Green Party of Georgia et al v. State of Georgia et al

Filing 35

ORDER denying Plaintiffs' 7 Motion for Summary Judgment or Alternatively for a Preliminary Injunction. Signed by Judge Richard W. Story on 5/19/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GREEN PARTY OF GEORGIA
and CONSTITUTION PARTY OF
GEORGIA,
Plaintiffs,
v.
BRIAN KEMP, Georgia Secretary
of State,
Defendant.

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CIVIL ACTION NO.
1:12-CV-01822-RWS

ORDER
This case comes before the Court on remand from the Eleventh Circuit
Court of Appeals. After its consideration of the Eleventh Circuit’s decision, as
well as its review of the parties’ briefs and the evidence of record, the Court
enters the following Order.
Background
Plaintiffs are the Green Party of Georgia (“Green Party”) and the
Constitution Party of Georgia (“Constitution Party”). They challenge O.C.G.A.
§ 21-2-170, which requires a candidate from a political body seeking inclusion
on an election ballot for an office that is voted upon statewide to obtain

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signatures in a nominating petition from at least one percent of the registered
voters eligible to vote in the last election. Currently before the Court on a
motion for summary judgment, Plaintiffs seek a declaration that this provision
unconstitutionally burdens Plaintiffs’ rights under the First and Fourteenth
Amendments.
Under Georgia law, a “political party” is any political organization
whose candidate received 20 percent of the votes cast in the preceding
gubernatorial or presidential election. O.C.G.A. § 21-2-2(25). A candidate
may appear on Georgia’s election ballot if he or she is nominated in a primary
conducted by a political party. O.C.G.A. § 21-2-130(1).
But independent candidates and candidates representing “political
bodies” may appear on the election ballot as well. Georgia law provides that
such a candidate may access the ballot if he or she submits a nomination
petition signed by a specified percentage of voters (one percent for a
presidential election). O.C.G.A. § 21-2-170(b).
Plaintiffs filed the present action asserting that each is a political
organization or “body” registered under O.C.G.A. § 21-2-110 and § 21-2-113
“desiring to be a qualified party for the purposes of having its candidate put on
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the 2012 Presidential Ballot in Georgia.” (Compl., Dkt. [1] ¶3.) Each of the
Plaintiffs alleges that it “meets all the statutory requirements to place its
presidential candidate on the ballot except for the petition requirements of
O.C.G.A. § 21-2-170.” (Id.) Plaintiffs allege that “[t]hese signature
requirements are in excess of those that satisfy constitutional standards and
unduly infringe upon the constitutional rights of the Plaintiffs to participate in
the electoral process.” (Compl., Dkt. [1] ¶18.) Thus, Plaintiffs ask this Court
to declare this statutory scheme unconstitutional and order “that the Plaintiffs
be placed on the 2012 Presidential Ballot in Georgia.” (Id. at 5.)
I.

Procedural Background
The Court dismissed Plaintiffs’ Complaint on July 17, 2012, concluding

that because higher courts have held that the requirement under O.C.G.A. § 212-170 for a petition containing at least five percent of the registered voters for
certain elections was not unconstitutional, the requirement that a petition
contain one percent of the registered voters would not be unconstitutional.
(Dkt. [4].) Plaintiffs moved for reconsideration, which the Court similarly
denied, relying on Supreme Court and Eleventh Circuit precedent in Jenness v.
Fortson, 403 U.S. 431 (1971); Cartwright v. Barnes, 304 F.3d 1138 (11th Cir.
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2002); and Coffield v. Kemp, 599 F.3d 1276 (11th Cir. 2010) to again conclude
that Georgia’s ballot petition requirements were not unconstitutional and that
therefore Plaintiffs had not stated a claim upon which relief may be granted.
Plaintiffs appealed to the United States Court of Appeals for the
Eleventh Circuit. On January 6, 2014, the Court of Appeals reversed and
remanded, holding that this Court employed the type of “litmus-paper test” that
the Supreme Court rejected in Anderson v. Celebrezze, 460 U.S. 780, 789
(1983), and directing this Court to instead apply Anderson’s balancing
approach. Green Party of Ga. v. Georgia, No. 13-11816, 551 F. App’x 982
(11th Cir. 2014). The Court of Appeals further held that this Court erred in
dismissing Plaintiffs’ action because past decisions “do not foreclose the
parties’ right to present the evidence necessary to undertake the balancing
approach outlined in Anderson.” Id. (citing Bergland v. Harris, 767 F.2d 1551,
1554 (11th Cir. 1985).1
II.

