GREEN PARTY OF TENNESSEE Constitution Party of Tennessee, Plaintiffs, v. Tre HARGETT in his official capacity as Tennessee Secretary of State, and Mark Goins in his official capacity as Coordinator of Elections for the State of Tennessee, Defendants, 882 F. Supp. 2d 959

MEMORANDUM WILLIAM J. HAYNES, JR., District Judge. TABLE OF CONTENTS A. Findings of Fact............................................................968 1. Plaintiffs...............................................................968 2. History of Minor Political Parties in Tennessee Elections..................969 3. Tennessee’s Current Ballot Access Process................................970 4. Parties’ Expert Proof....................................................976 a. Plaintiffs’ Expert................ 976 b. Defendants’ Experts.................................................978 B.

Conclusions of Law.........................................................986 1. Res Judicata and Collateral Estoppel .....................................990 2. Standing...............................................................992 3. First Amendment Claims................................................994 a. Tennessee’s Party membership Requirement..........................1000 b. The Primary Requirement..........................................1003 c. The 2.5% Signature Requirement....................................1005 d. The 119 Day Deadline...............................................1010 e.

The Majority Party’s Ballot Preference..............................1014 f. The Bar of “Nonpartisan or Independent” in Political Parties’ Names...........................................................1016 g. Plaintiffs’ Nondelegation Claim.....................................1017 h. Vagueness Claim...................................................1018 C.

Conclusion................................................................1019 Plaintiffs, Green Party of Tennessee (“GPT”), and Constitution Party of Tennessee (“CPT”), 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 Elections. Plaintiffs are political parties seeking recognition and ballot access for their candidates in federal and state elections.

The gravamen of Plaintiffs’ complaint is that certain provisions of Tennessee’s recently enacted ballot access statutes effectively exclude minor political parties from achieving recognition as a political party and ballot access for their candidates in violation of their First Amendment rights to vote, to express their political speech and to associate as a political party. Plaintiffs also assert a claim under the Equal Protection Clause of the Fourteenth Amendment for the State’s preferential placement of certain party’s candidates on the ballot.

Plaintiffs’ specific claims are: (1) that TenmCode Ann. §§ 2-5-101(a), 2-1-104(a)(24) and 2-3-107(

a) effectively deny Plaintiffs the ability to qualify as a “Recognized minor party” and impose impermissible burdens on Plaintiffs’ First Amendment right to associate as a political party; (2) that Tenn.Code Ann. § 2-l-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)(1) setting a 119 day deadline for minor political parties’ petitions for ballot access for its candidates, approximately four months prior to the primary, is unconstitutional as a matter of law; (4) that TenmCode Ann. § 2-13-202, requiring minority political parties to nominate then-candidates for statewide offices by primary elections, intrudes upon Plaintiffs’ First Amendment right to select their nominees and to control their internal affairs; and (5) that Tenn.Code Ann. § 2-5-208(d)(l), awarding a preferential position on the ballot to the current majority party, discriminates against Plaintiffs in violation of the Equal Protection Clause of the Fourteenth Amendment.

This action is a sequel to an earlier action, Libertarian Party of Tennessee v. Goins, 793 F.Supp.2d 1064 (M.D.Tenn.2010), holding that Tenn.Code Ann. § 2-1-104(a)(30) violates 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 concluded that Plaintiffs demonstrated that Tennessee’s 2.5% requirement in

Section 2-l-104(a)(29), 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, 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. Before the Court are the Plaintiffs’ motions for

summary judgment supported by their expert’s report contending, in sum: (1) that Tenn.Code Ann. § 2-1-104(a)(24) defining a “Recognized minor party” as a party supported by 2.5% of the voters in the last gubernatorial election, imposes impermissible burdens on Plaintiffs’ First Amendment right to associate as a political party; (2) that Tenn.Code Ann. § 2-1-104(a)(24), is unconstitutionally vague and constitutes an improper delegation of undefined authority to State election officials; (3) that Tenn.Code Ann. § 2 — 5—101(a)(1) setting a 119 day deadline prior to the August primaries for minor political parties’ petitions for recognition and ballot access for its candidates effectively excludes Plaintiffs and is unconstitutional as a matter of law; (4) that Tenn.Code Ann. § 2-13-107(

