Green Party of Tenn. v. Tre Hargett in His Capacity Sec'y of State

• Decision Date: 18 June 2013
• Docket Number: No. 3:11–cv–00692.,3:11–cv–00692.
• Parties: GREEN PARTY OF TENNESSEE, Constitution Party of Tennessee, Plaintiffs, v. Tre HARGETT in his official capacity as Tennessee Secretary of State, and Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

953 F.Supp.2d 816

GREEN PARTY OF TENNESSEE, Constitution Party of Tennessee, Plaintiffs,

v.Tre HARGETT in his official capacity as Tennessee Secretary of State, and Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee, Defendants.

No. 3:11–cv–00692.

United States District Court,

M.D. Tennessee,

Nashville Division.

June 18, 2013.

Unconstitutional as Applied

West's T.C.A. §§ 2–1–104, 2–13–107

West's T.C.A. § 2–5–208Alan P. Woodruff, Johnston City, TN, Darrell L. Castle, Darrell Castle & Associates PLLC, Memphis, TN, for Plaintiffs.

Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM

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 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 ballot position for the current majority party, discriminates against Plaintiffs in violation of the Equal Protection Clause of the Fourteenth Amendment. This action has a significant legislative history that is set forth below.

A. History of this Litigation

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 ¹ day deadline prior to the August primaries for petitions of new political parties, imposed an undue burden on Plaintiffs' First Amendment rights and 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.

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:

that Tennessee's 2.5% signature requirement in Tenn.Code Ann. § 2–1–104(24), and 119 day deadline for minor parties' ballot access for their candidates as a “Recognized minor party”, violated Plaintiffs' First Amendment rights to associate and Tennessee voters' rights to vote for such parties' candidates; that the State's “Nominating Petition” form and Tenn.Code Ann. § 2–5–102(a), violated Plaintiffs' and the signatory's First Amendment rights of association and privacy of the signatory's political beliefs by impermissibly compelling the signatory to assert support for the a minor political party's nominee's petition and that the signatory is a member of the party;

that the State's requirement in Tenn.Code Ann. § 2–13–202 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;

that 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; and

that 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.

(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:

The plaintiffs' ballot-access challenge boils down to two separate claims: (1) that the party-primary requirement impermissibly burdened their right to select their own nominees; and (2) that the party-primary requirement, the 119–day filing deadline, and the 2.5% signature provision combined to deny them access to the ballot. Because Tennessee now gives minor political parties the option to select their nominees for office under their own internal rules, the first of these claims is moot.

Whether the second claim is also moot is a different question. The district court held that the 2.5% signature provision was unconstitutional both in combination with the 119–day filing deadline and standing alone. That provision—which is still in effect today—was therefore a core component of the “controversy” below. Because at least this component of Tennessee's ballot-access laws remains unconstitutional under the district court's analysis, the plaintiffs' second claim is not moot.

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In our view, the district court should be given this opportunity here. The court should be able to evaluate the various components of Tennessee's election laws as part of the larger framework for providing ballot access to minor political parties ... 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, and minor-party candidates are no longer required to submit nominating petitions meeting the 2.5% signature provision and 119–day filing deadline unless their party chooses to hold a primary election.

These changes are significant enough to warrant remanding the ballot-access claim to the district court for reconsideration. As part of its reconsideration, however, the district court must take into account that the 2.5% signature requirement, standing alone, is not unconstitutional on its face. See, e.g., Am. Party of Texas v. White, 415 U.S. 767, 789, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (“Demanding signatures equal in number to 3% or 5% of the vote in the last election is not invalid on its face.”); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (upholding a Georgia law requiring independent and minor-party candidates to secure supporting signatures amounting to at least 5% of the total voters from the last election).

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The...