Factual Background
The following facts are taken from the affidavits submitted in support of
1

The Court of Appeals also directed this Court to dismiss the action against
the State of Georgia for lack of jurisdiction, on grounds of Eleventh Amendment
immunity. The Court did so in its Order dated May 6, 2014. (Dkt. [24].)
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Plaintiffs’ Motion for Summary Judgment or Alternatively for a Preliminary
Injunction [7] (“Plaintiffs’ Motion for Summary Judgment”),2 Defendant’s
Response to Plaintiff’s Motion for Summary Judgment [29] (“Defendant’s
Response”), and Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’
Motion for Summary Judgement [34] (“Plaintiffs’ Reply”).
Each Plaintiff is a political organization or “body” registered under
O.C.G.A. § 21-2-110 and § 21-2-113 and “meets all the statutory requirements
to place its presidential candidate on the ballot except for the petition
requirements of O.C.G.A. § 21-2-170.” (Pls.’ Statement of Material Facts on
Motion for Summary Judgment or Alternatively Motion for a Preliminary
Injunction (“Pls.’ SOMF”), Dkt. [8] ¶ 1-2; Esco Aff., Dkt. [7-1]; Haag Aff.,
Dkt. [7-2].)
Defendant Brian Kemp is Georgia’s Secretary of State. (Pls.’ SOMF,
Dkt. [8] ¶ 3.) Under O.C.G.A. § 21-2-50, the Secretary of State is charged with
significant duties related to the regulation and supervision of the elections
2

Plaintiffs’ motion is styled Motion for Summary Judgment or Alternatively
Motion for a Preliminary Injunction [7]. Plaintiffs also filed a Motion to Expedite
Proceedings [6] to allow them to participate in the 2012 general election. The motions
to expedite and for preliminary relief are moot. Therefore, the Court now considers
Plaintiffs’ motion as one for summary judgment seeking permanent injunctive relief.
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process in Georgia.
Georgia’s election code was updated to its current version in 1986. (Pl.’s
SOMF, Dkt. [8] ¶ 8.) Since the passage of that code section, Ross Perot
qualified as an independent presidential candidate in 1992 and 1996, as did Pat
Buchanan in 2000. (Id.; Def.’s Resp. to Pls.’ SOMF, Dkt. [30] ¶ 8.) Plaintiffs
have sought to be included on the State of Georgia’s presidential ballot in the
2012 and prior elections. Neither Plaintiff nor any other “minor party,”
however, has qualified a presidential candidate for statewide ballot access by
petition since Mr. Buchanan in 2000. (Pls.’ SOMF, Dkt. [8] ¶ 8.)
While Plaintiffs’ candidates have been unable to access the ballot in
Georgia, both the Green Party and the Constitution Party’s candidates have
been included on other states’ ballots. For example, the Constitution Party’s
presidential candidates appeared on the ballot in 41 states in a year where its
candidate was not included on the Georgia ballot. (Favorito Aff., Dkt. [7-3] ¶ 2
(explaining that in 1996, the Constitution Party’s candidate was denied ballot
access despite collecting over 60,000 signatures).) Additionally, the Green
Party’s ranks have included “roughly 150 publicly elected officials” at any one
time. (Esco Aff., Dkt. [7-1] ¶ 7 (stating that in 2012, the Green Party had 133
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elected officials from 22 states and the District of Columbia).) The Green Party
has also achieved some success with its presidential candidate, Ralph Nader,
who was listed on 46 state ballots and won nearly three percent of the popular
vote nationally in 2000. (Id. ¶ 11.)
As an alternative to the petition procedure for independent candidates set
forth in O.C.G.A. § 21-2-170, Georgia law provides that a registered political
body may place a candidate on the ballot by nomination at its convention
through one of two avenues. O.C.G.A. § 21-2-180. First, a registered political
bodies may file a petition for ballot access through convention with the
Secretary of State. This petition must be signed by a number of registered
voters equal to one percent of the voters who were registered and eligible to
vote in the preceding general election. O.C.G.A. § 21-2-180(1). Second, a
political body may place a candidate on the ballot by nomination at its
convention if the political body received votes equal to one percent of the total
number of registered voters eligible to vote in that election. O.C.G.A. § 21-2180(2).3 The Libertarian Party has accessed the ballot in this way on various
3

Plaintiffs’ request for relief from this Court focuses primarily on the petition
requirements found in O.C.G.A. § 21-2-170. But to the extent relevant, the Court
considers the entire statutory scheme.
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occasions. (Ford Aff., Dkt. [29-1] ¶¶ 6, 9.) Plaintiffs, however, claim that this
provision makes it “impossible” for political bodies such as themselves to
alternatively qualify and therefore leaves nomination by petition under
O.C.G.A. § 21-2-170 or O.C.G.A. § 21-2-180(1) as Plaintiffs’ only viable
avenue to access the ballot. (Pls.’ SOMF, Dkt. [8] ¶ 7.) In support of their
contention that nomination petitions are their only workable means of ballot
access, Plaintiffs claim that the State does not accurately tally write-in votes
(id.), hindering third party or independent candidates from reaching the
threshold of one percent of actual votes that would allow a political body
“automatic access” under O.C.G.A. § 21-2-180(2).
Now, using Anderson’s balancing test as directed by the Court of
Appeals, the Court considers Plaintiffs’ Motion for Summary Judgment.
Discussion
III.