d) barring minor political parties from using the terms “Nonpartisan or Independent” in their party’s names violates Plaintiffs’ First Amendment rights of free speech; (5) that State election forms for candidates requiring signatories to a party nominee’s petition to declare that the signatories are members of that party violates Plaintiffs’ and voters’ First Amendment rights to privacy of political beliefs; and (6) that Tenn.Code Ann. § 2-5-208(d)(10), awarding preferential position on the ballot to the State’s majority political party, discriminates against Plaintiffs in violation of the Equal Protection Clause of the Fourteenth Amendment. (Docket Entry Nos. 19 and 20).

In response, Defendants submit affidavits of experts, as well as state and local election officials, contending that these state laws serve the following state interests: “(1) requiring potential candidates to show some minimum level of support of their candidacy by the electorate; (2) halting the waste and confusion that might otherwise result from a lack of that showing; (3) avoiding disruption of the ballot and election preparation process; (4) assuring honest elections; and (5) avoiding disruption of ongoing voter education, poll worker training, and impending responsibilities to assure ballot accuracy and timely distribution of absentee ballots.” (Docket Entry No. 36, Defendants’ Memorandum at 15).

Defendants also contend with the prior ruling in Goins that the res judicata doctrine precludes Plaintiffs’ challenge to the state law requiring political parties to select candidates for all statewide offices by primaries. Defendants’ experts opine, in essence, that Tennessee’s ballot access laws do not burden minor political parties’ ballot access and that the minor political parties’ poor political outcomes in Tennessee are the cause of their lack of ballot access.

According to defense experts, those outcomes show that ballot access for minor political parties’ efforts at party recognition are acts of political futility, not state laws. Defendants’ experts assert that America’s “winner takes all” election rules cause voters to engage in strategic voting and thereby elect candidates of either the Democratic or Republican party that eventually absorb minor political parties.

Finally, Defendants submit affidavits of state and local election officials on the practical needs and legal requirements to justify the time deadlines for petitions from minor political parties seeking recognition for its-candidates.

In reply, Plaintiffs assert, in essence: (1) that Defendants’ experts’ opinions and conclusions conflict with applicable court decisions; (2) that under the res judicata doctrine, Goins’ holding on the 120 day deadline for a minor political party’s petition for recognition as a statewide political party, precludes the defense of the 119 day deadline; (3) that Defendants’ experts fail to distinguish between candidate access and minor political party access; and (4) that the state and local officials’ affidavits are insufficient to justify the intrusions upon Plaintiffs’ rights under First and Fourteenth Amendments.

Plaintiffs filed motions for oral argument and an expedited ruling that the Court granted and set oral argument for January 9, 2012. (Docket Entry Nos. 32 and 33). Given the Defendants’ proof disputing that the state laws posed any burden for Plaintiffs, the Court ordered the Defendants to identify specific facts in their generic references to lengthy affidavits upon which they rely, given the requirements of Local Rule 56.01(c). On January 24, 2012, Defendants filed their response. (Docket Entry No. 44).

Based upon the facts and controlling legal authorities set forth below, the Court concludes that the provisions of the Tennessee ballot access statutes imposing the 2.5% signature requirement and the 119 day deadline prior to the August primary, alone and in combination, violate Plaintiffs’ and their members’ First Amendment rights to associate as a political party and Tennessee voters’ rights to the opportunity to vote for such parties.

The Court concludes that the State’s “Nomination Form” for minor political parties’ petitions requiring the signatory’s affirmation that he or she is a member of the party, violates Plaintiffs’ and the signatory’s First Amendment right of association and privacy of the signatory’s political beliefs. Further, the Court concludes that the State’s requirement 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.

In addition, Tenn.Code Ann. § 2-13-107(d), barring the words “Independent” and “Nonpartisan” in the name(

s) of political parties, violates new political parties’ and their members’ First Amendment rights of free speech. Tenn.Code Ann. § 2-l-104(a)(24) granting the State Coordinator of Elections authority to add to the requirements for a “Recognized minor party”, is unconstitutional as an improper delegation of legislative authority awarded under

Article 1,

Section 4 of the United States Constitution and for its impermissible vagueness. A. Findings of Fact 1. Plaintiffs a. GPT GPT was established in 1992-1993 and reconstituted in 1999-2000 with by-laws and rules for its nominating convention and Presidential candidate election. For nominating conventions, GPT’s by-laws require that for state-wide offices, nominating conventions must be at a minimum of one month prior to any and all related State candidate filing deadlines.

