Full opinion text
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-l-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 TenmCode Ann. § 2-5-101(a)(l) 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 TenmCode 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 TenmCode 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-l-104(a)(30) and the State’s election officials’ 120 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. 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 TenmCode 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 TenmCode. Ann. § 2-l-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-l-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, TenmCode Ann. § 2-5-208(d)(l), 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. 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). * * * The plaintiffs also challenged as facially unconstitutional Tennessee’s provision that “on general election ballots, the name of each political party having nominees on the ballot shall be listed in the following order: majority party, minority party, and recognized minor party, if any.” Id. § 2-5-208(d)(1). In striking down this provision, the district court concluded that the State’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.” Green Party, 882 F.Supp.2d at 1016, 2012 WL 379774, at *52. The court based its conclusion largely on two empirical studies, one of which found “ ‘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. (quoting 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)). On appeal, the State stresses the facial nature of this challenge. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the ■ Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Courts do not usually grant this “strong medicine ... because such efforts do not seek to invalidate laws in concrete, factual settings” .... The State presumptively uses what is known as a “party block” ballot form for general elections, meaning that “all of the candidates for a party are listed in a single column.” Miller, 13 N.Y.U.J. Legis. & Pub. Pol’y at 388 & n. 77; see Tenn.Code Ann. § 2 — 5—206(b)(2) (mandating the “party block” ballot form for general elections, subject to certain exceptions). This form is distinct from an “office block” ballot form, “in which candidates are listed vertically under the heading of the office they seek.” Miller, 13 N.Y.U.J. Legis. & Pub. Pol’y at 388. The study cited by the district court analyzed elections “in states that use the ‘office block’ ballot form in general elections,” but not elections in states that use the “party block” form. Id. As for the “party block” states, the study’s author hypothesized that, “[gjiven the salience of the party label with this type of ballot, one should expect that positional effects would be minimal.” Id. Consequently, the evidence on which the district court relied provided no basis to hold that Tenn.Code Ann. § 2-5-208(d)(1) is unconstitutional on its face. While the State’s appeal was pending, however, the plaintiffs received our permission to file an exhibit of a sample general-election ballot from Washington County that uses the office-block format. But this exhibit is not sufficient to alter our conclusion that the district court wrongly held that the party-order provision is facially unconstitutional. The significance, if any, of Washington County’s general-election ballot format or any other Tennessee ballots that might use the office-block format is not for us to decide in the first instance, especially because such a format appears to conflict with the presumptive “party block” ballot specified in Tenn.Code Ann. § 2-5-206(b)(2). See Taft Broad. Co. v. United States, 929 F.2d 240, 243-44 (6th Cir.1991) (listing cases stating the general rule that issues not litigated in the trial court are not appropriate for appellate consideration). Rather, the district court is the best forum in which to further develop the factual record as necessary. Id. at 823-24, 826-27. B. Parties’ Motions on Remand 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 preparation process justifies the minor party filing deadlines; (2) that Tennessee’s 2012 amendments creating the statutory alternative for a minor political party’s recognition and ballot access for their candidates in the general election did not alter the unconstitutional effects of State’s 2.5% signature requirement for such access; (3) that the Defendants ignore the Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) balancing test; (4) that Tenn.Code Ann. § 2-5-208(d)(l) is unconstitutional under Anderson and violates principles of legislative political neutrality; and (5) that the Plaintiffs have standing to challenge the constitutionality of TenmCode Ann. § 2-5-208(d)(l). (Docket Entry No. 85). 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. 1. Findings of Fact a. Tennessee’s Current Ballot Access Process 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 with their party’s name. Statewide Political Party Nominee A “statewide political party” means: A political party at least one (1) of whose candidates for an office to be elected by voters of the entire state in the past four (4) calendar years has received a number of votes equal to at least five percent (5%) of the total number of votes case for gubernatorial candidates in the most recent election of governor. TenmCode Ann. § 2-l-104(a)(31). Recognized Minor Party Nominee “Recognized minor party” means any group or association that has successfully petitioned by filing with the coordinator of elections a petition which shall 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, and on each page of the petition, state its purpose, states its name, and contain the names of registered voters from a single county. TenmCode Ann. § 2-l-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. TenmCode 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. TenmCode Ann. § 2-5-101(a)(l). 