Public Support Requirements
Before turning to the parties’ arguments, the Court first discusses public

support requirements for ballot access.
Candidate eligibility requirements implicate basic constitutional rights
under the First and Fourteenth Amendments. Anderson, 460 U.S. at 786. “It
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is beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due
Process Clause of the Fourteenth Amendment, which embraces freedom of
speech.” Nat’l Ass’n for Advancement of Colored People v. State of Ala. ex
rel. Patterson, 357 U.S. 449, 460 (1958). The Supreme Court has explained
that “strands of ‘liberty’” are interwoven through questions of ballot access:
In the present situation the state laws place burdens on two
different, although overlapping, kinds of rights—the right of
individuals to associate for the advancement of political
beliefs, and the right of qualified voters, regardless of their
political persuasion, to cast their votes effectively. Both of
these rights, of course, rank among our most precious
freedoms. We have repeatedly held that freedom of association
is protected by the First Amendment. And of course this
freedom protected against federal encroachment by the First
Amendment is entitled under the Fourteenth Amendment to the
same protection from infringement by the States.
Williams v. Rhodes, 393 U.S. 23, 30-31 (1968).
The candidates who appear on the ballot are crucial to the voters’
exercise of those First and Fourteenth Amendment rights. “[V]oters can assert
their preferences only through candidates or parties or both.” Anderson, 460
U.S. at 787. “It is to be expected that a voter hopes to find on the ballot a
candidate who comes near to reflecting his policy preferences on contemporary
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issues.” Lubin v. Panish, 415 U.S. 709, 716 (1974).
Third-party and independent candidates play an important role in the
voter’s exercise of her rights. “The right to vote is ‘heavily burdened’ if that
vote may be cast only for major-party candidates at a time when other parties or
other candidates are ‘clamoring for a place on the ballot.’ ” Anderson, 460
U.S. at 787 (internal citations omitted). “The exclusion of candidates also
burdens voters’ freedom of association, because an election campaign is an
effective platform for the expression of views on the issues of the day, and a
candidate serves as a rallying-point for like-minded citizens.” Id.
However, the important role played by candidates representing parties or
political bodies outside the two major parties does not grant those candidates
unfettered access to ballots. Anderson, 460 U.S. at 788 (“not all restrictions
imposed by the States on candidates’ eligibility for the ballot impose
constitutionally-suspect burdens on voters’ rights to associate or to choose
among candidates”); Storer v. Brown, 415 U.S. 724, 730 (1974) (“as a practical
matter, there must be a substantial regulation of elections if they are to be fair
and honest and if some sort of order, rather than chaos, is to accompany the
democratic process”). Accordingly, states have enacted comprehensive and
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complex statutory schemes governing elections. Each provision of a state’s
election code “inevitably affects–at least to some degree–the individual’s right
to vote and his right to associate with others for political ends.” Anderson, 460
U.S. at 788. These restrictions are, however, generally permissible in light of
the state’s important regulatory interests, so long as they are reasonable and
non-discriminatory. Id.
Many states, including Georgia, require prospective third-party or
independent candidates to demonstrate that they enjoy some public support.
These requirements further the state’s interest in creating an efficient and
transparent election process. See Jenness v. Fortson, 403 U.S. 431, 442 (1971)
(“There is surely an important state interest in requiring some preliminary
showing of a significant modicum of support before printing the name of a
political organization's candidate on the ballot—the interest, if no other, in
avoiding confusion, deception, and even frustration of the democratic process
at the general election.”).
Plaintiffs claim here that Georgia’s requirements place an impermissibly
high burden on political bodies seeking to place a candidate on the state’s
ballot. The Court now considers whether the State’s statutory scheme strikes
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an appropriate and constitutional balance between limiting voter confusion and
allowing “new political voices within its borders.” Id.
IV.

Legal Standard - Summary Judgment
Federal Rule of Civil Procedure 56 requires that summary judgment be

granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” “The moving
party bears ‘the initial responsibility of informing the . . . 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.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the
moving party makes such a showing, the burden shifts to the non-movant, who
must go beyond the pleadings and present affirmative evidence to show that a
genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
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of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences that are
reasonable. “Where 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.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
V.

Analysis - Plaintiffs’ Motion for Summary Judgment [7]
Plaintiffs allege that O.C.G.A. § 21-2-170’s signature requirements “are
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in excess of those that satisfy constitutional standards and unduly infringe upon
the constitutional rights of the Plaintiffs to participate in the electoral process.”
(Compl., [1] ¶ 18.) Section 21-2-170(b) provides:
A nomination petition of a candidate seeking an
office which is voted upon state wide shall be signed
by a number of voters equal to 1 percent of the total
number of registered voters eligible to vote in the last
election for the filling of the office the candidate is
seeking and the signers of such petition shall be
registered and eligible to vote in the election at which
such candidate seeks to be elected.
Plaintiffs further allege that the “State of Georgia makes it impossible for
political bodies to alternatively qualify under O.C.G.A. [§] 21-2-180(2) . . .
because the State does not tally the write-in votes accurately, leaving it up to
the counties who usually do not tally the write-in votes.” (Compl., Dkt. [1]
¶ 19.) Under O.C.G.A. § 21-2-180:
Any political body which is duly registered [under §]
21-2-110 is qualified to nominate candidates for statewide public office by convention if:
(1) The political body files with the Secretary of State
a petition signed by voters equal in number to 1
percent of the registered voters who were registered
and eligible to vote in the preceding general election;
or