GPT membership requires “self-recognition and agreement to the Ten Key Values,” and members obtain voting rights by submitting a signed copy of the 10 Key Value pledge form. GPT has an email listserv, newsletters and correspondence with approximately 500 persons. GPT has never had a candidate for a state-wide office in Tennessee that has received at least five percent of the number of votes cast for all candidates in the most recent election for gubernatorial or other state-wide office. Thus, GPT cannot obtain recognition as a state-wide political party in Tennessee.

In 2000, Ralph Nader, GPT’s presidential candidate, received .95% of all votes, i.e. 19/781. GPT has had two presidential candidates since 2000, but those candidates were listed on the ballot as “Independent” candidates. Defendants note testimony that GPT has been unable to maintain “a core group together that went from election to election.” Goins, 793 F.Supp.2d at 1073 (quoting Docket Entry No. 21-8, Culver Deposition at 3). Defendants also cite a reference in 2006 that some GPT members expressed their view that GPT could attain 41,329 registered voters to submit for party recognition by 2006. b.

CPT CPT was established in 1992, but lacks a charter, by-laws, rules, records, formal registration of members, but considers persons on its mailing list to be members of the organization. CPT currently has 631 names on its mailing list. CPT does not maintain an office space or paid staff or have regular meetings, but may meet once every four years. Since 1992, CPT has endorsed a presidential candidate on the ballot in Tennessee, but as with Libertarian Party of Tennessee, its candidate was not identified on the ballot as a CPT candidate, but only as an independent candidate.

CPT has never had a candidate for a statewide office and thus, has been unable to meet the five percent threshold of the number of votes cast for all candidates in the most recent gubernatorial election. In mid-August 2001, State election officials accepted CPT’s petition that did not disclose whether the individuals signing the petition were CPT members. CPT does not maintain records of whether the person signing the petition was a CPT member. On September 6, 2001, CPT submitted 293 petition pages containing approximately 4200 signatures.

On November 2, 2001, CPT submitted another 345 petition pages containing approximately 5000 signatures. The State election officials do not have any record of any additional petition pages submitted by CPT after November 2, 2001. 2. 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 vote 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. CPT’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, 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 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.

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. 3. Tennessee’s Current Ballot Access Process The relevant statutes for Plaintiffs’ claims are quoted and reviewed infra, but in sum, political parties seeking ballot access for their candidates with the party’s name next to the candidate for any statewide office, must file their petition for ballot access as a “Statewide political party.” For a “Recognized minor party,” the deadline is the first Thursday in April of the election year, a 119 day deadline before the August primary.

A political party presenting a candidate for statewide office must also select its candidate in the August primary election. To qualify as a candidate for any state or statewide office without party affiliation or as an independent in the general election, Tennessee’s ballot access laws require the filing of a nominating petition signed by the candidate and twenty-five (25) or more registered voters who are eligible to vote to fill the office by the qualifying deadline, with the exception of independent Presidential candidates.

For Presidential candidates, Tennessee requires a petition to be signed by the candidate and twenty-five (25) or more registered voters for each 11 electors allocated to Tennessee (i.e., 275 signatures of registered voters) to be listed as an independent candidate. Tenn.Code Ann. § 2-5-101(b)(l). The current form of the “Nominating Petition” reads as follows: Nominating Petition For Prescribed by TCA § 2-5-102(a) (Docket Entry No. 20, Exhibit A thereto) (emphasis added).

Beth Henry-Robertson, Tennessee’s assistant coordinator of elections, describes the practical and legal requirements that Defendants cite to justify the State’s 119 day deadline prior to the August primaries. Pertinent portions of Robertson’s affidavit are repeated in the affidavits of state and two local election officials. In sum, Robertson cites the allocation of administrative duties among state and local election officials. State election officials verify that each signatory of a minor political party’s petition is a registered voter on the State’s computer database.

