UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE GREEN PARTY OF TENNESSEE, Plaintiff, v.

TRE HARGETT, in his official capacity as Tennessee Secretary of State, and MARK GOINS, in his official capacity as Coordinator of Elections for the State of Tennessee, Defendants. ) ) ) ) ) ) ) ) ) ) )

No: 2:13-cv-224

MEMORANDUM OPINION AND ORDER This is an action brought by the Green Party of Tennessee (Green Party) against the Tennessee Secretary of State and Coordinator of Elections (defendants) for legal and equitable relief pursuant to 42 U.S.C. 1983 for violation of Plaintiffs [sic] rights under the First and Fourteenth Amendments of the United States Constitution. [Doc. 1, 1]. More

specifically, plaintiff seeks a declaration that the Tennessee Voter Identification Act, Tennessee Code Annotated 2-7-112(a)(1)(B) (Supp. 2012), and various other provisions of Tennessee election law are unconstitutional under both the United States and Tennessee Constitutions and/or violate the Help America Vote Act of 2002 (HAVA), 42 U.S.C. 15482, and the National Voter Registration Act (NVRA), 42 U.S.C. 1973gg, and an injunction to prevent their enforcement. Currently pending before the Court is defendants motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), [Doc. 4]. The plaintiff has responded, [Doc. 8], and defendants have replied, [Doc. 11].

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Although neither party requested oral argument on the motion, the Court determined that oral argument would be helpful in clarifying and possibly narrowing the issues before the Court. Oral argument was scheduled for December 2, 2013. The plaintiff appeared through counsel. Defendants did not appear.1 For the reasons which follow, the motion of defendants will be GRANTED. I. Plaintiffs allegations The Green Party is a self-described political organization . . . representing all citizens sharing the progressive political views associated with the Green Party. [Doc. 1, 3]. The defendants are Tre Hargett, Tennessee Secretary of State, and Mark Goins, Coordinator of Elections in the office of the Secretary of State. The Tennessee Voter Identification Act (the Act) was passed by the Tennessee General Assembly as Public Chapter 323 on May 20, 2011, and signed into law by the governor on May 30, 2011. The Act went into effect on January 1, 2012. The Act requires Tennessee voters to supply evidence of identification in order to cast a ballot in an election [t]o verify the voters identification. Tenn. Code Ann. 2-7-

112(a)(1)(B). A voters identification may be verified by presenting any one of a number of photographic identifications: (1) a Tennessee drivers license; (2) a valid identification card issued by the State of Tennessee or the United States except for a student identification card issued by an institution of higher education; (3) a valid identification card issued pursuant to Tennessee Code Annotated 55-50-336; (4) a valid United States Passport; (5) a valid photographic employee identification card issued by the State of Tennessee or the United States;

Although the Court was initially inclined to simply overrule the motion to dismiss because defendants did not appear at oral argument, the Court has chosen to decide the motion because of the threshold nature of the issues raised by the motion.
2

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(6) a valid United States military identification card; or (7) an employee identification card for retired state employees. Tenn. Code Ann. 2-7-112(c)(1) through (7). Several categories of voters are exempted from the requirement of providing evidence of identification, including any voter who is indigent and unable to obtain proof of identification without payment of a fee or who has a religious objection to being photographed, id. 2-7112(f); voters who are eligible to cast an absentee ballot, see id. 2-6-201 (2003 and Supp. 2012) (amended 2013); voters unable to vote in person because of being hospitalized within 20 days of an election, id. 2-6-401(a)(1), (D) (2003); and voters who are full time nursing home residents at a licensed nursing home, see id. 2-6-601 (2003 and supp. 2012). A person who attempts to vote but is unable to produce evidence of identification or is not exempted from the Act is permitted to cast a provisional ballot, which will be counted if the voter presents valid proof of identification by the close of business on the second day after the election. Id. 2-7112(c). A voter who is indigent or who has a religious objection to being photographed is required to execute an affidavit that the person is the same individual who is casting the ballot and is indigent or has a religious objection before being allowed to vote. Id. 2-7-112(f). Identification cards issued by a county or municipality are not evidence of identification for voting. Id. 2-7-112(g). Plaintiff states its claims for relief in five counts. In Count I, plaintiff alleges that the purpose of requiring voters to provide photo identification as a condition of in-person voting is to reduce/prevent voter fraud and that Tennessee has no empirical evidence of either in-person voter impersonation, that the Act will reduce such impersonation, any prior proven case of voter impersonation fraud, or that the requirements of the Act are necessary to achieve the objectives and purposes of the Act. While the photographic identification requirements of Tennessee Code