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. TenmCode 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. TenmCode Ann. § 2-13-203(a)(2). If a minor party chooses the non-primary method for nominating its candidates, then TenmCode 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-l-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, TenmCode Ann. § 2-l-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. TenmCode 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)(l), allows the minor political party’s candidates to be listed on the November general election ballot by meeting the deadline set forth in Tenn.Code Ann. § 2 — 13—107(a)(2), that is, 90 days before the general election and satisfying the requirements of TenmCode Ann. § 2-1-104(a)(24). 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. b. Tennessee Ballot Preparation Process 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 Coordinator’s office has eight (8) full-time employees, whose duties include (1) to implement various federal and state election regulations, including the Help America Vote Act of 2002, 42 U.S.C. § 15301, et seq. and the National Voter Registration Act, 42 U.S.C. § 1973, et seq.; (2) to process candidate nominating petitions for statewide and multi-county candidacies; (3) to approve ballots for all ninety-five (95) Tennessee counties; and (4) to maintain and update the statewide voter-registration database and candidate database. (Docket Entry No. 80-1, Robertson Affidavit at ¶ 4). Local election officials must verify signatures on these petitions. (Docket Entry No. 36-8 and 36-7 at 5). The State election officials have responsibilities for Tennessee’ three major elections that are held every four years: (1) the Presidential Preference Primary and County Primary Elections held on the first Tuesday in March; (2) the County General Election, the State and Federal Primary Elections, and occasionally the State General Elections for judicial offices, held on the first Tuesday in August; and (3) the State and Federal General Election, held on the first Tuesday after the first Monday in November. (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: (1) Republican party paper ballot; (2) Democratic party paper ballot; (3) Republican party machine ballot; (4) Democratic party machine ballot; and (5) paper ballot for August General Election. 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 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 Has-lam, 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. 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). c. History of Minor Political Parties in Tennessee Elections 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 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, 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 “statewide political party” under then Tenn.Code Ann. § 2-l-104(28)(b) was unconstitutional. d. Parties’ Expert Proof 1. Plaintiffs’ Expert 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. Minor parties in the United States almost never have contested primaries, so providing them with their own primaries is wasteful. Professor Joseph P. Harris of the University of California at Berkeley was recognized during his lifetime as the nation’s leading expert on election administration. He wrote in A Model Direct Primary Law, a booklet published by the National Municipal League in 1951, “Recommendation Number 6. The use of the direct primary should be mandatory for political parties which polled 10% or more of the vote cast at the preceding general election. Smaller parties should not be permitted to demand state conduct of their internal nominating processes and do not need it.” He also wrote, “Minority parties rarely have any contests for nominations and it is unnecessary to require their use of the direct primary. Very small parties, indeed, commonly have difficulty filling up the ticket. The benefits of government operation of a primary should be restricted to parties which have cast a minimum vote, say 10%, in order to avoid the needless expense of printing separate ballots for the very small parties in which contests are extremely rare.” What Dr. Harris wrote in 1951 is still true. Forty-two states have a procedure by which a newly qualifying party can appear on the general election ballot, even though that party did not participate in a government-administered primary. States which once required newly-qualifying parties to nominate by convention, but which no longer do so, include Arkansas, Idaho, Kansas, Maine, Michigan, Montana, Nebraska, Nevada, and Wyoming. Most states never have required newly-qualifying parties to nominate by primary. The rationale for requiring major parties to nominate by primary does not apply to minor and newly-qualifying parties. No nationally-organized party, other than the Democratic and Republican Parties, has elected one of its nominees to Congress since 1948. Although minor parties significantly influence the spread of new ideas, minor party nominees don’t generally get elected to public office. Minor parties generally try to nominate their most effective spokesperson, but there is no general public expectation that the typical minor person will be elected in the general election. By contrast, when voters vote in Democratic or Republican primaries, these voters generally have some reasonable expectation that the primary winner may hold public office, so there is a more compelling reason to let major party nominees be chosen via the primary process. (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. As a general rule candidates and parties must collect 1.5-1.75 times the number of signatures required by statute. The cost of signature collection by paid signature collection ranges from $1.50 to $2.00 per signature, whether valid or not. In states requiring more than 5,000 signatures, for a candidate or party, the cost of signature collection alone exceeds the revenue available to the party and effectively prevents that from obtaining ballot access. Moreover, even where the party or candidate has sufficient resources to collect