MEMORANDUM
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 TenmCode 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.
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 partfies]” 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 TenmCode 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 TenmCode 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, See. I.
In their motions for summary judgment (Docket Entry Nos. 18 and 19), Plaintiffs argue, in sum: (1) that TenmCode Ann. § 2-l-104(a)(24)’s 2.5% signature requirement to secure the status of a “Recognized
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
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,
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 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—10T(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 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; and
that Tennessee’s ballot preference statute listing all candidates in the order of majority party, minority party and recognized minority party violated the Equal Protection Clause
Id. at 967-68. On Plaintiffs’ ballot preference statute claims, the Court directed the Defendants to conduct a random public drawing to determine the order of the parties’ candidates on ballots for the November 2012 general election. 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
After remand, the parties’ filed cross motions for summary judgment and in Green Party of Tennessee v. Hargett,
B. The Current Controversy
1. Findings of Fact
For this current controversy, the Court incorporates by reference its earlier factual findings on the history of minor political parties ballot access in Tennessee and the effects of Tennessee ballot laws on that access. Green Party II,
For the current controversy, according to Plaintiffs, despite the Court’s prior decision granting each Plaintiffs ballot status as a “Recognized minor party” for its candidates in the 2012 elections, TenmCode Ann. § 2 — 13—107(f) (2012) now operates to divest Plaintiffs of that status based on the 2012 election results. Because Plaintiffs’ candidates did not receive at least 5% of the total vote in the 2012 election to qualify as “Statewide political party”, Plaintiffs lost their right to continued ballot access. Plaintiffs also lost their status as a “Recognized minor party”. Prior to 2011, Tennessee recognized only one type of political entity, a “statewide political party” that was entitled to continued ballot access for its candidates, provided their candidates received 5% of the total vote in the general election. Prior to 2011, any new party that satisfied the petition signature requirements of Tenn.Code Ann. § 2-1-104(a)(30)(B)
... 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, state its name, and contain the names of registered voters from a single county
(emphasis added).
Applying constitutional precedents and proof of Plaintiffs’ prior signature campaigns, this Court granted Plaintiffs “Recognized minor party” status in Green Party II. Thereafter, the Tennessee General Assembly amended Tenn.Code Ann. § 2-13 — 107(f)
(f) If a petition filed pursuant to this section is determined to be sufficient by the coordinator of elections pursuant to subsection (b), such party shall be recognized as a minor party for all remaining primary and general elections in the current election year. To maintain recognition beyond the current election year, a minor party must meet the requirements of a statewide political party as defined in Section 2-1-104. A “Recognized political party” who fails to meet such requirements shall cease to be a “Recognized political party”. Such party may regain recognition only by following the procedures for formation of a “Recognized political party”. The coordinator of elections shall advise each county election commission of a “Recognized political party’s” failure to receive a sufficient number of votes and shall order that said party cease to be recognized.
(emphasis added). Tennessee Code Annotated § 2-l-104(a)(31) defines a “statewide political party” as “[a] political party at least one (1) of whose candidates for an
According to Plaintiffs, the Defendants have consistently refused to acknowledge this Court’s ruling that each Plaintiff satisfied the requirements for a “Recognized minor party”. Yet, Defendants listed Plaintiffs’ names next to the names of their candidates on the 2012 election ballot. In any event, Plaintiffs assert without dispute that Defendants refused to recognize them as “Recognized minor parties]” until after the Sixth Circuit denied their motion for a stay on August 9, 2012. Green Party of Tennessee,
Plaintiffs note that Tenn.Code Ann. 2-13 — 107(f) expressly requires the coordinator of elections to notify each county election commission of a “Recognized minor party” ‘s failure to receive a sufficient number of votes in the general election and to order that the affected minor party shall cease to be recognized. Plaintiffs cite this statute’s lack of any provision requiring prior notice and the opportunity to be heard on their loss of their status as a “Recognized minor party”, as a due process violation.