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(2) At the preceding general election, the political
body nominated a candidate for state-wide office and
such candidate received a number of votes equal to 1
percent of the total number of registered voters who
were registered and eligible to vote in such general
election.
Plaintiffs seek summary judgment that this scheme violates the First and
Fourteenth Amendments to the United States Constitution.
The Eleventh Circuit instructed the Court to evaluate Plaintiffs’ claim
under the balancing approach in Anderson v. Celebrezze, 460 U.S. 780 (1983).
In that case, John Anderson, an independent candidate for president, met all of
Ohio’s substantive requirements for having his name placed on the ballot for
the general election, but he was unable to participate because the filing
deadline for candidates had passed. The question presented to the Supreme
Court was whether Ohio’s early filing deadline for statements of candidacy
placed an unconstitutional burden on the voting and associational rights of
Anderson’s supporters.
In Anderson, the Supreme Court recognized that the direct impact of
Ohio’s filing deadline fell on candidates for office, but also noted that the law
burdened voters’ constitutional rights to associate for the advancement of their

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political beliefs and to cast their votes effectively. 460 U.S. at 787. The
Supreme Court stated: “Our primary concern is with the tendency of ballot
access restrictions to limit the field of candidates from which voters might
choose. Therefore, in approaching candidate restrictions, it is essential to
examine in a realistic light the extent and nature of their impact on voters.” Id.
at 786.
However, the Anderson court cautioned: “Although these rights of voters
are fundamental, not all restrictions imposed by the States on candidates’
eligibility for the ballot impose constitutionally-suspect burdens on voters’
rights to associate or to choose among candidates.” Id. at 788. “[A]s a
practical matter, there must be a substantial regulation of elections if they are to
be fair and honest and if some sort of order, rather than chaos, is to accompany
the democratic processes.” Id. (internal quotations and citation omitted).
Therefore, “the state’s important regulatory interests are generally sufficient to
justify reasonable, nondiscriminatory restrictions.” Id. Among the States’
important regulatory interests are protecting “the integrity and reliability of the
electoral process itself.” Id. n. 9. For instance, the Supreme Court explained:
“The State has the undoubted right to require candidates to make a preliminary
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showing of substantial support in order to qualify for a place on the ballot,
because it is both wasteful and confusing to encumber the ballot with the
names of frivolous candidates.” Id.
Given the competing, legitimate interests at stake, the Supreme Court in
Anderson rejected a “litmus-paper test” for separating valid and invalid
election restrictions. Id. at 789. Instead, the Court adopted a balancing
approach.
First, a court must “consider the character and magnitude of the asserted
injury to the rights protected by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789. Next, the court must
“identify and evaluate the precise interests put forward by the State as
justification for the burden imposed by its rule.” Id. In making this
determination, the court must consider “the legitimacy and strength of each of
those interests” as well as “the extent to which those interests make it necessary
to burden the plaintiff’s rights.” Id. Only after undertaking this analysis can a
court conclude whether the challenged restriction is constitutional. Courts in
the Eleventh Circuit are directed to follow Anderson’s approach to determine
whether a ballot access law violates the First and Fourteenth Amendments.
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Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985).
A.