the requisite number of signatures to obtain ballot access, the cost of signature collection represents such a burden that they rarely have sufficient funds to conduct an effective campaign.... [M]y research has shown that if a state requires as many as 5,000 signatures, it will never have a crowded ballot, if “crowded ballot” is defined as a ballot with more than 9 candidates for a single office.... [A]s many as six or more candidates have appeared on the general election ballot as candidates for statewide or federal office on at least 50 occasions since the principle of “avoiding voter confusion” was first enunciated, and there is no evidence that there was any voter confusion in those elections. Tennessee’s new party petition signature requirement of 2.5% of the total votes case in the most recent gubernatorial election is the sixth most demanding in the nation ... (and) no new party has been able to gain ballot access in Tennessee since 1968. 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. Having a party affiliation designated on the ballot is essential to the candidacy of a minor party candidate. This is especially important in establishing that the candidate is affiliated with an organized party. For candidates with limited name recognition, having a party affiliation designated on the ballot is an extremely important “voter cue” to the positions and political philosophy of the candidate, and denial of that voter cue severely burdens the candidate and his party. No candidate having an identity or affiliation with a minor party has ever been elected to state office when forced to be listed on the ballot as an Independent candidate. Id. at 30 (emphasis added). 2. Defendants’ Experts 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. [D]ata from public opinion polls show that voter attention to presidential contests begins to increase as early as January of the election year, with interest peaking from early February through March before it declines thorough early summer. This would suggest voters do pay attention to high profile elections at a rather early stage of the process. Furthermore, a published study reporting a statistical analysis the relationship between filing deadlines and the success of ballot access for minor party independent U.S. Senate and gubernatorial candidates in 2000 and 2004 found that filing deadlines did not predict the number of non-majority party candidates on state ballots. Thus, it does not appear to matter how early the petitions are due; other factors related to petitioning may be more important, including how much time is actually allowed to collect signatures. As noted above, Tennessee does not limit when petitioning may heing. The third claim (above) proposes that a new party would have to “pay” $120,000 to qualify for ballot status in Tennessee. This claim appears to be based on the assumption that the new party would have zero ability to mobilize volunteers, and/or on the assumption that the substance of the petition (granting a specific party ballot status) would be of such little interest to voters that volunteers would be unable to collect signatures. The $120,000 figure assumes that every single signature would need to be collected by paid, professional petitioners. Again, minor party experiences in other states do demonstrate success in collecting signatures for ballot access. Furthermore, America’s experience with direct democracy demonstrates that citizen groups have been successful using volunteers (rather than paid petitioners) to gather signatures in many instances. Research has found that outside of California and Ohio, over 80% of initiatives that reached state ballots had relied on volunteers to gather at least 90% of signatures. This suggests that volunteer efforts are successful in places where the petitioning requirements are much more restrictive than in Tennessee. The fourth claim (above) proposes that early filing deadlines are a burden on minor parties because the deadlines fall before major party candidates are known to voters. There was more support for this claim in previous decades than today. Several things have changed the American political landscape in recent decades. Prior to the 1970s, the major parties nominated presidential candidate by conventions in the summer of presidential election years. Many convention delegates were chosen by state and local party officials and many were uncommitted. As a result, nominees were not known until after the summer nominating conventions. However, beginning in the 1970s, the major parties moved to allocating convention delegates by public primaries and conventions. One consequence of this was a sharp increase in delegates pledged to specific candidates, with each candidates delegate share known months before the convention. In 1988 major party organizations in the states began “frontloading” the schedule of primaries and caucuses such that it was often became clear who a party’s nominee would be, and the schedule compressed further over the next two decades. By 2008, 70% of convention delegates were selected by March 2 (in 1976 only 10% were selected by that date). As a result, the parties presidential nominees are typically known to the public no later than March. In addition, campaigns for statewide and congressional offices have grown increasingly expensive over the last few decades. As a result, serious major party candidates now begin soliciting campaign contributions earlier than in the past given the demands of contemporary election costs. Over the same period, states have adopted more rigorous campaign finance reporting requirements. These often require that candidates who have begun fundraising file disclosure reports before they file as candidate seeking ballot status. Candidates who are fundraising for federal (congressional) offices must also file with the Federal Election Commission prior to filing for ballot access if they are soliciting contributions. All of this provides interested observers with information about the major party