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Duke v. Massey

July 11, 1996

DAVID DUKE, MARTHA ANDREWS, WILLIAM GORTON, AND VICTOR MANGET, PLAINTIFFS-APPELLANTS,
v.
LEWIS MASSEY, SECRETARY OF THE STATE OF GEORGIA AND CHAIR OF THE PRESIDENTIAL CANDIDATE SELECTION COMMITTEE, ET AL., DEFENDANTS-APPELLEES, ALEC L. POITEVINT, AS A MEMBER OF THE PRESIDENTIAL CANDIDATE SELECTION COMMITTEE, DEFENDANT-INTERVENOR-APPELLEE.



Appeal from the United States District Court for the Northern District of Georgia. (No. 1:92-CV-116-RCF). Richard C. Freeman, Senior District Judge.

Before Hatchett, Circuit Judge, Henderson, Senior Circuit Judge, and Mills,*fn* District Judge.

Author: Hatchett

HATCHETT, Circuit Judge:

In this case, we affirm the district court's decision granting summary judgment to Georgia state officials and Republican Party officials who refused to place David Duke's name on the presidential preference primary ballot for the 1992 election.

FACTS

David Duke, a controversial political figure, sought the Republican Party's nomination for President of the United States for the 1992 election. In pursuing the Republican Party nomination, Duke participated in presidential primaries in various states throughout the nation.*fn1 In December 1991, Georgia's Secretary of State, Max Cleland, prepared and published a list of potential candidates for Georgia's presidential preference primary.*fn2 Duke's name appeared on the Georgia list of presidential candidates for the Republican Party nomination. The Secretary submitted his initial list of presidential primary candidates to the presidential candidate selection committee (Committee) for the Republican Party, the committee that is responsible for representing the Republican Party in selecting the republican candidates to appear on the presidential preference primary ballot, according to section 21-2-193(a) of the Georgia Code.

On December 16, 1991, the Committee, consisting of Georgia's Republican Party Chairperson Alec Poitevint, Senate Minority Leader Tom Phillips, and House Minority Leader Paul Heard, met to discuss the Secretary's list of potential presidential candidates. Pursuant to their authority under O.C.G.A. § 21-2-193(a), the Committee deleted Duke's name from the list of potential republican presidential candidates.*fn3 Following the Committee's decision, the Secretary of State published a list of presidential candidates that did not include Duke's name. Prior to the January 6, 1992 statutory deadline, Duke petitioned pursuant to section 21-2-193(b) of the Georgia Code to have the Secretary of State place his name on the ballot. On January 8, 1992, the Committee held a meeting to reconsider its earlier decision to exclude Duke from the presidential primary preference ballot. Under the reconsideration procedures, a single member of the Committee could have voted to have Duke's name placed on the presidential preference primary ballot and Duke's name would have been placed on the ballot. O.C.G.A. § 21-2-193(b). No committee member voted to have Duke's name placed on the ballot.

PROCEDURAL HISTORY

On January 15, 1992, Duke and voters who desired an opportunity to vote for him filed this lawsuit in the District Court for the Northern District of Georgia against the Committee and Cleland, as the Secretary of State and as chair of the Committee, seeking a temporary restraining order, a preliminary injunction, and a permanent injunction, under 42 U.S.C. § 1983, to prevent the printing of primary ballots for the 1992 Georgia republican presidential preference primary without Duke's name being listed as a candidate. In their complaint, the appellants alleged that the Committee's decision to exclude Duke's name from the primary ballot deprived them of their right to free speech, right to association, right to due process, right of equal protection, right to run for office and the right to vote, in violation of the First and Fourteenth Amendments to the United States Constitution. After Poitevint, chairperson of the Georgia Republican Party, moved to intervene, the district court granted Poitevint's motion to intervene and issued an order denying the appellants' request for a temporary restraining order and preliminary injunction. Duke v. Cleland, 783 F. Supp. 600 (N.D.Ga.1992). This court affirmed the decision in Duke v. Cleland, 954 F.2d 1526 (11th Cir.), (hereinafter Duke I).

After the plaintiffs were denied injunctive relief, they filed an amended complaint adding an additional claim under 42 U.S.C. § 1983, claiming that Georgia's statute regulating presidential preference primary candidate selection violated their rights of free speech, right of association, right to equal protection, right to run for office, right to vote, and right of due process guaranteed under the First and Fourteenth Amendments to the Constitution of the United States. Acting upon the appellees' motion to dismiss for failure to state a claim, the district court granted the appellees' motion to dismiss finding that the state statute was constitutional, the appellants did not suffer any constitutional violations, and that no state action occurred. This court vacated the district court's decision and remanded in Duke v. Cleland, 5 F.3d 1399 (11th Cir.1993) (hereinafter Duke II), finding that the Committee was an arm of the state, and therefore, its actions constituted state action. This court remanded the case to the district court to determine the state interest purportedly advanced through O.C.G.A. § 21-2-193 and to weigh those interests against the purported burdens on the appellants' constitutional rights.

On remand to the district court, the appellees again moved for summary judgment. The district court granted the appellees' motion for summary judgment finding that the state had a compelling interest in protecting political parties' right to define their identity and finding that the statute was narrowly tailored to advance the state's compelling interest.

CONTENTIONS

Duke and the voters contend the district court failed to adhere to the holdings in Duke II and Duke v. Smith, 13 F.3d 388 (11th Cir.), cert. denied, Koczak v. Smith, U.S., 115 S. Ct. 487, 130 L. Ed. 2d 399 (1994) (Florida Duke), causing it to erroneously conclude that Duke's exclusion from the ballot was not attributable to state action. They assert that Duke II held that the exclusion of Duke from the primary ballot was state action and that the plaintiffs in that case asserted that the state action infringed their constitutionally protected rights. Second, Duke and the voters contend that the power of the state to exclude and the Committee's exclusion of Duke from the ballot failed any level of constitutional scrutiny. They contend that the district court erroneously found that the statute advanced a compelling interest in a narrowly tailored manner. They also argue that the statute actually undermines a political party's right to define its membership, and that the power of the Committee to exclude a candidate from the primary ballot is neither necessary nor narrowly tailored because it violates their rights of free speech and association under the First and Fourteenth Amendments. Finally, they contend that the statute allows the committee unfettered discretion to exclude anyone from being listed on the presidential primary ballot, thus frustrating the stated purpose of the statute: that is, to allow the voters of Georgia to "express their preference for one person to be the candidate for nomination by his party or body for the office of President...." O.C.G.A. § 21-2-191.

The Committee contends that the district court correctly found that section 21-2-193(a) of Georgia Code is constitutional because the state has a compelling interest in protecting the First Amendment rights of political organizations to define their identity and to select their candidates. It contends that the statute is narrowly tailored to achieve that purpose. It contends that the statute requires a unanimous decision of all three of its members to exclude a candidate and allows any member to unilaterally replace an excluded ...


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