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Annotated 2-7-112 apply to in-person voting, persons voting by absentee ballot, which is a documented source of voter fraud, are not required to present photographic identification. The limitation on the forms of acceptable photographic identification are more restrictive than needed. The requirements of the Act burden the voting rights of 250,000 eligible voters.2 More than 100,000 Tennesseans have a valid driver license that does not have a photograph. Plaintiff alleges that the voter identification requirements of the Act are unconstitutional under both the United States and Tennessee Constitutions because they do not address a real problem, impose excessive burdens on voters, and are not necessary to achieve the States asserted objective. In Count II, the plaintiff alleges that the different statutory requirements for in-person and absentee voting bears no relationship to the asserted purpose of the Act; that the Act does not define the terms valid, religion, indigent, or affidavit; that the states failure to use all of the photo identification cards issued by any state increases the burden on voters; and that any form of photo identification is sufficient to achieve the purposes of the Act. Plaintiff complains that the Act does not exempt those who have an objection to being photographed based on a cultural belief and requires students who attend school in the county where they reside to show voter identification while those who attend school outside their county of residence may vote absentee. Since student identification cards are not an acceptable form of voter photo

identification, not all students have an acceptable form of voter identification and there is no rational basis for imposing different burdens on student voters based on geography. Likewise, plaintiff alleges there is no rational basis for allowing residents of licensed healthcare facilities not to vote in-person or show photographic identification while those who reside in unlicensed facilities are required to vote at the polls and show photo identification. Plaintiff alleges that

There is no indication in the complaint, or given by plaintiff at oral argument, of the source of this number. As a result, it appears to be speculative and nothing more than a conclusory statement.
4

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Tennessee Code Annotated 2-7-112(c)(3)-(7) and (f)(2) are unconstitutionally vague, rendering Tennessee Code Annotated 2-7-112 unconstitutional in its entirety, that 2-7-112s limits on classification of acceptable voter photographic identification are unrelated to the stated objectives of the Act and unconstitutional, and the disparate treatment of in-person and absentee voters creates classifications of voters unrelated to the stated objectives of the statute. In Count III, plaintiff claims that the requirements of 2-7-112 that voters lacking one of the other enumerated forms of valid photographic identification must obtain a photo identification card pursuant to Tennessee Code Annotated 55-50-336, which requires the person to produce a birth certificate, two proofs of Tennessee residency, and a social security number, places an unconstitutional burden on voters because a birth certificate does not establish the identity of the person presenting it, especially a voter whose name has been changed by marriage or other reason, has no relevance to voting rights, and some registered voters in Tennessee have never had a birth certificate. Three counties in Tennessee have no drivers services centers, the only place where photographic identification cards are issued pursuant to 55-50-336. Drivers service centers only open during normal business hours on Monday through Friday, and some voters do not have any transportation during those hours. While photo

identification cards are issued free of charge to persons who seek them for the purpose of voting, there is no similar provision for obtaining a birth certificate free of charge. Persons who acquire a photo identification card for the purpose of voting incur travel and other expenses, amounting to an unconstitutional constructive poll tax. Plaintiff also alleges in this Count that the provisional ballot provisions of the Act violate the provisions of HAVA when applied to a federal election because the Act does not fix a procedure for when or how a photo identification must be produced or the location of the place

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where it must be produced. It further alleges that the lack of any appeal from the rejection of a provisional ballot violates principles of due process and places an unconstitutional burden on voters. In Count IV, plaintiff alleges that voters can only declare their political party affiliation preferences by their vote since voters in Tennessee do not identify their party preference on their voter registration forms. Tennessees voter photo identification requirement is intended to, and operates to, suppress voting by minorities, students, persons of lower income or poverty and the elderly, all persons identified with the progressive political views of the Green Party. In this Count, plaintiff seeks a declaration that 2-7-112 is unconstitutional on grounds that it excessively impairs the freedom of associational rights of voters with progressive views. Finally, in Count V, plaintiff alleges that 2-2-141 provides that the Coordinator of Elections must require proof of citizenship for a voter to retain his/her voting rights, if there is evidence that a registered voter is not a United States citizen. The statute does not define evidence, giving the Coordinator of Elections unfettered discretion to determine when a registered voter must provide proof of citizenship. This, plaintiff asserts, makes the statute unconstitutionally vague and violates the NVRA. II. Standard of Review A. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal of a lawsuit for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Rule 8(a)(2) instructs that a pleading should be a short and plain statement of the claim showing that the pleader is entitled to relief. The purpose of a complaint is to give the defendant fair notice of what the plaintiffs claim is and the ground upon which it rests. Conley v. Gibson, 355 U.S. 41,

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47 (1957).1

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of [her] entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all the material elements of the claim. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Supreme Court explained that analysis under Rule 12(b)(6) requires a two-pronged approach. First, the reviewing court should determine what allegations within the complaint can be classified as legal conclusions and disregard them for purposes of deciding the motion. Id. at 678. Second, the court should evaluate the remaining portions of the complaint, i.e. the well-pleaded facts, and ascertain whether it gives rise to a plausible claim for relief. Id. at 679. At the second stage, the court must accept as true all of the factual allegations contained in the complaint, Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), and a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely. Twombly, 550 U.S. at 556. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678. B. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a motion to dismiss may either attack the claim of jurisdiction on its face, in which case all allegations of a plaintiff must be considered
Conley v. Gibson was abrogated by the Supreme Courts Twombly decision. The statement for which Conley is cited, however, remains good law.
1