C. Conclusions of Law
1. Facial vs. As Applied Challenge
As a threshold issue, Defendants characterize Plaintiffs’ current challenge to Tennessee’s minor party ballot-access and retention statutes, Tenn.Code Ann. §§ 2-1-104(a)(24) and (31) as well as 2 — 13—107(f), as a “facial challenge” (Docket Entry No. 23 Defendants’ Response at 3). To be sure, “a facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully,” United States v. Salerno,
To ignore the history of this litigation and the facts that were the bases for this Court’s prior rulings, is unrealistic, imprudent and contrary to applicable law. 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 help
2. Plaintiffs’ First and Fourteenth Amendment Claims
For their motions for summary judgment, Plaintiffs argue that based upon this Court’s prior factual findings, rulings and precedents cited therein, Tenn.Code Ann. § 2-l-104(a)(24)’s requirement of 2.5% signature requirement for status as a “Recognized minor party” is unconstitutional. Plaintiffs also contend that the combined effects of Tenn.Code Ann. § 2-13 — 107(f) and Tenn.Code Ann. § 2-1-104(a)(24) impose an unconstitutional burden on Plaintiffs’ First and Fourteenth to secure ballot access for their candidates as “Recognized minor part[ies]” Upon disqualification by Section 2 — 13—1087(f), Plaintiffs are required to satisfy the same 2.5% requirement in Section 2-1-104(24) that this Court held to be unconstitutional. Plaintiffs further assert that such laws lack any legitimate State purpose and render their achievement of Section’s 2-13-107(f) requirement of 5% of the total vote to qualify as a “Statewide political party” for continued ballot access, virtually impossible. Plaintiffs contend that Tennessee is the only state that gives a newly recognized political party only one election year to qualify for continued ballot access. Plaintiffs describe Section 2-13-107(0 as depriving them of their property rights acquired under the Court’s earlier rulings without due process of law.
In defense of Tenn.Code Ann §§ 2-1-104(24) and 2-13-107(0, the Defendants rely on Jenness v. Fortson,
As to the standards for evaluating Plaintiffs’ constitutional challenges to State ballot access laws:
[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group.” Anderson,460 U.S. at 793 ,103 S.Ct. 1564 . Strict scrutiny applies if the state law “burdens the rights of political parties and their members.” Eu v. San Francisco County Democratic Cent Committee,489 U.S. 214 , 222,109 S.Ct. 1013 ,103 L.Ed.2d 271 (1989). “To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, [the Court has] called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation.” Norman v. Reed,502 U.S. 279 , 288-89,112 S.Ct. 698 ,116 L.Ed.2d 711 (1992) (emphasis added).Yet, “minor barriers between voter and party do not compel strict scrutiny.” Blackwell, 462 F.3d at 604 (citing Bullock v. Carter,405 U.S. 134 , 143,92 S.Ct. 849 ,31 L.Ed.2d 92 (1972)). Although state voting regulations “are not automatically subjected to heightened scrutiny,” id. at 585, the Sixth Circuit cited decisions of district courts in this Circuit and other Circuits ... [that] applied the “strict scrutiny” standard to similar ballot access laws setting percentages and deadlines for recognition of minor political parties. Id. at 590-91.
Green Party I,
The First and Fourteenth Amendments establish “[t]he right of citizens to create and develop new political parties”. Norman v. Reed,
For more than two decades, this Court has recognized the constitutional right of citizens to create and develop new political parties. The right derives from the First and Fourteenth Amendments and advances the constitutional interest of like-minded voters to gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express their own political preferences To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, we have called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation, and we have accordingly required any severe restriction to be narrowly drawn to advance a state interest of compelling importance.
Norman,
In this analysis, the Sixth Circuit cautioned that “the State may not be a ‘wholly independent or neutral arbiter’ as it is controlled by the political parties in power, ‘which presumably have an incentive to shape the rules of the electoral game to their own benefit.’ ” Blackwell,
In the initial party recognition decision in Williams, the Supreme Court observed: “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
Here, Plaintiffs cite Norman where the Supreme Court described their First and Fourteenth Amendments rights to include “[t]he right of citizens to create and develop new political parties”
In a more recent decision, Timmons v. Twin Cities Area New Party,
Here, as a factual matter, prior to 2012, Plaintiffs had been unsuccessful in securing ballot access for their parties’ candidates with their parties’ names. By Court Order, Plaintiffs’ candidates were on the Tennessee ballot for the 2012 election, but by virtue of Section 2-13-107(f), Plaintiffs are now ineligible for continued ballot access for their candidates’ failures to secure 5% of the total vote in the 2012 election. This result occurs notwithstanding that Section 2-l-104(a)(31) affords “statewide political parties” “the past four (4) calendar years” to meet this 5% requirement. (Emphasis added). By operation of the Tennessee ballot access statutes, Plaintiffs were not afforded the opportunity of the three calendar years prior to the 2012 election, to run a candidate with his or her party name, who could secure 5% of the vote. To retain ballot access, in just one election, Plaintiffs had to secure 5% of the total vote in the 2012 election. As this Court previously found on this 5% requirement:
In 2000 with the “Fair Ballot Access Act of 2000,” the Tennessee legislature authorized ballot access for the 2000 presidential election for candidates who polled 5,000 votes for the presidential race in 1996. Qualifying candidates could have their political party’s name printed next to their names on the November 2000 ballot. After the 2000 election, a non-statewide political party’s name could be listed next to the name of its presidential candidate, if that party’s candidate received at least 5% of the votes in Tennessee’s last presidential election. Tenn.Code Ann. § 2-5-208(d)(l). In the 2000 presidential election, presidential candidates of the Libertarian, Reform, and Green parties had their respective party name next to their candidates’ names, but their candidates were still listed on the election ballot under an “Independent” heading. Since the 2000 general election, Tennessee and Oklahoma are the only states in which only the Democratic and Republican parties have appeared on the election ballots.