candidate poll in advance of when candidates file for office, and in advance of when major party primaries are conducted. (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. Social scientists who study political parties and two party systems have determined that the most noteworthy barrier to the long-run success of smaller parties is winner-take-all (plurality) election rules. Nearly every office contested in the United States is awarded to the candidate seeking the position who wins the most votes. In the winner-take-all elections that are the norm in the United States, votes cast for a third place or lower placing candidate have no effect on determining how much representation those candidates will receive. Thus, regardless of ballot access rules, candidates who are not affiliated with a major party (a major party being a party that represents a broad electoral coalition having a history of electoral success) face the task of convincing voters to support them when they have a very limited (if any) history of electoral success, and little chance of gaining office. Many voters tend to act strategically, and attempt to affect the outcome of an election by supporting candidates from one of the two major parties. A vote for a non-major party candidate can have the effect of increasing the chances that a voter’s least preferred major party candidate could win. Given that many voters make such calculations when casting ballots in winner-take-all contests, their behavior seriously limits the short-term and long-term prospects for candidates who are not affiliated with a major party. Lacking an electoral system, such as proportional representation (PR), that is more favorable to candidates who capture smaller shares of the vote, non-major party candidates historically have had a difficult time maintaining themselves as viable political actors across time in places that use winner-take-all election rules.... Successful minor parties are also absorbed by one of the American major parties. Non major party political movements, then, are typically short-lived in the United States. The U.S. electoral system — more so than the state ballot access laws that are the subject of this analysis — means that popular support for these movements, and their potential pool of candidates, fade over time. Scholars note that the national decline in minor (third) party activity in the United States since the 1930s is due the fact that most minor party voting from the 1800s through 1930 was for left-wing parties that were absorbed by the .Democrats. Candidates from these parties tended to migrate to the Democratic Party after it adopted many the of New Deal policies. 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. Crowded ballots create the potential for ballot design flaws such as Palm Beach County, Florida’s infamous “butterfly ballot” that apparently failed to accurately translate voter intention into counted votes. The “butterfly ballot” failed because it listed candidates for the same office on two separate sheets of the ballot. If all candidates for an office are to be listed in a single column, on a single page, a crowded candidate field would require an increase in the physical size of the ballot (either the size of the paper or the number of pages), which may increase the likelihood that voters fail to complete their ballots. Crowded ballots may thus introduce voter fatigue, increase the potential for “position effects” in voting (where a non-trivial portion of a candidate’s vote share is a function, in part, of how high the candidates is listed on the ballot) and complicate the administration of elections (by requiring different sets of ballots to be printed with candidate name rotation to eliminate position effects). Petition requireménts are a common method that states use to allocate ballot access to non-major party candidates. Administrative necessity requires petitions be received well before a general election. As part of conducting multiple elections each year (for local districts, municipality, state, and federal offices), state and local election officials are required to design ballots, manage voter rolls, maintain and test voting equipment, certify elections, manage recounts, and conduct myriad additional tasks associated with the administration of elections. Many tasks are Conducted at the county level in offices with small staffs. Evaluating and certifying signatures on petitions (for candidates and for ballot measures) required of election administrators. 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. More recently, a 2004 report by the U.S. Election Assistance Commission of the United States Government on the recommended best practices for facilitating voting by unifoxmed U.S. Citizens overseas recommends that states should mail ballots “at least 45 days prior to the deadline for receipt of voted absentee ballots” because the 30 day advance date may not provide enough time for ballots to be returned. The U.S. Congress subsequently passed the Military and Overseas Voter Empowerment (MOVE) Act in 2009. MOVE established standards for ballots in federal elections, including that ballots be mailed at least 45 days prior to a federal election. This means that officials now have a narrower time window to design, print, assemble and mail ballots than before MOVE. The MOVE Act is associated with increased voting by military personnel. 