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as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A facial attack questions merely the sufficiency of the pleadings.Gentek Bldg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). The defendants in this case advance a facial attack on the courts subject matter jurisdiction. In a facial attack, the basis of the challenge is not that the court does not actually have jurisdiction over the case, but rather that the plaintiff has failed to faithfully recite all the jurisdictional predicates necessary for the court to exercise subject matter jurisdiction over the matter. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). If based on a facial attack, a district court takes the allegations in the complaint as true, which is a similar safeguard employed under [Fed. R. Civ. P.] 12(b)(6) motions to dismiss. Gentek Bldg. Prods., Inc., 491 F.3d at 33 (citations omitted). If the plaintiffs allegations establish federal claims, jurisdiction exists. Id. In contrast, a party making a factual attack on subject matter jurisdiction challenges the actual existence of the courts jurisdiction-- a defect that may exist even though the complaint contains the formal allegations necessary to invoke jurisdiction. RMI Titanium, 78 F.3d at 1134. In this situation, the Court must weigh the evidence and the plaintiff has the burden of proving that the Court has jurisdiction over the subject matter. Golden, 410 F.3d at 881. III. Analysis and Discussion A. Tennessee Constitutional Claims

The plaintiff asserts claims in this case that the Tennessee Voter Identification Act violates Article I, Sec. 5 and Article IV, Sec. 1 of the Tennessee Constitution. The defendants

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rely largely on the recently decided case of City of Memphis v. Hargett, 414 S.W. 3d 88 (2013). In City of Memphis, decided after the complaint in this case was filed, the Tennessee Supreme Court held that the Act, both on its face and as applied, is constitutional under the Tennessee Constitution. At oral argument, plaintiff conceded that the Tennessee Supreme Courts holding is dispositive of its claims under the Tennessee Constitution and announced that it did not intend to pursue its claims of unconstitutionality under the Tennessee Constitution. All of plaintiffs state law claims under the Tennessee Constitution are therefore dismissed. B. Crawford v. Marion County Board of Elections

In Count I of plaintiffs complaint, plaintiff makes a broad claim that the Act is facially unconstitutional under the United States Constitution because it does not address a real problem, imposes excessive burdens on voters, and is not necessary to advance the States asserted objective, i.e., to reduce/prevent in-person voter impersonation fraud. [Doc. 1, 27, 45]. In Count IV, plaintiff claims that the Act is unconstitutional because its provisions excessively impair the freedom of association rights and voting rights of progressive voters, voters whose votes, according to plaintiff, the Act was principally enacted to suppress. In Crawford v. Marion County Election Board, 553 U.S. 181 (2008), the United States Supreme Court considered a constitutional challenge to an Indiana statute requiring citizens voting in-person to present photo identification issued by the government, a statute characterized by the defendants in this case as virtually identical to Tennessees Voter Identification Act. At issue in Crawford was Senate Enrolled Act 483, passed by the Indiana legislature in 2005. The Supreme Court described the Indiana statute as follows: Referred to as either the Voter ID Law or SEA 483, the statute applies to in-person voting at both primary and general elections. The requirement does not apply to absentee ballots submitted by mail, and the statute contains an exception for

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persons living and voting in a state-licensed facility such as a nursing home. Ind. Code Ann. 3-11-8-25.1(e) (West Supp. 2007). A voter who is indigent or has a religious objection to being photographed may cast a provisional ballot that will be counted only if she executes an appropriate affidavit before the circuit court clerk within 10 days following the election. 3-11.75-1, 3-11.7-5-2.5(c) (West 2006). A voter who has photo identification but is unable to present that identification on election day may file a provisional ballot that will be counted if she brings her photo identification to the circuit court clerks office within 10 days. 3-11.7-5-2.5(b). No photo identification is required in order to register to vote, and the State offers free photo identification to qualified voters able to establish their residence and identity. 9-24-16-10(b) (West Supp. 2007). Crawford, 553 U.S. at 185-86. The complaints in the case, as here, alleged that the Indiana law substantially violated the right to vote in violation of the Fourteenth Amendment and thus was neither a necessary, nor appropriate method of avoiding voter fraud. Id. at 187. The district court granted the

defendants motion for summary judgment, 458 F.Supp.2d 775 (S.D. Ind. 2006), and a divided panel of the Seventh Circuit affirmed. 472 F.3d 949 (7th Cir. 2007). The Supreme Court agreed that the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute. Crawford, 553 U.S. at 189. The Supreme Court also agreed with the Seventh Circuit that the Indiana Democratic party had standing to challenge the validity of the Act. Id. at fn. 7. The Supreme Court applied the balancing test of Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 405 U.S. 428 (1992), requiring a court evaluating a constitutional challenge to an election regulation to weigh the asserted injury to the right to vote against the precise interest put forth by the state for the burden imposed. Crawford, 553 U.S. at 189-90. Finding no question about the legitimacy or importance of the States interest in counting only the votes of eligible voters and the interest [of the State] in orderly administration and accurate