Character and Magnitude of the Asserted Injury to Plaintiffs

For the reasons discussed below, the Court finds that the character of the
asserted injury to the right to vote is significant, but that Plaintiffs have failed
to carry their burden to show the Court that the alleged injury is of an
appreciable magnitude.
In this case, it is obvious that the signature requirements placed a burden
on Plaintiffs’ exercise of their speech and association rights, given that they
were unable to collect the signatures needed to access the ballot. See New
Alliance Party of Alabama v. Hand, 933 F.2d 1568, 1574 (11th Cir. 1991).
Additionally, as discussed above, ballot access restrictions may have a
substantial impact on both candidates and voters. Simply put, “the rights of
voters and the rights of candidates do not lend themselves to neat separation;
laws that affect candidates always have at least some theoretical, correlative
effect on voters.” Bullock v. Carter, 405 U.S. 134, 143 (1972). The Court
agrees that the constitutional rights at issue are undeniably important and that
the Georgia election code burdens the exercise of those rights by the voters writ
large.
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In particular, burdens that fall on new or smaller parties fall on “those
voters whose political preferences lie outside the existing political parties.”
Anderson, 460 U.S. at 793-94 (citing Clements v. Fashing, 457 U.S. 957, 964
(1982)). To that point, Plaintiffs find that their values and priorities are not
reflected by the major parties, and that “the choices [the major parties] offer ...
are nearly immaterial to the aspirations of the citizens and voters [Plaintiffs]
organize to serve.” (Esco Aff., Dkt. [7-1] ¶ 26.) Plaintiff the Green Party puts
it plainly: “As Greens we believe we’re prepared to help address our
communities and our nation’s problems. The people of Georgia deserve an
opportunity to tell us if they agree.” (Id. ¶ 29.)
But a statutory scheme is not rendered unconstitutional solely because it
has disparate effects on a minor party’s and a major party’s candidates. To wit,
“it has been a constant theme in the cases governing ballot access restrictions
that a State need not, and indeed probably should not, treat minor parties and
independents the same as major parties.” New Alliance Party of Ala. v. Hand,
933 F.2d 1568, 1574-75 (11th Cir. 1991) (citing Williams v. Rhodes, 393 U.S.
23 (1968); Jenness, 403 U.S. at 441-42; American Party of Tex. v. White, 415
U.S. 767, 788 (1974)).
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Nor is a statute invalid simply because it places a burden on candidates
or voters. Here, while the requirement that Plaintiffs must gather signatures
from one percent of registered voters undoubtedly places a burden on
Plaintiffs, Georgia’s statutory scheme as a whole operates to prevent that
burden from being unconstitutional. In McCrary v. Poythress, the Court of
Appeals held that Georgia’s election code, which in that case required the
plaintiff to obtain signatures from five percent of registered voters, did not
place unconstitutional restrictions upon access to the general election ballot.
638 F.2d 1308 (5th Cir. 1981).4 In that decision, the court explained that other
Georgia code provisions helped ease the burden on would-be candidates. Of
particular relevance here, the length of time petitioners had to gather signatures
and the breadth of voters entitled to sign nomination petitions prevented a
finding that the five percent signature requirement was unconstitutional. Id. at
1313. The Court finds the higher court’s decision to be instructive in this case.
The statutory scheme in place here is similarly permissive: no voter is obligated
to vote for the candidate whose nomination petition she signs; petitioners have
4

The Eleventh Circuit has adopted as binding precedent all decisions of the
former Fifth Circuit handed down before October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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180 days to circulate their petitions; individual signatures need not be
notarized; and voters are not limited to signing only one candidate’s petition.
O.C.G.A. § 21-2-170.
In sum, while the Constitutional rights at issue are certainly important
ones that are burdened by O.C.G.A. § 21-2-170, the magnitude of the injury to
Plaintiffs is eased by the other provisions of Georgia’s statutory scheme. The
Court now turns to the second step of the Anderson analysis and considers the
State’s interests in limiting access to its ballot.
B.

The State’s Interests

The second step under Anderson is to “identify and evaluate the precise
interests put forward by the State as justification for the burden imposed by its
rule,” determining “the legitimacy and strength of each of those interests” and
considering “the extent to which those interests make it necessary to burden the
plaintiff’s rights.” Anderson, 460 U.S. at 789. Here, the State of Georgia
offers that it has an interest in avoiding voter confusion and ballot
overcrowding. (Def.’s Resp., Dkt. [29] at 16-17.) The Court now evaluates
those interests in light of Anderson’s directive.
The State’s interests here are undeniably legitimate. The Supreme Court
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and the Eleventh Circuit have consistently recognized that avoiding voter
confusion is a compelling state interest. Lubin v. Panish, 415 U.S. 709, 715
(1974) (“the State’s interest in keeping its ballots within manageable,
understandable limits is of the highest order”); Am. Party of Tex. v. White, 415
U.S. 767, 799 (1974) (“[T]he objectives ostensibly sought by the State, viz.,
preservation of the integrity of the electoral process and regulating the number
of candidates on the ballot to avoid undue voter confusion, are compelling.”);
Libertarian Party of Fla. v. Florida, 710 F.2d 790, 793 (11th Cir. 1983) (“[T]he
state has an interest in regulating the election process and avoiding voter
confusion. That these. . . are compelling has been well established under
decided cases.”). Similarly, avoiding over-crowded ballots is an important
state interest. Munro v. Socialist Workers Party, 479 U.S. 189, 196 (1986) (a
state is “clearly entitled to raise the ante for ballot access, to simplify the
general election ballot, and to avoid the possibility of unrestrained factionalism
at the general election.”); Clements v. Fashing, 457 U.S. 957, 965 (1982)
(“[T]he Court has emphasized that the States have important interests in
protecting the integrity of their political processes from frivolous or fraudulent
candidacies, in ensuring that their election processes are efficient, in avoiding
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voter confusion caused by an over-crowded ballot, and in avoiding the expense
and burden of run-off elections.”); Ill. State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 185 (1979) “the Court expressed concern for the
States’ need to assure that the winner of an election ‘is the choice of a majority,
or at least a strong plurality, of those voting, without the expense and burden of
runoff elections.’ ”) (quoting Bullock v. Carter, 405 U.S. 134, 145 (1972)
(footnote omitted)).
The Court cannot conclude on this record that the State has a real need to
decrease voter confusion in Georgia. But because avoiding voter confusion is
a compelling state interest, the relevant inquiry becomes one of reasonableness.
The inquiry asks “whether the legislative requirement is a rational way to meet”
the state’s interest, or “whether the statute unreasonably encroaches on ballot
access.” Libertarian Party of Fla., 710 F.2d. at 793. To emphasize, the state
does not have to employ the least restrictive alternative–the state simply must
not employ restrictions that unreasonably burden candidates and voters.5 In
5