After state review, the petition is forwarded to local election officials who verify those signatures and addresses on the petition with local records and the addresses of the petition signatories. (Docket Entry No. 36-7 at 4-5 and Docket Entry No. 36-8 at 4). Robertson 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. 6. The deadline for candidates to qualify for the State and Federal Primary Election in August is noon on the first Thursday in April.

For the 2012 election year, that date is April 5, 2012. That is also the deadline for a political party to qualify as a recognized minor party. Under new laws passed by the Tennessee General Assembly this past legislative session, if a political party wants to qualify as a recognized minor party they have to file a petition containing a number of signatures of registered voters equal to 2.5% of the total number of votes cast in the last gubernatorial election by the first Thursday in April, the same deadline for candidates to qualify for the August election.

Our Office then has, thirty (30) days to verify the signatures and determine whether a political party has submitted enough valid signatures to obtain recognition as a “recognized minor party”. 7____ the State and county election offices need this time in order to get their absentee ballots printed and timely mailed out to military voters and perform all of the other tasks as discussed further herein. Prior to 2009, federal law required that military ballots be mailed out only thirty (30) days before the election.

In 2009, Congress passed the Military and Overseas Voters Empowerment Act (“MOVE”), 42 U.S.C. § 1973ff-l(8), which requires us to mail these ballots out no later than forty-five (45) days before the election. That deadline for the August 2012 election is June 18, 2012. Thus, with the current filing deadline of the first Thursday in April, there are approximately 51 business days between this filing deadline and the deadline on which military ballots must be mailed out.

In light of how long it takes for all of our 95 counties to get their paper ballots for absentee voting printed and prepared for mailing to military voters overseas in addition to all the other duties that our counties and this Office have to perform during this same time period, if that deadline were moved any later in the election cycle, many if not most of our counties would not be able to get their military ballots mailed out by the deadline mandated by federal law. 9. Specifically, with respect to the ballots, each county prepares the ballots for that county.

However, under state law, the counties have to wait until after the candidate withdrawal deadline before they can begin ballot preparation, which is the seventh (7th) day after the qualifying deadline. Tenn.Code Ann. § 2-5-204(b)(l). Thus, for the August 2012 election, the counties cannot start work on their ballot layouts until after April 13, 2012.

Further, if a political party submits a petition to obtain recognition as a recognized minor party, the counties will have to wait until after May 5, 2012 (the deadline for the State Election Office to determine if a political party has qualified as a recognized minor party) to begin the ballot layout process. 10. The counties have to prepare a ballot for each primary and for each type of system they use, e.g., paper ballots for absentee voting and machine ballots for Election Day and early voting.

Thus, for the August election each county has to prepare at least five (5) different ballots: paper ballot for the Republican Primary; paper ballot for the Democratic Primary; paper ballot for the August General; machine ballot for the Republican Primary; and machine ballot for the Democratic Primary (a machine ballot for the August General election is not required as the poll workers can simply lock a voter out of the primary races).

Obviously, if a political party qualifies as a recognized minor party, the counties will have to prepare two additional ballots — one paper and machine ballot for that party’s primary. 11. ... When the ballots come to our Office for approval, we have one employee who conducts the initial review of each ballot and then each ballot is double-checked by another employee. Depending upon the number of offices on the ballot, it takes on average about 20-30 minutes to conduct this review.

As noted, for the August election, each county will have to prepare at least five (5) ballots which means that our Office will have to review at least 475 ballots (5 ballots x 95 counties). If there are any municipal elections being held at the same time as the August election, the counties will also have to prepare and we will have to review those ballots, as well. Once a ballot has been approved, we then have to scan and send each approved ballot to the county and to their printer/vendor. In addition, we have to document for our records each ballot approval and notification to the counties.

This usually takes an additional 10-15 minutes, so that on average, the entire process for reviewing and approving ballots takes approximately 30-45 minutes for each ballot. 12. Once we have approved the ballots, the counties then have to get their paper ballots printed and their voting machines programmed and tested with the machine ballot. Many of our counties use the same printer to print their paper ballots. Indeed, it is my understanding ' that 60-70 of our counties use McQuiddy Printing Co., located here in Nashville, to print their paper ballots. 13.