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recordkeeping, the Supreme Court held that the Indiana statute placed only a limited burden on voters rights and withstood a facial constitutional challenge. Id. at 196, 203. The Supreme Court held that, even absent specific evidence of in-person voter fraud, the general history of voter fraud and the risk that in-person voter fraud could affect the outcome of a close election was sufficient to support Indianas interest in deterring voter fraud. Id. at 195-96. Since the petitioners in Crawford, as here, advanced a broad constitutional attack that would invalidate the statute in all its applications, the Supreme Court noted that petitioners bear a heavy burden of persuasion. Crawford, 553 U.S. at 200 (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)). Justice Stevens, writing for the majority, summed up the courts holding: In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes excessively burdensome requirements on any class of voters. See Storer v. Brown, 415 U.S. 724, 738, 94 S. Ct. 1274, 39 L Ed. 2d 714 (1974). A facial challenge must fail where the statute has a plainly legitimate sweep Washington State Grange, 552 U.S., at ___, 128 S. Ct., at 1190 (quoting Washington v. Glucksberg, 521 U.S. 702, 739-740, and n.7, 1117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (STEVENS J., concurring in judgments)). When we consider only the statutes broad application to all Indiana voters we conclude that it imposes only a limited burden on voters rights. Burdick, 504 U.S., at 439, 112 S. Ct. 2059. The precise interests advanced by the State are therefore sufficient to defeat petitioners facial challenge to SEA 483. Id., at 434, 112 S. Ct. 2059. Crawford, 553 U.S. at 202. Plaintiff argues that the Act does not address a real problem. More specifically, plaintiff claims that there has been no case in Tennessee of proven voter impersonation fraud and that the state has no empirical data suggesting the existence of such fraud or that photo identification requirements will reduce in-person voter impersonation fraud. The defendants argue that the state is not required to prove that a problem exists before legislating to prevent or correct the

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problem. The defendants further argue that the state has an important interest in preventing election fraud and that photo identification is an acceptable method of doing so. The defendants suggest that Crawford is controlling precedent on these issues. The plaintiff responds that Crawford is not a controlling precedent in this case and is, in fact, irrelevant because plaintiff raises issues that were not decided in Crawford and that federal courts, including the Sixth Circuit, have held that proof of a problem is necessary to justify limitations on constitutional rights. Plaintiff attempts to distinguish Crawford, stating that the Supreme Court upheld the statute at issue because the courts examination of the statute as a whole did not record any other provisions that rendered the statute as a whole unconstitutional. [Doc. 8 at 10]. Further, plaintiff argues that the merits and value of the Crawford decision are rendered highly questionable by virtue of the basis on which [it] was decided, i.e., the balancing test of Anderson and Burdick, suggesting that the Supreme Court should have applied a strict scrutiny test. [Id. at 11]. If this court determines that strict scrutiny is applicable based on the specific facts of this case, plaintiff boldly asserts that Defendants authorities [i.e., Crawford] are irrelevant. [Id. at 12-13]. These broad arguments by plaintiff appear to be largely based on two more specific arguments made by plaintiff: (1) the somewhat circular argument, in response to defendants argument otherwise, that plaintiff is not contending that the Defendants must provide empirical evidence justifying the challenged statute but that [e]ven conceding that the State is not required to justify its statutes with empirical data, this principle has its limits, [id. at 13-14]; plaintiff then argues that the Sixth Circuit [ ] [has] held that evidence of a problem is necessary to justify limitations on constitutional rights--and especially First/Fourteenth Amendment rights, [id. at

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14] ; and (2) that Crawford is NOT relevant because the provisions of the Tennessee statute are nothing like the related provisions of the Indiana statute. [Id. at 15]. The Court agrees with defendants. Whether the plaintiff likes it or not, Crawford is the controlling legal precedent. Furthermore, plaintiffs effort to distinguish the Tennessee Voter Identification Act from the act at issue in Crawford is unpersuasive. While there are some differences between the two statutes, the Court agrees with defendants that they are virtually identical for the purpose of applying Crawford. None of the differences cited by plaintiff have any real constitutional significance. Furthermore, plaintiffs suggestion that the Crawford decision is rendered highly questionable by the Supreme Courts application of the Anderson-Burdick balancing test, rather than the strict scrutiny test which plaintiff argues is the correct standard of review, is likewise unpersuasive. Plaintiff acknowledges that the Supreme Court applied the Anderson-Burdick test in Crawford but argues it did so incorrectly because the appellants in Crawford did not preserve the issue, i.e., the appropriate standard of review, properly for appeal. The Supreme Court specifically noted its application of the stricter standard in its 1966 decision in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), in which Virginias requirement of a poll tax of $1.50 as a condition of the right to vote was declared unconstitutional, but further noted that [i]n later election cases we have followed Andersons balancing approach. Crawford, 553 U.S. at 189-90. The Supreme Court noted as well that Burdick had rejected the argument that strict scrutiny applies to all laws impairing a burden on the right to vote; but in its place, the court applied the flexible standard set forth in Anderson. Id. at 190 n. 8. Plaintiffs invitation to this district court to apply a strict scrutiny standard which the Supreme Court refused to apply is declined.