Plaintiffs urge the Court to apply strict scrutiny, which requires the State to
use the least restrictive means to achieve its ends. (Pls.’ MSJ, Dkt. [7] at 9 (citing
Illinois State Bd. of Elections, 440 U.S. at 185).) But the Supreme Court has clarified
that the “reasonableness” standard of review is appropriate where a state law imposes
a restriction that is not “severe.” Burdick v. Takushi, 504 U.S. 428, 434 (1992); see
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fact, the Eleventh Circuit has cautioned courts against whittling away
percentage or number requirements in an un-ending search for a less restrictive
alternative. Id. (“Once a percentage or number of signatures is established, it
would probably be impossible to defend it as either compelled or least drastic.
At any point, probably a fraction of a percentage point less, or a few petitioners
less would not leave the interests of the state unprotected. Any numerical
requirement could be challenged and judicially reduced, and then again, and
again until it did not exist at all.”).
The Court now considers whether Georgia’s signature requirements
unreasonably burden candidates’ and voters’ rights. The Court must consider

also Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008) (“To evaluate a
law respecting the right to vote—whether it governs voter qualifications, candidate
selection, or the voting process—we use the approach set out in Burdick ... [,which]
calls for application of a deferential ‘important regulatory interests’ standard for
nonsevere, nondiscriminatory restrictions, reserving strict scrutiny for laws that
severely restrict the right to vote.”) (Scalia, J., concurring). The Court cannot
conclude on the record before it that the regulation in question here so severely
restricts the right to vote as to compel strict scrutiny. A regulation is “severe” and
requires strict scrutiny where, for example, it makes no provision for independent
candidates. Williams v. Rhodes, 393 U.S. 23 (1968). Similarly, a law that forced
political parties to open their candidate-selection process to persons wholly
unaffiliated with the party severely burdened the parties’ freedom of association, and
was evaluated under strict scrutiny. California Democratic Party v. Jones, 530 U.S.
567, 581-82 (2000). The law in question here imposes no such severe burden, and
accordingly, does not compel strict scrutiny.
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the provision that Plaintiffs specifically challenge–O.C.G.A. § 21-2-170–in
light of Georgia’s election code more broadly. Storer v. Brown, 415 U.S. 724,
737 (1974) (“The concept of ‘totality’ is applicable ... in the sense that a
number of facially valid provisions of election laws may operate in tandem to
produce impermissible barriers to constitutional rights.”); Williams v. Rhodes,
393 U.S. 23, 34 (1968) (“But here the totality of the Ohio restrictive laws taken
as a whole imposes a burden on voting and associational rights which we hold
is an invidious discrimination, in violation of the Equal Protection Clause.”).
As discussed above, some portions of Georgia’s election code scheme
attempt to ease a third party’s ability to obtain signatures. The Supreme Court
and, more recently, the Eleventh Circuit observed that under Georgia’s system:
A voter may sign a petition even though he has signed others, and
a voter who has signed the petition of a nonparty candidate is free
thereafter to participate in a party primary. The signer of a petition
is not required to state that he intends to vote for that candidate at
the election. A person who has previously voted in a party primary
is fully eligible to sign a petition, and so, on the other hand is a
person who was not even registered at the time of a previous
election.
Cartwright v. Barnes, 304 F.3d 1138, 1141 (11th Cir. 2002) (quoting Jenness,
403 U.S. at 438-39). Conversely, some portions of the scheme make obtaining

