337 (Cal.1975) the experts there were Henry M. Bain and William James Scott, Jr., whom the Court characterized as preeminent authorities on the question of ballot placement preference. There, "several of the experts testified that a significant advantage as to ballot placement accrued to the beneficiaries in virtually all elections with the possible exception of President of the United States or perhaps a state governor." Id. at 688, 122 Cal.Rptr. 377, 536 P.2d 1337.
As to Defendants' contention that prejudice due to preferential ballot placement must be tied to the particular state, the Eighth Circuit expressly rejected that contention: "as the Seventh Circuit has noted, the probative value of the cited studies is not completely dissipated merely because the studies are not perfectly suited to the facts of this case." McLain, 637 F.2d at 1166, n. 14, 15 (citing Sangmeister, 565 F.2d at 466). In another decision cited by the Defendants, the court ruled that proof of prejudice in local elections was not required to find ballot bias due to preferential placement in local elections. Gould, 14 Cal.3d at 667-78, 122 Cal.Rptr. 377, 536 P.2d 1337 ("Neither of the City's objections can prevail. In the first place, although none of the petitioner's witnesses conducted political studies in past Santa Monica elections noting in the record suggests that the Santa Monica voters differ significantly from voters whop participated in the numerous elections that were studied.").
