United States District Court, N.D. Georgia, Atlanta Division
GREEN PARTY OF GEORGIA, and CONSTITUTION PARTY OF GEORGIA, Plaintiffs,
BRIAN KEMP, Georgia Secretary of State, Defendant.
RICHARD W. STORY, District Judge.
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.
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 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 the 2012 Presidential Ballot in Georgia." (Compl., Dkt.  ¶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.  ¶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. § 21-2-170 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. .) 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. 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.Appx. 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).
II. Factual Background
The following facts are taken from the affidavits submitted in support of Plaintiffs' Motion for Summary Judgment or Alternatively for a Preliminary Injunction  ("Plaintiffs' Motion for Summary Judgment"),  Defendant's Response to Plaintiff's Motion for Summary Judgment  ("Defendant's Response"), and Plaintiffs' Reply to Defendant's Response to Plaintiffs' Motion for Summary Judgement  ("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.  ¶ 1-2; Esco Aff., Dkt. [7-1]; Haag Aff., Dkt. [7-2].)
Defendant Brian Kemp is Georgia's Secretary of State. (Pls.' SOMF, Dkt.  ¶ 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 process in Georgia.
Georgia's election code was updated to its current version in 1986. (Pl.'s SOMF, Dkt.  ¶ 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.  ¶ 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.)
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 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. § 21-2-180(2). The Libertarian Party has accessed the ballot in this way on various 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.  ¶ 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.
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 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, ...