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the required signatures more difficult. For example, each person circulating a
page of the petition must verify by affidavit that the circulation complied with
Georgia law. O.C.G.A. § 21-2-183(b). The affidavit must be notarized by a
person who is not a party to the transaction for which the notarial act is
required. O.C.G.A. §§ 45-17-1(2), 45-17-8(c). The Georgia Supreme Court
has held that a person that circulates any part of a petition is a party to the
petition as a whole–therefore the circulator may not act as a notary with respect
to any pages of the petition, even those pages which he himself did not
circulate. Poppell v. Lanier et al., 264 Ga. 473 (1994). Georgia law further
places limits on when candidates can collect signatures, admitting no signatures
collected more than 180 days before the last day on which the petition may be
filed. O.C.G.A. § 21-2-170(e). Cf. Libertarian Party of Ala. v. Wallace, 586 F.
Supp. 399, 402 (M.D. Al. 1984) (upholding petition requirements where, inter
alia, Alabama did not place time limits on petition drives). Taken as a whole,
however, these restrictions are not unreasonable on their face.
This Court is instructed to consider the circumstances of other
individuals who were able to qualify as minor party candidates under the
challenged regulation. New Alliance Party v. Hand, 933 F.2d 1568, 1574 (11th
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Cir. 1991). The State provides an affidavit by Linda Ford, the Director of the
Elections Division for the Secretary of State. (Ford Aff., Dkt. [29-1].) Ms.
Ford refers to the certified election results for U.S. President and VicePresident and identifies the following persons who qualified to run as
independent or political body candidates pursuant to O.C.G.A. § 21-2-170:
Ross Perot (Independent, 1992); Ross Perot (Reform Party, 1996); and Pat
Buchanan (Independent, 2000). (Id. ¶ 8.) Additionally, the Libertarian Party
obtained “automatic” access to the statewide ballot in 1990, pursuant to the
procedure outlined in O.C.G.A. § 21-2-180(2), nominating candidates for
President in each election since. (Id. ¶ 9.)
Plaintiffs claim that “[n]o statewide petition to place either an
independent presidential candidate or a minor party presidential candidate has
succeeded in Georgia since 2000.” (Pls.’ Reply, Dkt. [34] at 5-6.) Plaintiffs
further claim that Georgia is one of only two states where no independent
candidate or previously unqualified party’s candidate has gained access to the
ballot through statewide petition procedures from 2001 to 2012. (Id. at 6.) The
other is Indiana. Indiana law provides: “A petition of nomination must be
signed by the number of voters equal to two percent (2%) of the total vote cast
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at the last election for secretary of state in the election district that the
candidate seeks to represent.” Ind. Code § 3-8-6-3.
Additionally, Georgia is one of only four states where Ralph Nader–the
Green Party’s candidate in 1996 and 2000, and an independent candidate in
2004 and 2008–never appeared on the ballot as a presidential candidate. (Id.)
The others are Indiana, North Carolina, and Oklahoma. (Pls.’ Reply, Dkt. [34]
at 6.) Indiana’s requirements are discussed above. North Carolina law requires
that an “unaffiliated candidate” must
file written petitions with the State Board of Elections supporting his
candidacy for a specified office. These petitions ... must be signed by
qualified voters of the State equal in number to two percent (2%) of the
total number of voters who voted in the most recent general election for
Governor. Also, the petition must be signed by at least 200 registered
voters from each of four congressional districts in North Carolina.
N.C. Gen. Stat. § 163-122(a)(1). An independent candidate seeking access to
the ballot in Oklahoma must file “petitions signed by a number of registered
voters supporting the candidacy of said candidate for President of the United
States equal to at least three percent (3%) of the total votes cast in the last
General Election for President.” Okla. Stat. tit. 26, § 10-101.1.
The individual states have an important right to regulate their own

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elections, and the Court discusses other states’ provisions only to serve as
points of comparison as it considers the operation of Georgia’s election code as
a whole. See Libertarian Party of Fla., 710 F.2d at 793 (“A review of the
various statutory schemes upheld by the Court supports the view that states are
free to adopt differing means of regulating ballot access, as long as the
particular scheme is not unnecessarily burdensome.”). Ralph Nader is an
example of a third party candidate who achieved relatively widespread support
across the nation. Mr. Nader’s failure to access the ballot in Georgia, despite
Georgia’s petition requirements being a lower percentage bar than in other
states where Mr. Nader was similarly denied access, could indicate that the
operation of Georgia’s election code as a whole serves to unconstitutionally bar
access to third party and independent candidates. But the Court cannot reach
that conclusion on the record presently before it. Plaintiffs provide no
evidence to show what efforts they have undertaken to nominate their
candidates in this state. The Court cannot make a meaningful comparison
between those candidates who successfully qualified under Georgia’s statutory
scheme and those who did not.
While the Court recognizes that prior higher court approval does not
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automatically render this scheme permissible, the higher court decisions
upholding Georgia’s election code bolster the Court’s determination that
summary judgment for Plaintiffs is inappropriate on this record. In 1971, the
Supreme Court considered a challenge to an earlier version of the code section
challenged here. Jenness v. Fortson, 403 U.S. 431 (1971). There, the Court
upheld a Georgia law that required “a candidate for elective public office who
does not enter and win a political party's primary election” to “file a nominating
petition signed by at least 5% of the number of registered voters at the last
general election for the office in question.” Id. at 432 (citing Ga. Code Ann. §
34-1010 (1970)). That law imposed a percentage requirement five times that of
the statute at issue here and was upheld as constitutional.
Of course, more than thirty years have now passed since the Supreme
Court took up the predecessor statute at issue in Jenness.6 In Jenness, the Court
detailed other ways in which the Georgia statutory scheme “impose[d] no