Green Party I,
Applying Williams and consistent with TenmCode Ann. § 2 — 1—104(a)(31) for “statewide political parties, Plaintiffs, as “[n]ew 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”
Without this conclusion, to regain their stature as a “Recognized minor party” after the 2012 election, Section 2-1-104(24) requires each Plaintiff to collect voter signatures totaling 2.5% of the voters in the last gubernatorial election. This is the same 2.5% signature requirement that this Court found to produce exclusionary effects for minor political parties and to be unconstitutional under White, and other precedents.
Under Tennessee 2011 amendments, to satisfy the petition requirements for a “Recognized minor party” in Tenn.Code Ann. § 2-l-104(a)(24), Plaintiffs must collect 2.5% of the votes in the last gubernatorial election that undisputedly translates to 40,039 valid signatures of registered voters. Plaintiffs note that only five states have a higher petition signature requirement than Tennessee, and except for Alaska, those States’ populations far exceed Tennessee’s population. Plaintiffs also contend that the rule of thumb is that Plaintiffs must actually collect between 1.5-1.75 times the minimum number of signatures required to assure compliance with a state laws. Thus, Plaintiffs assert that as minor parties, Plaintiffs must actually collect in excess of 60,000 signatures for state recognition and ballot access for its candidates. Plaintiffs’ proof is that to collect the necessary signatures, minor parties party must utilize paid persons to collect signatures at market cost ofbetween $1.50-2.00 per signature yielding $120,000 in costs to meet Tennessee’s 2.5% requirement. (Docket Entry No. 20, Winger Report at 29). This amount depletes Plaintiffs’ resources for its electoral activities. Although the Defendants dispute this amount, the Court does not deem this dispute a material factual dispute in light of the applicable law. As to the requested percentage of signatures, the Defendants cite and as the Court observed in Goins, multiple decisions of the Supreme Court and Circuit courts upholding as high as five percent (5%) of the total vote for political party recognition and ballot access as constitutional. See e.g., American Party of Texas, 415 U.S. at 789 ,94 S.Ct. 1296 (“Demanding signatures equal in number to 3% or 5% of the vote in the last election is not invalid on its face”); Storer,415 U.S. at 739-40 ,94 S.Ct. 1274 (5% requirement not facially unconstitutional); Jenness v. Fortson,403 U.S. 431 , 438-39,91 S.Ct. 1970 ,29 L.Ed.2d 554 (1971) (upholding Georgia statute requiring signatures of 5% of registered voters before independent candidates could be placed on ballot). To be sure, other circuits have upheld higher percentage requirements. Cartwright v. Barnes,304 F.3d 1138 , 1141-42 (11th Cir.2002) (reaffirming constitutionality of Georgia 5% signature requirement); Rainbow Coalition of Okla. v. Oklahoma State Election Bd.,844 F.2d 740 , 741-42, 744 (10th Cir.1988) (upholding Oklahoma statute requiring signatures of 5% of the number of votes cast in the most recent election)
Other Circuits have upheld state laws requiring 2% to 3% of the total vote for ballot access as a recognized political party. Swanson v. Worley,490 F.3d 894 , 905 (11th Cir.2007) (upholding Alabama statute requiring independent candidates obtain signatures of 3% of vote in last gubernatorial election); Rogers v. Corbett,468 F.3d 188 , 195 (3rd Cir.2006) (uphold Pennsylvania statutes requiring candidate of minor political party obtain signatures of 2% of vote in last election); Libertarian Party of Florida v. Florida,710 F.2d 790 , 792-95 (11th Cir.1983) (upholding Florida statute requiring minor party candidate obtain signatures of 3% of all registered voters to appear on general election ballot). The Court agrees that for a facial challenge, the 2.5% requirement alone is a reasonable state regulation for the reasons set forth by the esteemed late jurist William M. Leech, sitting as Special Justice in Tennessee Libertarian Party v. Democratic Party,555 S.W.2d 102 , 103-05 (Tenn. 1977). Goins focused on the percentage requirement of this statute and prior case law. Unlike in Goins, Defendants present empirical evidence from their experts that must be considered.