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Plaintiff makes several arguments related to the states need for empirical evidence of the existence of in-person voter impersonation fraud or that voter photo identification requirements will reduce in-person voter impersonation fraud. First, plaintiff, as noted above, makes the somewhat circular argument that it does not allege that Defendants have the burden or providing empirical evidence of a problem justifying the challenged statute. Rather, it claims that it only asserts that the state has no empirical evidence justifying the challenged statute. [Doc. 8 at 13]. Plaintiff then takes the completely contradictory position that numerous federal courts, including the Sixth Circuit, have held that evidence of a problem is necessary to justify limitations on constitutional rightsespecially First/Fourteenth Amendment rights. [Id. at 14].3 In any event, the Crawford decision is dispositive on this issue in the context of an election law case. The Crawford record contained no evidence of any [in-person voter

impersonation] fraud actually occurring in Indiana at any time in its history. Crawford, 555 U.S. at 194. Even so, the court found that flagrant examples of such fraud in other parts of the country have been documented throughout this Nations history by respected historians and journalists and Indianas own experience with absentee ballot fraud in a 2003 Democratic primary demonstrates that . . . the risk of voter fraud [is] real [and] that it would affect the outcome of a close election. Id. at 195-96. Plaintiffs allegations of Tennessees lack of empirical evidence of in-person fraud or that requiring photo identification will reduce it are irrelevant. (See id. at 196) (while the most effective method of preventing voter fraud may well be debatable, the propriety of doing so is perfectly clear.)).

Plaintiff cites two Supreme Court cases, Turner Broad Sys. V. FCC, 512 U.S. 622 (1994), and Glickman v. Wileman Bros. & Elliott, 521 U.S. 457 (1997), in support of this proposition. It is clear that Turner and Glickman were decided long before Crawford and, more importantly, not in an election law context. Likewise, Saieg v. City of Dearborn, 641 F.3d 727 (2011) was not an election law case and does not discuss the appropriate standard to be applied in an election law case.
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The Supreme Courts ultimate holding in Crawford dooms plaintiffs constitutional challenges in Counts I and in IV4 , so far as Court IV alleges that the Tennessee Act places an unconstitutional burden on voters rights. The Supreme Court, although taking judicial notice of the fact that the Indiana Act placed a somewhat heavier burden [ ] on a limited number of persons, id. at 199, found that when considered in terms of its broad application on all Indiana voters, it imposes only a limited burden on voters rights Id. at 203 (quoting Burdick, 504 U.S. at 439). The states interests, therefore, were sufficient to defeat petitioners facial

challenge to the Indiana law. Id. (quoting Burdick, 504 U.S. at 434). Crawford is, contrary to plaintiffs argument, relevant to this case and dispositive of plaintiffs constitutional challenge to the Tennessee Voter Identification Act. Plaintiffs freedom of association constitutional claim in Count IV also fails to state a claim, but for a different reason. Count IV claims that the Act impair[s] the freedom of associational rights . . . of progressive voters. [Doc. 1 at 115]. The Supreme Court has identified freedom of expressive association as a form of constitutionally--protected associational rights, arising as a necessary attendant to the Bill of Rights protection of individual liberties. See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). The right of expressive association is the First Amendment right to associate for the purpose of speaking. Rumsfeld v. Forum For Academic and Inst. Rights, Inc., 547 U.S. 47, 68 (2006); Miller v. City of Cincinnati, 622 F.3d 524, 537 (6th Cir. 2010). The right protects a groups membership

decisions and shields laws that make group membership less attractive without directly interfering in an organizations composition. Miller, 622 F.3d at 537. Plaintiff does not plead a cause of action for violating its rights to expressive association. The Green Party does not allege that the Act in any way interferes with its membership
4