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: In 2000, Tennessee listed minor party presidential candidates with their party affiliation on the ballot. Thus, Ralph Nader was identified as the Green Party candidate on the Tennessee ballot that year. This was a year when the Greens achieved heightened media attention, and when the party posted it highest national vote share ever. [In Tennessee] [s]upport for the Green Party in 2000 in Tennessee and other neighboring states, as well as support for the Greens in the Pacific Northwest,] [w]ith Nader identified as a Green candidate on the Tennessee ballot, the Green Party nonetheless polls a lower vote share than in neighboring states where Nader was also identified as the Green candidate. The Green Party ran even weaker in Tennessee (0.95% vs. 2.75% in the US) than it did in the neighboring region where the Green Party received its lowest electoral support in the nation. Conversely, the Green Party received much greater support in the west and in other regions, where state party systems have historically been more malleable and votes more supportive of minor parties. The effect of muted public support for minor parties in Tennessee was not limited to the Green Party. Nationally the combined votes for all non-major party presidential candidates (independents plus the Green, Reform, Libertarian, and other minor party votes) was 3.75% in 2000. In Tennessee, with minor party labels listed on the ballot and with a very low threshold for qualifying presidential candidates, the combined non-major party vote total was only 1.56% in 2000. Again, this was the lowest for the region, and the region had lower support for minor parties than the national average. Table 4 (below) illustrates that this effect was not limited to 2000. In 2008, a year with substantially lowered voting for minor parties nationally and for the Green Party and for the former Green candidate Nader, Tennessee continued to have lower support for the Green candidate (McKinney) and for all non-major party candidates in the presidential election than the national average. Western states, in contrast, again posted higher than average levels of support for minor parties. Table 3 and Table 4 can be considered in light of a state’s signature petition requirement. These patterns suggests that even if every Green Party voter signed a ballot qualification petition in 2000, the party would have difficulty qualifying if signatures equal to 1% of votes cast were required for ballot status. Put differently, any regulation on minor party ballot access may be relatively more difficult for a minor party in Tennessee in part because of limited public interest in minor parties. These election results suggest there is simply less market demand for minor parties in Tennessee than in many other states. To put this in further perspective, the Green candidate for president (Nader) could receive 2.45% support in Idaho as a write in 2000, but only 0.95% in Tennessee as when listed as a Green candidate on the Tennessee ballot. 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. By providing easy qualifying for as independent candidates, Tennessee’s election regulations provide opportunities for non-major party candidates to appear on general election ballots. In 2010 there were 16 candidates listed on Tennessee’s ballot for in 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. 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. In an election system that features single member constituencies and plurality elections, there is a general disincentive for minor parties to invest in general elections as a means of achieving political influence. Unlike electoral systems in countries with proportional representation and multi-member constituencies (in which minor parties may win seats with very modest percentages of the vote and thus will invest a great deal in achieving ballot access), minor parties in the United States know that it is highly unlikely for them to win office in a system where only the candidate receiving the most votes gets elected, and losing party candidates get nothing. It is clearly the biggest hurdle that minor parties and their candidates face in Tennessee and elsewhere, regardless of variation in costs of getting on ballots in different states. There is no rationale for minor parties to incur the cost of party ballot access because there exist other vehicles for minor parties and their candidates to influence elections that are less costly and as, if not more, effective than party ballot access. The other part is that minor party candidates fare just as well when listed as independents on the ballot as they do when listed with a minor party label. Contrary to the plaintiffs’ assertion, there is no empirical evidence of an additional benefit in terms of winning votes for candidates running with a minor party label as opposed to running as independents. The plaintiffs’ claim that voters use a party label as a cue in selecting among candidates on the ballot is based on research about voting for major party candidates, not for minor party candidates. In fact, the success of minor parties and their candidates rests not on the party label but instead on the visibility of the candidates. The cue works in the reverse of the way it operates for major parties candidates. Some examples provide appropriate illustration. In 1968, George Wallace ran as the candidate of the American Independent Party for president. As a highly visible individual, Wallace won 13.55% of the national popular vote. Four years later, the party nominee, John Schmitz, an obscure former California congressman, won 1.4% of the vote. It was Wallace rather than the party label that provided the cue for voters. More recently, Ross Perot fared better in 1992 running as an independent than he did in 1996 running as the nominee of the Reform Party. Again, success was linked to the varying popularity of the candidate not to the party label. If having the party label on the ballot were worth more in terms of electoral performance of their candidates, minor parties in Tennessee would undertake the effort of getting ballot access. In 2008 presidential election, for example, it made little difference in the percentage of vote minor party presidential candidates received in southern states whether they were running with a party label or as independents. Green, Constitution, and other minor party candidates in states received similar percentages of the vote regardless if the party label was present with the candidate name or the candidate was listed as an independent. Only when they were Write-in candidates, and their names not