Of course, before any of the ballots can be developed, printed and prepared for mailing to military voters, it has to be determined which candidates have qualified, and if necessary, if any political parties have qualified to be a recognized minor party by submitting petitions with the requisite number of valid signatures. Thus, this determination requires the State and counties to go through the process of verifying signatures on the petitions. Since voters’ permanent registration cards are maintained at the local (county) level, our Office does not do the actual verification of signatures.

Instead, we review the petitions, separate out the signatures pages by county and then forward them to the appropriate county election offices where the actual verification is conducted by those offices. In verifying signatures, the counties are required to follow the provisions of Tenn.Code Ann. § 2-1-107. Once the counties have finished reviewing and verifying signatures, they report back the total number of valid signatures and then we determine whether a party has enough valid signatures to qualify as a recognized minor party.

We have never had a political party submit a petition to qualify as a recognized minor party, so we do not know how long it would take for us to forward the signatures to the, counties for verification and how long it will take for the counties to respond to our request for the information; however, with the candidate petitions, which must have valid signatures from at least twenty-five registered voters, it usually takes us approximately one week after the qualifying deadline. 14.

This process of signature verification for both candidates and political parties will be significantly complicated during the 2012 year because this is a redistricting year. None of the 95 counties will begin the process of implementing the redistricting plan adopted by the General Assembly until after the March 6, 2012 Presidential Preference Primary.

This is a very time consuming process particularly for our larger counties and while the counties will be doing the actual implementation, we will spend a significant amount of time providing technical assistance to all 95 counties with respect to the redistricting procedures. Once each county has implemented the redistricting plan and prepared a map setting forth their new precincts, a copy of that map has to be filed with our Office.

In addition to making those maps available for inspection by the public, we have to take the information from each of the 95 county maps and update/revise the statewide precinct list. 15.....Although difficult to predict how much or how significant opposition will be to some of the precinct and polling place changes which our county election commission adopt, it must be noted that opposition does occur.

When opposition to the changes occur, our Office must take the time to explain the authority of the election commission to make the determinations involved in drawing new precinct lines and selecting new polling places. This responsibility may involve extensive time due to the various conversations and/or correspondence which must be addressed to those voters and/or candidates affected. Furthermore, it is anticipated that with redistricting there will be counties who may need additional voting machines to be leased for use during the August 2, 2012 election.

Our Office will assist counties in assessing the impact of the redistricting and drawing new precincts on the number of voting machines needed to meet the statutory requirements of Tenn.Code Ann. § 2-3-104 (which requires as nearly as possible having no more than one thousand (1,000) registered voters per voting machine). 16. We also spend a considerable amount of time assisting counties in determining the accessibility of polling places for voters with disabilities and in determining that polling places otherwise meet the requirements of Tenn.Code Ann. § 2-3-107.

Usually, we spend a couple of weeks assisting the counties with this task, however, because of redistricting; we anticipate that we may have to spend even more time in 2012 assisting the counties. 17. As I mentioned, this Office (and the county election offices) have other tasks and duties that we have to perform during this same time period that we are doing what is necessary to get the military ballots ready.

For example, we have to set up an electronic database of the state and federal candidates to assure that the names of the candidates who do qualify and the names of their offices appear the same in each county. This database is necessary in order for us to be able to ensure that the way candidates and offices are listed consistently, particularly in multi-county districts. The database is also necessary for us to have to use in approving the ballots when the counties send them in.

It usually takes approximately one (1) week for us to get this database completely established. 18. ... the Coordinator of Elections [is required] to conduct a training seminar for administrators, deputies and county election commissioners at least once a year and subsection (

b) of this statute requires that the Coordinator of Elections and the State Election Commission prepare and administer a written examination on election laws at least once a calendar year to any county election administrator seeking certification.... 19. Other employees in the Office are involved in actually writing, administrating and grading the certification exam for recently appointed Administrators. In past years, we have spent approximately two weeks in performing this task.

In addition, a considerable amount of time is spent preparing the materials to be presented to county election officials at the June Election Law Seminar (as required by TenmCode Ann. § 2-ll-201(18)(a)). We usually spend at least 2-3 weeks preparing and updating the materials for the seminar and then conducting the seminar in June. 21. ... our Office is also charged with administering and implementing the provisions of the Help American Vote Act (“HAVA”). Among other things, HAVA requires that each state maintain a statewide voter registration database. This database is maintained by our Office.