At oral argument, plaintiff acknowledged that Count I is similar to the claims made by plaintiffs in Crawford.
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decisions; indeed, it concedes that it has no members. It makes no allegation that the law impairs its ability to express itself on issues or somehow makes group membership less desirable. U.S. Citizens Assn v. Sebelius, 705 F.3d 588, 600 (6th Cir. 2013) (quoting Rumsfeld, 547 U.S. at 69-70). The Act places no limitation on the Green Party at all and not only does not impair its membership decisions but also does not prevent it from identifying for associational purposes the progressive voters that it apparently targets. The Green Party clearly does not state a claim for violation of its own right to expressive association. Likewise, plaintiff does not state a claim on behalf of progressive voters either. Apart from the fact it does not have a standing to pursue such a claim, see infra, the complaint contains only a single conclusory allegation, i.e., that since voters do not identify their party affiliation on voter registration forms, they can only declare their party associational preference by their vote. [Doc. 1 at 109]. According to the complaint, the suppression of the votes of likeminded voters impairs the association rights of individual voters. [Id. at 110]. Apart from the conclusory nature of these allegations, they reveal that plaintiff is simply attempting to recast the allegations of Count I, i.e., that the Act burdens the constitutional right to vote, as a violation of a voters right to expressive association. C. Standing

As to the remaining counts/claims of plaintiffs complaint, the defendants assert that plaintiff lacks standing, either organizational or associational, to pursue them and they should be dismissed for lack of subject matter jurisdiction. Plaintiffs complaint is not a model of clarity with respect to its allegations concerning standing. Likewise, plaintiffs response to the motion to dismiss does not clearly indicate whether it is claiming organizational or associational standing with respect to each particular count of the complaint; however, the response generally

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claims that plaintiff has standing to sue in its own right, apparently as to all counts. At oral argument, however, plaintiff clarified its position and stated that it claims associational standing as to Counts I, II, III and V and organizational standing as to Court IV. 1. Legal Principles

A federal district courts subject matter jurisdiction is limited by Article III of the United States Constitution to actual Cases or Controversies. U. S. Const. Art. III, 2. Indeed, [n]o principle is more fundamental to the judiciarys proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. DiamlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (internal quotations omitted). In order to establish a case or controversy, a plaintiff must establish that it has standing to sue. Raines, 521 U.S. at 818. If a plaintiff cannot establish its standing, the claims must be dismissed for lack of subject matter jurisdiction. Loren v. Blue Cross & Blue Shield of Michigan, 505 F.3d 598, 607 (6th Cir. 2007). [T]o satisfy Article IIIs standing requirements, a plaintiff must show: (1) it has

suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Article IIIs standing requirements apply to associations or groups as well as to natural persons. An association may have standing to sue in two ways. First, an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. American Canoe Assn, Inc. v. City of

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Louisa Water & Sewer Commn., 389 F.3d 536, 544 (6th Cir. 2004) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). Second, an association may have standing to sue as a representative of its members. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organizations purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, 528 U.S. at 181 (citing Hunt v. Washington State Apple Adver. Commn, 432 U.S. 333, 343 (1977)). The individual participation of an organizations members is not normally necessary when an association seeks prospective or injunctive relief for its members. United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 (1996) (citing Hunt, 432 U.S. at 343). 2. Organizational Standing (Count IV)

As noted above, the only count where plaintiff asserts organizational standing is Count IV, which the Court has found not to state a claim. The only potential claim stated in Count IV, since the Green Party itself, of course, cannot cast a vote, is the claim that the Act somehow impairs the organizations right to freedom of association with progressive voters. In reality, however, it appears that plaintiffs complaint seeks to vindicate the associational rights of progressive voters, rather than any associational rights of the Green Party. This appears to be a claim of associational standing, not organizational standing. To the extent the Green Party does assert organizational standing, the Court need not address it in light of the dismissal of Count IV for failure to state a claim for relief upon which relief can be granted. To the extent the Green Party asserts associational standing, the same analysis employed below would apply to this claim as well.

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3.

Associational Standing

The defendants argue that plaintiff is obligated to allege facts sufficient to establish that one or more of [their] members has suffered, or is threatened with, an injury. [Doc. 5 at 16 (quoting Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 487 n.23 (1982))]. Defendants argue that plaintiffs complaint does not identify a single injured person, allege that one injured person is a member of the Green Party, and does not allege facts to establish actual or threatened harm to that member, falling far short of its burden to establish that it has associational standing under Article III. In its responsive brief, plaintiff says its members (in quotes in original) are progressive-leaning voters who are members of demographic groups most likely to be denied the right to vote by the Act. [Doc. 8 at 7]. In addition to this conclusory statement in his brief, plaintiff alleges in its complaint that the Green Party is a political organization . . . representing all citizens sharing [its] progressive political views, [Doc. 1, 13] (emphasis added), and described itself at oral argument as Democratlight. The Green Party argues that these allegations are sufficient to plead the relationship needed to show that the Green Partys members have standing to sue. Second, plaintiff claims that it has a stated purpose of promoting electoral participation by all citizens, [Doc. 8 at 7], and that the Act impairs that purpose. Finally, plaintiff argues that, since plaintiff does not seek redress for past injury, it need not identify as a plaintiff an individual who is likely to suffer injury, [id. at 8], relying on Florida State Conference of the NAACP v. Browning, 522 F.3d 1153, 1160-61 (11th Cir. 2008). At oral argument, plaintiff also cited Hunt and Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) for