Here, citing empirical evidence, Defendants’ experts opine, in essence, that for Plaintiffs, as minor political parties, to obtain significant voter support in Tennessee, is an act of political futility. In American Party of Texas where minority candidates had to obtain 1% of the vote for governor at last general election,415 U.S. at 782 ,94 S.Ct. 1296 , the Court stated: “what is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot,”415 U.S. at 783 ,94 S.Ct. 1296 . Yet, aside from mere percentages, the Court deems probative that in American Party of Texas, the Supreme Court stated: “The District Court recognized that any fixed percentage requirement is necessarily arbitrary, but we agree with it that the required measure ofsupport — 1% of the vote for governor in the last general election and in this instance 22,000 signatures — falls within the outer boundaries of support the State may require before according political parties ballot position.” 415 U.S. at 783 ,94 S.Ct. 1296 (emphasis added). Here, Tennessee far exceeds this outer limit of 22,000 signatures in American Party of Texas. Given the significantly higher 2 million voters in Texas, Tennessee’s outer limit should be significantly lesser than 22,000.
In Blackwell, Ohio’s political party registration signature requirement was one percent of the total vote cast in the previous election or 30,000 signatures. The Sixth Circuit observed that: “The evidence in the record shows that in Ohio, elections have indeed been monopolized by two parties, and thus, the burdens imposed by the state’s election laws are ‘far from remote.’ ... Ohio is among the most restrictive, if not the most restrictive, state in granting minor parties access to the ballot. Of the eight most populous states, Ohio has had by far the fewest minor political parties on its general election ballot.’ ”462 F.3d at 589 (citing California Democratic Party v. Jones,530 U.S. 567 , 578,120 S.Ct. 2402 ,147 L.Ed.2d 502 (2000)).
This empirical proof from Plaintiffs’ and Defendants’ experts converts Plaintiffs’ challenge into or resembles an “as applied” challenge. The Defendants also submitted proof beyond historical facts. The Defendants’ expert proof cites electoral outcomes for minor political parties in other States and Tennessee’s electoral outcomes for minor political parties that show lesser support for minor political parties in Tennessee than in other States. With the “Winner take All” electoral rule, Defendants’ experts opine that Plaintiffs face political futility in gathering the voter support to meet Tennessee’s 40,039 signature requirement. Plaintiffs’ expert opinion was that based upon Tennessee’s historical record, minor political parties’ prospect for success of obtaining recognition as a state-wide political party in Tennessee is ‘“impossible, or virtually impossible.’” Goins,793 F.Supp.2d at 1073 (quoting Docket Entry No. 25-3, Plaintiffs’ Amended Expert Report at 7).
Thus, these undisputed facts satisfy the Court that Tennessee 2.5% signature requirement to be a “Recognized minor party”, that requires 40,039 signatures of registered voters, in its effects, constitutes an undue and impermissible burden upon Plaintiffs’ First Amendment rights to associate as minor political parties and to secure ballot access for their candidates for whom Tennessee voters would have the opportunity to vote.
Green Party I,
After one election, this Tennessee statute, alone and in combination with Tenn. Code Ann. § 2-13-107(f), produces the effect that Plaintiffs are “foreclosed” within the meaning of Norman and Timmons, from ballot access to “develop” their parties and their candidates. Applying Williams, White and Norman, the Court concludes that these ballot access statutes unduly burden Plaintiffs’ First and Fourteenth Amendment rights to create and develop their political parties by imposing unreasonable regulations for ballot access upon Plaintiffs as minor political parties.
As to the Defendants’ reliance on Jenness and White, Jenness involved Georgia election laws that created “political parties” and “political bodies” and established a two tiered ballot access system.