However, voter registrations and purges are all handled at the local (county) level. Thus, in order for us to maintain our statewide voter registration database, each county has to transmit to us on a daily basis voter registration and purge information so that we can update the database. In addition, we receive information on a regular basis from the State Department of Vital Records concerning deaths of registered voters, as well as information from the federal courts of the convictions of registered voters (counties receive this information from state courts).

These voters have to be purged both from the statewide database and from the local county election office’s permanent voter registration records [State election officials] spend a considerable amount of time advising election officials on the purge process set out in TenmCode Ann. § 2-2-106 and the 90-day deadline, as well as responding to questions from affected voters. 22. Additionally, while the voter registration records of convicted felons are purged upon conviction, state law does provide a process for a convicted felon to have his/her voting rights restored. See TenmCode Ann. § 2-2-139 and § 40-29-203(d).

This process requires that before a county administrator allows a convicted felon to become a registered voter, the administrator must verify with' my Office that the person is eligible to register to vote under TenmCode Ann. § 2-2-139. As such we are also spending time responding to inquiries from county administrators, convicted felons seeking to have their voting rights restored, and those officials who have the authority to complete the certificate of restoration form during this time period.

Additionally, it is our experience that in presidential election years, the number of convicted felons who seek to have their voting rights restored increases significantly. (Docket Entry No. 36-6 at 4-12). See also Docket Entry Nos. 36-8 and 36-7 for affidavits of local election officials from Davidson and Montgomery Counties. In Davidson County, it takes four and a half weeks 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, it takes his staff approximately two weeks to prepare the ballots and one week to print them and then 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, it takes two weeks to prepare military ballots for mailing after the ballots have been printed. (Docket Entry No. 36 at 20; Exhibit 7, Koelman Affidavit at ¶ 18).

Local election officials are bound by Tenn.Code Ann. § 2-1-107 in verifying signatures on these petitions. (Docket Entry No. 36-8 and 36-7 at 5). 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. The Green Party of the United States has 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 it 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 Tennessee laws at issue here 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, states 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, observes: “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). 4. Parties’ Expert Proof a.

Plaintiffs’ Expert In his report filed 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 east 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 opines 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 opines on the negative impact of the “Independent” label on a ballot for a candidate who is a member or nominee of a minority political party. 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). b.

Defendants’ Experts According to Donovan, one of the defense experts, Winger exaggerates the costs of signature collection given the use of volunteers. Donovan cites federal campaign laws and states accelerating their primary and caucusses 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 being. 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 pervious 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, 18-20) (footnotes omitted). Donovan also describes 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 east 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 longterm 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 justifies 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 requirements 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 uniformed 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 cites 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 challenges 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, opines 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 on the ballot at all, did minor party candidates receive noticeably fewer votes.

In some states minor party candidates for president in 2008 had to run write-in campaigns. That was not the case in Tennessee because of the minimal requirement for listing as an independent candidate. Ballot Structure If Tennessee elections used party ballots rather than office ballots, the plaintiffs might have a marginal argument about the importance of party label. But Tennessee has an “office” ballot, not a party ballot. Voters view candidates grouped by office on the ballot, not in party lists.

There is no single party lever, punch, or spot on the touch screen that allows voters to cast their vote for all the candidates of one party with a single action. Voters must vote for each office separately. This ballot structure greatly reduces the role of party label in voting and leads votes to focus more on candidates. It results in lower levels of straight party voting and greater frequency of split tickets. Campaigns in states with office ballots are more likely to be candidate driven rather than party driven.

With the growing use of direct primaries for candidate selection purposes, and especially in states with relatively open primary laws such as Tennessee, there is a strong incentive for potential minor party candidates to pursue major party nominations rather than to run as a minor party or independent candidates. In doing so, they can often change major party positions on issues, either by influencing other candidates in the major party primaries to alter their positions or by winning major party nominations. The major parties have very little protection against these minor party or other insurgents.