6

In the meantime, the Eleventh Circuit Court of Appeals has considered
O.C.G.A. § 21-2-170 in its decisions in Cartwright v. Barnes, 304 F.3d 1138 (11th
Cir. 2002) and Coffield v. Kemp, 599 F.3d 1276 (11th Cir. 2010) and has upheld that
statute on both occasions. In both cases, the plaintiffs challenged the five percent
requirement for congressional offices under O.C.G.A. § 21-2-170(b). Coffield, 599
F.3d at 1276; Cartwright, 304 F.3d at 1140.
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suffocating restrictions whatever upon the free circulation of nominating
petitions.”7 Id. at 438. And importantly, in its decision in that case, the
Supreme Court noted that:
The open quality of the Georgia system is far from merely theoretical.
For the stipulation of facts in this record informs us that a candidate for
Governor in 1966 and a candidate for President in 1968 gained ballot
designation by nominating petitions, and each went on to win a plurality
of the votes cast at the general election.
Id. at 439. The Court went on to state, “Georgia in no way freezes the status
quo, but implicitly recognizes the potential fluidity of American political life.”
Id. The Court cannot conclude on this record that the political landscape in
Georgia has changed such that those findings are now erroneous. The Supreme
Court has long “upheld reasonable level-of-support requirements and
classifications that turn on the political party’s success in prior elections.”
Clements v. Fashing, 457 U.S. 957, 965 (1982) (citing Storer v. Brown, 415

7

Among the permissive features of Georgia's statutory scheme at the time was
that “[n]o signature on a nominating petition need be notarized.” Jenness, 403 U.S. at
439. The Eleventh Circuit held in Cartwright that “it is still true that no signature on a
nominating petition need be notarized,” because the “notarization requirement [in
O.C.G.A.§ 21-2-170(d)] places no restriction upon the ability of a voter to sign a
petition.” 304 F.3d at 1141. Plaintiffs allege that some of the signatures they collected
on their petitions were invalidated under this provision; this allegation, however, is
largely undiscussed in Plaintiffs’ briefs and unsupported by evidence in the record.
(See Favorito Aff., Dkt. [7-3] ¶ 1.)
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U.S. 724 (1974); American Party of Tex. v. White, 415 U.S. 767 (1974);
Jenness v. Fortson, 403 U.S. 431 (1971).)
Even so, “the State may not act to maintain the ‘status quo’ by making it
virtually impossible for any but the two major parties to achieve ballot
positions for their candidates.” Clements, 457 U.S. at 965. But Plaintiffs must
show that the challenges they face in accessing the ballot are attributable to the
particular burdens imposed by Georgia’s petition requirements and are not
simply a result of the generic difficulty inherent in gaining access to a ballot.
Plaintiffs have failed to carry that burden here. “The focal point of this inquiry
is whether a ‘reasonably diligent candidate can be expected to satisfy the
signature requirements.’ ” Libertarian Party of Fla. v. Florida, 710 F.2d at 793
(quoting Storer v. Brown, 415 U.S. at 742) (internal modifications omitted).
Plaintiffs claim that the Green Party of Georgia has “suffered significantly”
from “petitioning[ ]fatigue,” in which members of a political party become
discouraged in the face of repeated failure to gather enough signatures to place
their candidate on the ballot. (Esco Aff., Dkt. [7-1] ¶ 22.) Yet Plaintiffs
provide no evidence that would allow the Court to conclude they have been

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“reasonably diligent” in seeking signatures.8 Plaintiffs’ diligence remains a
genuine issue of material fact. Therefore the Court cannot conclude, as a
matter of law, that Plaintiffs have been unconstitutionally barred from
accessing the ballot by the operation of Georgia’s laws.
The Court is aware that Georgia’s election code has an impact on speech
and association rights of more than just Georgia voters. “[I]n a Presidential
election, a State’s enforcement of more stringent ballot access requirements. . .
has an impact beyond its own borders.” Anderson, 460 U.S. at 495. Again
looking at the example of Mr. Nader’s candidacy in 2000, Georgia’s laws
operated to bar ballot access to a candidate who enjoyed widespread national
support. But on the present record, applying the standard of review compelled
by the Court’s findings above, the Court cannot conclude that the challenged
provisions unconstitutionally burden Plaintiffs’ First and Fourteenth
8

In a similarly unsupported statement, the State asserts that presidential
elections in Georgia “typically attract a large amount of interest from people interested
in being candidates.” (Ford Aff., Dkt. [29-1] ¶ 7.) This assertion is vague and
unsupported by evidence in the record. Still, Plaintiffs have not convinced the Court
that the State’s asserted interest does not warrant the present restrictions. Cf.
Williams v. Rhodes, 393 U.S. 23, 33 (1968) (“It is true that the existence of
multitudinous fragmentary groups might justify some regulatory control but ... at the
present time this danger seems to us no more than ‘theoretically imaginable.’ No such
remote danger can justify the immediate and crippling impact on the basic
constitutional rights involved in this case.”).
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Amendment rights. Accordingly, Plaintiffs’ Motion for Summary Judgment
must be DENIED.
Conclusion
In accordance with the foregoing, Plaintiffs’ Motion for Summary
Judgment or Alternatively for a Preliminary Injunction [7] is DENIED.
SO ORDERED, this 19th day of May, 2015.

________________________________
RICHARD W. STORY
United States District Judge

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