In White, the Supreme Court upheld a Texas ballot access system under which to gain ballot access, the political party’s candidates had to secure the signatures of 1% of the total votes cast in the prior gubernatorial election, but to retain ballot access for future elections, the political party had to receive 2% of the total vote in the last general election.
To be sure, in Timmons, the Supreme Court stated that a State may enact laws that “favor the traditional two party system” and that “States also have a strong interest in the stability of their political systems”, but the Court also stated that “[t]his interest does not permit a State to completely insulate the two-party system from minor parties’ or independent candidates’ competition and influence”.
Based upon these precedents and the facts on Plaintiffs’ and other minor political parties’ ballot access in Tennessee, the Court concludes that the provisions of Tenn.Code Ann. §§ 2-1-104(24), 2-1-104(31) and 2 — 13—107(f), alone and in combination, effectively foreclose Plaintiffs’ rights under the First and Fourteenth Amendment to “create and develop new political parties” in Tennessee. Norman,
Plaintiffs’ procedural and substantive due process claims are that without notice or an opportunity to be heard, Tenn.Code Ann. 2-13-107(f) deprives Plaintiffs of their property interests in their status as “Recognized political parties]”. Plaintiffs state that this status was awarded by Court Order and constitutes a property right. Procedural due process generally requires that the State provide a person with notice and an opportunity to be heard before depriving that person of a property or liberty interest. Thompson v. Ashe,
As applied here, both White and Jenness illustrate that ballot status can be revoked by state statutes without prior notice and opportunity to be heard. White and Jenness also allow a higher voter percentage requirement for continued ballot access. Thus, the Court does not discern a procedural or substantive due process claim in this statutory setting for the deprivation of any property interest based upon Plaintiffs’ court ordered status as a “Recognized minor party”. The Court’s ruling grants Plaintiffs the opportunity to develop a political party and that ruling renders these due process claims moot. Plaintiffs will be entitled to the same ballot access, as Tennessee law and history, afforded to statewide political parties.
3. Plaintiffs’ Equal Protection Claim
Plaintiffs’ next claim is that Tenn.Code Ann. § 2-13-107(f) violates the Equal Pro
“The Equal Protection Clause provides that ‘all persons similarly situated should be treated alike.’ ” City of Cleburne v. Cleburne Living Center,
Under current law, “statewide political parties” have four calendar years to establish their entitlement to retain their ballot-qualified status for their candidates; but Plaintiffs, as “Recognized minor parties]” had only one election year in which to qualify as a “statewide political party”, a status that historically, Plaintiffs have been unable to achieve in Tennessee. Plaintiffs assert that this statutory scheme is an obvious attempt to increase the burdens on minor parties, such as Plaintiffs. In any event, the Court finds that Tenn Code Ann. §§ 2-l-104(a)(31) and 2-13-107(f) impose unequal time burdens that are not politically neutral in terms of the period of time allowed to qualify for continued ballot access. Thus, the Court concludes that Plaintiffs should be awarded summary judgment on their equal protection claims.
4. Defendants’ Defense of Tenn.Code Ann. § 2-1-114
Finally, Plaintiffs assert that: “Tenn. Code Ann. § 2-1-114 unconstitutionally impairs the free speech rights of Plaintiffs” (Docket Entry No. 1, Complaint at
No political party may have nominees on a ballot or exercise any of the rights of political parties under this title until its officers have filed ... [a]n affidavit under oath that it does not advocate the overthrow of local, state or national government by force or violence and that it is not affiliated with any organization which does advocate such a policy ...
Plaintiffs also cite Art. I, Sec. 1 of the Tennessee Constitution that:
“... all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.”
(emphasis added). Defendants assert that Plaintiffs lack standing to challenge the constitutionality of Tenn.Code Ann. § 2-1-114 or alternatively that the Democratic and Republican parties have submitted such affidavits. Defendants argue that the State constitution cannot be a ground for relief on Plaintiffs’ federal claims.
As to the Defendants’ standing contention, election laws fall under the “capable of repetition, yet evading review” exception to the mootness doctrine. Norman,
As to the merits of this claim, in Communist Party of Indiana v. Whitcomb,
“no existing or newly-organized political party or organization shall be permitted on or to have the names of its candidates printed on the ballot used at any election until it has filed an affidavit, by its officers, under oath, that it does not advocate the overthrow of local, state or national government by force or violence”.