In 2010 Tea Party supporters decided to influence the issue positions of the Republican Party. By entering candidates Republican primaries, rather than running as minor party candidates, Tea Party supporters forced mainstream Republicans to adopt Tea Party issue positions and in other cases won Republican nominations with Tea Party backed candidates. The effect on Republicans in state legislatures and the U.S. Congress and on the field of candidates seeking the 2012 Republican presidential nomination has been marked. Some would argue that the Tea Party movement has captured the Republican Party.

The major parties have become so permeable that it is not unheard of for someone who holds positions that are so extreme as to be an embarrassment to the major party to win a major party nomination. In 2004 James L. Hart, a proponent of eugenics and other racist ideas, won the Republican nomination for the U.S. House of Representatives in Tennessee’s 8th CD. despite late efforts of Republicans disavowing him and running a write-in candidate in the primary. Republicans had to expend resources to prevent Hart from getting on the primary ballot in subsequent years.

He won over 25% of the vote in the general election in 2004. Unlike a minor party candidate, a label is very helpful to a major party candidate. That is why running for major party nominations rather than running as minor party candidates is a more effective way of influencing American elections. Even candidates who have been relatively successful competing as minor party candidates come to understand that seeking a major party nomination is a better alternative. In 1972, George Wallace chose to run for the Democratic presidential nomination rather than to run as a third party candidate as he did in 1968 ....

More recently, Ron Paul, a former Libertarian Party candidate for president, has contested for both the 2008 and 2012 Republican presidential nominations, minimally exposing a larger audience to his policy positions. In sum, other factors, not Tennessee’s requirement ballot access law, explain the absence of minor parties on the ballot. Tennessee law makes it nearly costless for candidates of any party or no party to get on the ballot.

Minor party candidates do not perform better when listed with a party label than as independents, and those disagreeing with the major parties’ positions can be more effective competing for major party nominations in primaries than investing in minor parties. (Docket Entry No. 36-12 at 2, 3-5) (emphasis added). Oppenheimer also opines that Tennessee’s 119 day deadline prior to the primary may actually assist minor political parties to meet the signature requirements for party recognition and that Tennessee’s primary requirement serves the public interest against party bosses’ selection of candidates.

Oppenheimer also discounts as baseless, concerns that major or other party members would vote in Plaintiffs’ primary election for Plaintiffs’ nominee. The Filing Deadline Before 1972 no presidential candidate had announced candidacy prior to a year before the general election. Now that would be considered too late to have a reasonable chance at a nomination. Candidates for the 2012 Republican presidential nomination had their first televised debate on May 5, 2011, a full eighteen months prior to the general election. The change is not restricted to presidential nominations.

The Tennessee Republican gubernatorial field was already well-established more than a year prior to the general election. Three of the four major candidates announced in early January of 2009, and the eventual Democratic nominee announced in April 2009. 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.

Even one of the plaintiffs in this case recognizes that the calendar for campaign activity starts far earlier now. The Constitution Party website announces that it 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. How can April be enough to nominate its candidates but too early for sufficient public interest to stimulate the gathering of names on a filing petition?

In fact, the requirement the April filing deadline may assist minor parties in their efforts to build support by getting them to contact voters sooner when major parties and their candidates are also actively engaged in organizing, raising money, getting media attention, and meeting with voters. Most of the arguments in favor of using primary elections rather than conventions or other means for the selection of candidates are as applicable to minor parties as they are to major parties.

The progressive reformers who pushed for the direct primary a little over a century ago argued that democratic principles are best served when participation in the selection of party candidates is open to the largest number of citizens rather than just party insiders. Conventions and caucuses involve only a relatively small number of people whom party bosses too frequently control. Thus, they end up selecting candidates that insiders favor and are not necessarily “popular” choices.

For individual citizens participation in conventions and caucuses is a far more costly undertaking than voting in primaries in terms of time commitment and transportation.... * * * The concern that major parties would undermine the candidate selection processes of minor parties if minor parties were required to have primary elections to select their candidates is lacking foundation in logic or fact. It is a classic “the monster is under the bed” fear.

There is no incentive for a major party to urge some of its members vote in a minor party primary and choose nominees who adhere to the positions of the major party rather than those of the minor party. That would only make the minor party candidates more attractive to voters who might otherwise support the candidates of the major party. In addition, such a scheme, if per chance it were successful, would expose the major party to extensive negative publicity. In fact, the plaintiffs’ provide no evidence of major parties actually undermining the primary election of a minor party.