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the proposition that it need not identify any member who has suffered past injury or any member likely to be injured in the future. Although the defendants only raise standing of plaintiff to pursue Counts I, III and V, the Court concludes that the Green Party has not pled sufficient facts to plausibly allege its standing, either organizational or associational, as to any of the counts of the complaint. Plaintiff has asserted that it has standing in its own right to seek judicial relief in this case, especially as to Count IV, regardless of whether any of its members have standing individually, because, unlike the major parties where platforms are issue focused, the Green Partys goals are to promote democracy and participation in the democratic process, promote respect for diversity, and the equal treatment of all persons. As its arguments go, when any individual citizens rights to effectively participate in the electoral process is frustrated, so too are the goals of the Green Party. As defendants point out, however, mere interest in a problem alone is insufficient to confer standing. Such a generalized claim of injury by itself, even if proved, is insufficient to support standing on a theory of injury to the Green Party itself. If such were the rule, the Green Party would have standing to sue over any issue of public concern in the name of promoting democracy and participation in the democratic process, which has a generally understood meaning far broader than just participation in the democratic process by voting. The need to establish a more particularized injury is illustrated by the Seventh Circuits treatment of the standing issue in Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), a treatment the United States Supreme Court left undisturbed and, indeed, approved. Crawford, 553 U.S. at 189, n.7. See

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Judge Posner, writing for the Seventh Circuit, found that the Democratic party had standing because the Indiana Voter ID law injured the party itself by compelling the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote, Crawford, 472 F.3d at 951 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)). Even though the Green Party makes a similar general reference in its brief to such injury, nowhere in plaintiffs complaint is it alleged that the challenged Tennessee statute will cause it to expend more of its time, money or resources, something it must do to plead an injury in fact. See Disability Rights Wisconsin, Inc. v. Walworth County Board of Supervisors, 522 F.3d 796 (7th Cir. 2008). In Havens, the Supreme Court held that an organization has standing to sue on its own behalf if the defendants illegal acts impair its ability to engage in its projects by forcing the organization to divert resources to counteract those illegal acts. Havens, 455 U.S. at 379.

This kind of injury, the court determined, was sufficiently concrete to be more than abstract social interest not cognizable as injury under Article III. Id. Plaintiff in this case has not pled the same kind of concrete injury; rather, it has pled injury to abstract social interests not cognizable under Article III. In other words, plaintiff has not alleged a personal stake, see Raines, 521 U.S. at 869, or an injury particularized to it. See Lujan, 504 U.S. at 560. Plaintiffs claim of representational/associational standing fares no better. Plaintiff

essentially sets out its argument that it has standing to bring suit on behalf of its members in three conclusory paragraphs of its brief, [see Doc. 8 at 6-7]. As noted above, plaintiff must establish three elements to show associational standing: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organizations purposes; and (c) neither the claims asserted nor the relief requested requires the

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participation of individual members in the lawsuit. Hunt, 432 U.S. at 343. Defendants argue that plaintiffs complaint is devoid of any factual allegations concerning plaintiffs members and whether any member meets the standing requirements to pursue the claims of the complaint. [Doc. 11 at 7]. The Court agrees. The Green Party admittedly has no identifiable members.5 It does not allege otherwise; it alleges only that it is a political organization . . . representing voters with progressive political views. Since Tennessee does not register voters by party affiliation, it is impossible to determine which individual voters have such progressive views. Furthermore, there have been two state wide elections since the effective date of the Act; nonetheless, plaintiff cannot identify a single voter who was prevented from voting by the Act, or is likely to be prevented from voting in the future, whose political views align with the progressive views of the Green Party. The only allegation made is that voters likely to be denied their voting rights . . . predominantly identify with the progressive end of the political spectrum represented by the Green Party. These allegations do not plausibly plead that any of plaintiffs members would have standing to sue in their own right. Apparently acknowledging its failure in this respect, plaintiff also argues that it need not show individual standing of a member, relying on Hunt, Sandusky and Florida State Conference of the NAACP for the proposition that it need not allege, or prove, that its individual members would have the right to sue in their own right since the relief sought is prospective only. None of these cases, however, stand for the proposition advanced by plaintiff. In Hunt, the Supreme Court considered a challenge to North Carolinas requirement that all apples sold, offered for sale, or shipped into the state in closed containers could bear only the applicable U.S. grade or standard of the apples on the outside of the shipping crate. 432 U.S. at
5

Plaintiff acknowledged at oral argument that it has no members.

