NEEDREPLACE

• Decision Date: 14 March 2014
• Docket Number: Case No. 3:13–cv–1128.
• Parties: GREEN PARTY OF TENNESSEE and 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: New York District Court

7 F.Supp.3d 772

GREEN PARTY OF TENNESSEE and 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.

Case No. 3:13–cv–1128.

United States District Court, M.D. Tennessee, Nashville Division.

Filed March 14, 2014

Plaintiffs' motions granted.

Held Unconstitutional

West's T.C.A. § 2–1–114.

Unconstitutional as Applied

West's T.C.A. §§ 2–1–104(a)(31), 2–13–107(f).

Alan 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 Constitution Party of Tennessee, filed this action under 42 U.S.C. § 1983 against the Defendants: Tre Hargett, in his official capacity as Tennessee's Secretary of State and Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee. Plaintiffs assert several claims: (1) that Tenn.Code Ann. § 2–1–104(a)(31) and § 2–13–107(f), alone and in combination, impose an unconstitutional burden on Plaintiffs' First and Fourteenth Amendment rights as minor parties seeking status as a “Recognized minor party”; (2) that Plaintiffs' rights under the First and Fourteenth Amendments are violated by Tenn.Code Ann. § 2–1–114 requiring a minor or new political party to file an affidavit stating that the party does not advocate the overthrow of local, state or national government by force or violence and that the party is not affiliated with any such organization, before its nominees are placed on the ballot; and (3) that these statutes also violate the Equal Protection Clause of the Fourteenth Amendment.

In essence, Plaintiffs' principal claim is that based on the results of the 2012 election and, to retain their ballot access, Tenn.Code Ann. § 2–1–104(a)(31) and the 2012 amendment to § 2–13–107(f) required Plaintiffs to satisfy the voter requirement of “statewide political parties” after only one election. Plaintiffs' candidates were on the 2012 ballot with their parties' respective names as a result of this Court's Order in prior litigation. In a word, Plaintiffs' candidates received less than 5% of the total vote in the 2012 election. Based on those results and these statutes, Plaintiffs did not qualify as a “statewide political party” and lost their continued ballot access in future elections. Because of the 2012 election results and the 2012 amendments, Plaintiffs also lost their status as a “Recognized minor party”. To regain that status, Tenn.Code Ann. § 2–1–104(24) requires Plaintiffs to satisfy the same 2.5% voter signature requirement that this Court held unconstitutional in each of its prior decisions on Tennessee ballot access laws. Based upon these effects, Plaintiffs assert that these statutes impose an unconstitutional burden on Plaintiffs' First and Fourteenth Amendment rights to create and develop as new political parties.

Plaintiffs' other claims are that Section 2–13–107(f) alone violates the Due Process Clause by depriving Plaintiffs of their Court ordered status as a “Recognized political party”, without notice or opportunity to be heard and without a legitimate state interest. In addition, Plaintiffs had only one election to secure continued ballot access as a “statewide political party”, but Tenn.Code Ann. § 2–1–104(a)(31) affords a “statewide political party” four calendar years to meet the minimum vote requirement for automatic ballot access. Plaintiffs cite this time disparity to qualify as a “statewide political party” as a violation of their rights under the Equal Protection Clause. Plaintiffs also cite the Defendants' refusal to acknowledge them as “Recognized minor part[ies]” until August 9, 2012, after the Sixth Circuit denied their motion for a stay in the parties' earlier litigation. According to Plaintiffs, the effect of the Defendants' refusal was that Plaintiffs had only three months before the November 2012 election to disseminate to Tennessee voters their status as a “Recognized minor party”. Finally, Plaintiff assert that Tenn.Code Ann. § 2–1–114, requiring a certification of the Plaintiffs' disavowal of the overthrow of the government as a condition for ballot access violates the Due Process Clause under longstanding Supreme Court precedents.

Before the Court are the parties' motions for summary judgment. In their motion for partial summary judgment (Docket Entry No. 14), Defendants argue that Plaintiffs' challenge to Tenn.Code Ann. § 2–1–114 lacks merit based upon their proof that the Democratic and Republicans parties have filed such affidavits and that State officials do not enforce this statute. Defendants also argue that Plaintiffs cannot assert a Section 1983 claim based upon the Tennessee constitutional provision cited by Plaintiffs, Tenn. Const. art. I, Sec. 1.¹

In their motions for summary judgment (Docket Entry Nos. 18 and 19), Plaintiffs argue, in sum: (1) that Tenn.Code Ann. § 2–1–104(a)(24)'s 2.5% signature requirement to secure the status of a “Recognized minor party” is unconstitutional based upon this Court's prior holdings; (2) that the combined effects of Tenn.Code Ann. § 2–13–107(f) and Tenn.Code Ann. § 2–1–104(a)(31) impose unconstitutional burdens on minor political parties seeking continued ballot access as a “Recognized minor party”; and (3) that Tenn.Code Ann. § 2–13–107(f)'s disqualification provisions violate the Equal Protection Clause.

For the reasons set forth below, the Court concludes that Tenn.Code Ann. § 2–1–104(31) and Tenn Code Ann. § 2–13–107(f), alone and in combination, unduly burden Plaintiffs' rights under the First and Fourteenth Amendments to create and develop their political parties by securing ballot access for Plaintiffs' candidates. In addition, Tenn Code Ann. § 2–13–107(f) violates Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment by denying Plaintiffs, minor political parties, the same four calendar years afforded to major political parties to secure continued ballot access for their candidates. For these reasons stated in prior rulings, the Court again concludes that Tenn.Code Ann. § 2–1–104(24)'s 2.5% voter signature requirement to qualify as a “Recognized minor party” violates Plaintiffs' rights under the First and Fourteenth Amendments to secure ballot access for their candidates. Based upon longstanding Supreme Court precedent, Tenn.Code Ann. § 2–1–114 requiring the disavowal of certain purposes of Plaintiffs' advocacy, violates Plaintiffs' First Amendment rights to free speech.

A. History of this Litigation

²

This action is another in a series of actions challenging Tennessee's ballot access laws. In the first action, Libertarian Party of Tennessee v. Goins, 793 F.Supp.2d 1064 (M.D.Tenn.2010), this Court held that the Tenn.Code Ann. § 2–1–104(a)(30) requiring party 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)'s 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 ³ 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.⁴ The Defendants did not appeal that decision, but the Tennessee General Assembly amended the State's ballot access laws that gave rise to a second action.

In the second action, Green Party of Tennessee v. Hargett, 882 F.Supp.2d 959 (M.D.Tenn.2012) ( “Green Party I” ), Plaintiffs challenged Tennessee's amended ballot access statutes affecting minority political parties and the Court held the challenged statutes unconstitutional and concluded:

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 political 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;

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; and

that Tennessee's ballot preference statute listing all candidates in the order of majority party, minority party and recognized minority party...