Even if there were merit in this concern, it would be just as easy for a major party to undermine the nomination process of a minor party that used a convention to select its candidates. Id. at 6-7, 8 (emphasis added). According to Defendants, their experts agree that the causes of the lack of minor political parties’ ballot access in Tennessee are: “(1) plurality elections and single member constituencies ... (2) ease of ballot access for independent or non-major-party candidates ...

(3) Tennessee’s ‘office’ ballot [listing candidates in a columnar fashion for each office] ... (4) underlying political environment of the state ... and; (5) lack of underlying public interest in minor parties in the state.” (Docket Entry No. 36, Defendants’ Memorandum at 25) (citations to pages of experts’ reports omitted). In Defendants’ view, these factors preclude Tennessee ballot laws as unreasonable barriers to minor political parties’ ballot access. B. Conclusions of Law In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for

summary judgment: Rule 56(

c) of the Federal Rules of Civil Procedure provides that

summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. Id. at 247-48, 106 S.Ct. -2505 (emphasis in the original and added in part). Earlier the Supreme Court defined a “material fact” for Rule 56 purposes as “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). A motion for

summary judgment is to be considered after adequate time for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an affirmative showing of the need for additional discovery after the filing of a motion for

summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th Cir.1989). But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989). There is a certain framework in considering a

summary judgment motion as to the required showing of the respective parties as described by the Court in Celotex: Of course, á party seeking

summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact .... [W]e find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating _ the opponent’s claim. 477 U.S. at 323, 106 S.Ct. 2548 (emphasis deleted). As the Court of Appeals explained, “[t]he moving party bears the burden of satisfying Rule 56(

c) standards.” Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir.1986). The moving party’s burden is to show “clearly and convincingly” the absence of any genuine issues of material fact, Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir.1991) (quoting Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986)). “So long as the movant has met its initial burden of ‘demonstrat[ing] the absence of a genuine issue of material fact,’ the nonmoving party then ‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Emmons, 874 F.2d at 353 (quoting Celotex and Rule 56(e)).

Once the moving party meets its initial burden, the Court of Appeals warned that “[t]he respondent must adduce more than a scintilla of evidence to overcome the motion [and] ... must ‘present affirmative evidence in order to defeat a properly-supported motion for

summary judgment.’ ” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (citations omitted). See also Hutt v. Gibson Fiber Glass Products, 914 F.2d 790, 792 (6th Cir.1990) (“A court deciding a motion for

summary judgment must determine ‘whether the evidence presents a sufficient disagreement to require a submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.’ ”) (quoting Liberty Lobby). The Court of Appeals further explained the District Court’s role in evaluating the proof on a

summary judgment motion: A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim. Rule 56 contemplates a limited marshalling of evidence by the nonmoving party sufficient to establishing a genuine issue of material fact for trial. This marshalling of evidence, however, does not require the nonmoving party to “designate” facts by citing specific page numbers.

Designate means simply “to point out the location of.” Webster’s Third New InterNational Dictionary (1986). Of course, the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the nonmoving party relies; but that need for specificity must be balanced against a party’s need to be fairly apprised of how much specificity the district court requires. This notice can be adequately accomplished through a local court rule or a pretrial order. InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989).

In this district, the parties must provide specific references to the proof upon which they rely. See Local Rule 56.01(

c) requiring each party to provide a statement of undisputed facts to which the opposing party must respond. If both parties make their respective showings, the Court then determines if the material factual dispute is genuine, applying the governing law. More important for present purposes,

summary judgment will not lie if the dispute about a material fact is ‘genuine’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Progressing to the specific issue in this case, we are convinced that the inquiry involved in a ruling on a motion for

summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. If the defendant in a run-of-the-mill civil case moves for

summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict — “whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.’ Liberty Lobby, 477 U.S. at 248, 252, 106 S.Ct. 2505 (citation omitted and emphasis added). It is likewise true that: In ruling on a motion for

summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated. It has been stated that: “The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute. ...” Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation omitted). As the Court of Appeals stated, “[a]ll facts and infer

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