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339. This requirement prohibited the Washington State Apple Advertising Commission (the Commission), a state agency, from tagging its apple crates bound for North Carolina with Washington States grade indicating a Washington origin. Id. The Court upheld the Commissions standing despite its formal status as a state agency, rather than a traditional voluntary membership organization. That status did not preclude the Commission from asserting the claims of the Washington apple growers and dealers forming its constituency. Id. at 334. The Court in Hunt adopted a functional approach to representative standing, considering the nature of the agency and its constituents to determine whether the Commissions constituencies were the functional equivalent of members. Id. at 344-45. It found that the Commission, for all practical purposes, performed the functions of a traditional trade association representing Washingtons apple industry. The Commissions primary purpose was to promote and protect the states apple industry. Through its market research and analysis, public education campaigns, and scientific research, the Commission served a specialized segment of Washingtons economic community, the primary beneficiary of its activities. Id. at 344. The Supreme Court found that the apple growers and dealers were not members of the Commission in the traditional sense but they nevertheless possessed all of the indicia of membership in an organization. Id. The growers and dealers alone elected members of the Commission and financed its activities through assessments they levied upon themselves. Id. at 344-45. The Court concluded that [i]n a very real sense, therefore, the Commission represents the States growers and dealers and provides the means by which they express their collective views and protect their collective interests. Id. at 345. Plaintiff reads far too much into the Supreme Courts holding in Hunt. Unlike the Commission, a state agency, the Green Party is not the functional equivalent of a membership

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organization that represents the states progressive voters and provides the means by which they express their collective views and protect their collective interests, nor does it allege otherwise. In fact, Hunt reinforces the general rule for representational standing, adding to representational standing jurisprudence only the concept of a functional approach to determining representational standing. This case does not present a case where the interests of the Green Partys non-member constituencies are sufficiently close to its claimed constituency, progressive voters, to allow the Green Party to sue on their behalf. No allegations in plaintiffs complaint suggest that progressive voters possess sufficient indicia of membership to be the functional equivalent of members. There is no allegation that such voters look to the Green Party to express their collective views, that the Green Party performs the function of a traditional trade association, or that any voter pays membership dues or contributes to the expenses of the Green Party. Sandusky involved a challenge by a county Democratic party, the Ohio Democratic Party, and three labor unions to a directive issued by the Ohio Secretary of State concerning the casting of provisional ballots by voters who presented themselves to vote at the wrong precinct in violation of HAVA. Applying accepted principles of representational standing, the Sixth Circuit found that the plaintiffs had standing to assert the rights of their members who will vote in the November 2004 elections. 387 F.3d at 574. Although the plaintiffs had not identified specific voters who would seek to vote at the wrong precinct, the Sixth Circuit found it inevitable that such mistakes would occur given the nature of precinct voting; i.e., the requirement that voters vote in a particular precinct. Thus, the Sixth Circuit found the issues raised not speculative or remote; they are real and imminent. Id. The Sixth Circuits opinion did not discuss whether the Democratic party or labor unions have members, appearing instead to assume that some of

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the plaintiffs members would be harmed by mistakes at the polls. Here, the Green Party, as noted above, acknowledges that it has no members, the alleged injury is far more speculative and remote, and the voters denied the ability to vote (except by provisional ballot) by lack of a valid photo identification, albeit unidentified, are simply alleged to be voters who predominantly identify with a particular political point of view, not that they would specifically identify with the views of the Green Party. Sandusky does not help plaintiff. Finally, in the Eleventh Circuit case of NAACP v. Browning, organizations representing racial and ethnic minority communities brought an action challenging Floridas voter registration statute. The Eleventh Circuit held that plaintiffs had made a sufficient showing that they will suffer a concrete injury because they averred that they would be required to divert personnel and time educating volunteers and voters on compliance with the statute and resolving problems of voters left off the registration rolls on election day, 522 F.3d at 1165-66, the very same type of allegation of injury that the Seventh Circuit and Supreme Court found sufficient in Crawford. Importantly as far as its application to this case, the organizational plaintiff had around 20,000 members statewide, leading to the Eleventh Circuits conclusion that it was not conjecture, but rather foreseeable and expected, that at least one member faces a realistic danger of having his or her application rejected. Id. at 1163 (emphasis added). As noted throughout this

memorandum, the Green Party has no members and injury to at least one member is not alleged to be foreseeable and expected. Rather than supporting plaintiffs position in this case, NAACP actually stands for the opposite proposition and the Green Partys reliance on the case is misplaced.

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Accordingly, plaintiff has failed to plead facts which would establish the requisite standing, either for plaintiff itself or on behalf of its constituency, and Counts II, III and V will be dismissed for lack of subject matter jurisdiction. IV. Conclusion

For the reasons set forth herein, defendants motion to dismiss is GRANTED. Counts I and IV are dismissed with prejudice. Counts II, III and V are dismissed without prejudice. So ordered. A separate judgment will enter.
s/J. RONNIE GREER UNITED STATES DISTRICT JUDGE

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