Id. at 442-43,
In a unanimous opinion, the Supreme Court held this statute unconstitutional reasoning that:
“ ‘(L)ater decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States,367 U.S. 290 , 297-298,81 S.Ct. 1517 , 1520-1521,6 L.Ed.2d 836 (1961), ‘the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.’ ” ... A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States,354 U.S. 298 ,77 S.Ct. 1064 ,1 L.Ed.2d 1356 (1957) ....’ Id. at 447-448,89 S.Ct. at 1829 .
This principle that ‘the constitutional guarantees of free speech and free pressdo not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’ has been applied not only to statutes that directly forbid or proscribe advocacy.
Id. at 448,
Based upon Whitcomb, the Court concludes that to compel Plaintiffs’ compliance with Tenn.Code Ann. § 2-1-114 would violate Plaintiffs’ First Amendment rights. To be sure, there is not any proof that Plaintiffs advocate such ideas or that the Defendants enforce this statute, but the chilling effect of such a statute warrants this ruling. Yet, the Court agrees with the Defendants that Tennessee’s constitutional provision cited by Plaintiffs cannot be the basis for federal relief in a Section 1983 action.
For these collective reasons, the Court concludes that the Plaintiffs’ motions for summary judgment should be granted to declare Tenn.Code Ann. §§ 2-l-104(a)(24), 2-l-104(a)(31) and 2-13-107(f) unconstitutional under Supreme Court precedents on Plaintiffs’ rights under the First and Fourteenth Amendment to create and develop their political parties. The Court further concludes that these statutes also operate to deny Plaintiffs their rights under the Equal Protection Clause by denying Plaintiffs equal access to the ballot as afforded “statewide political parties”. In addition, under Supreme Court precedent, Tenn. Code Ann. § 2-1-114 is unconstitutional under the First Amendment as a violation of Plaintiffs’ rights of free speech.
ORDER
In accordance with the Memorandum filed herewith, Plaintiffs’ motions for summary judgment (Docket Entry Nos. 18 and 19) are GRANTED and the Defendants’ motion for partial summary judgment is DENIED. Plaintiffs Green Party of Tennessee and Constitution Party of Tennessee are AWARDED a judgment that as applied to Plaintiffs, TenmCode Ann. §§ 2-l-104(a)(24), 2-l-104(a)(31) and 2-13 — 107(f) are unconstitutional as violations of Plaintiffs’ rights under the First and Fourteenth Amendment to create and develop their political parties and as a violation of Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment to equal access to the ballot as afforded major political parties. Plaintiffs are further AWARDED a judgment that Tenn.Code Ann. § 2-1-114 is unconstitutional as a violation of Plaintiffs’ rights to free speech under the First Amendment
Accordingly, the Defendants are ORDERED to grant Plaintiffs ballot access for their candidates with the respective party names, for elections for at least three calendar years from the November 2012 election
It is so ORDERED.
This is the Final Order in this action.
Entered this the_day of March, 2014
An appropriate Order is filed herewith.
Notes
. Art. I, Sec. 1 of the Tennessee Constitution provides that "... all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.” (emphasis underscored by Plaintiffs).
. This section is a modified version of the earlier description of these actions in Green Party of Tennessee v. Hargett,
. The reference to the 120 day deadline is derived from the holding in Libertarian Party of Ohio v. Blackwell,
.Before 2011, Tennessee statutes did not set the deadline for filing petitions for recognition as a statewide political party. The State Election Coordinator set the deadline. Goins,
. In this action, the Defendants also sought a stay, arguing that the Court's ruling that the 2.5% requirement is unconstitutional is on appeal. Yet, even if reversed, the Court must still consider the 2.5% statute in combination with the other statutes. Blackwell,
. As the Supreme Court observed in an election controversy, the historical record of political parties' participation in elections is relevant as "[pjast experience will be a helpful, if not always an unerring, guide.” Storer v. Brown,
. Tenn.Code Ann. § 2-l-104(a)(30)(B) was later repealed and its requirements are in newly enacted Tenn.Code Ann. § 2-1-104(a)(24).
. As originally enacted, Tenn.Code Ann. § 2-13-107(f) did not specify a time frame within which a minor party had to satisfy the requirements to become a “statewide political party”.
. The Court incorporates by reference its pri- or analysis of summary judgment principles. Green Party I,
. As stated earlier, because these statutes set percentages for ballot access, the Court concluded that the strict scrutiny standard applies. Supra at 781-82, citing Blackwell,
. "Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot be channeled into the programs of our two major political parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted.... The absence of such voices would be a symptom of grave illness in our society.” Sweezy,