Filed: Jul. 11, 1996
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals, Eleventh Circuit. No. 95-8452. David DUKE, Martha Andrews, William Gorton, and Victor Manget, Plaintiffs-Appellants, v. Max CLELAND, 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. July 11, 1996. Appeal from the United States District Court for the Northern District of Georgia
Summary: United States Court of Appeals, Eleventh Circuit. No. 95-8452. David DUKE, Martha Andrews, William Gorton, and Victor Manget, Plaintiffs-Appellants, v. Max CLELAND, 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. July 11, 1996. Appeal from the United States District Court for the Northern District of Georgia...
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United States Court of Appeals,
Eleventh Circuit.
No. 95-8452.
David DUKE, Martha Andrews, William Gorton, and Victor Manget,
Plaintiffs-Appellants,
v.
Max CLELAND, 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.
July 11, 1996.
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*, District Judge.
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
*
Honorable Richard H. Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
states throughout the nation.1 In December 1991, Georgia's
Secretary of State, Max Cleland, prepared and published a list of
potential candidates for Georgia's presidential preference
primary.2 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.3 Following the Committee's decision, the
1
The record shows that Duke's name appeared on the ballot in
republican presidential primaries in 1992 in the following
states: Connecticut, Kansas, Louisiana, Massachusetts, Michigan,
Mississippi, Oklahoma, Oregon, Rhode Island, South Carolina,
Tennessee, Texas, and Washington.
2
The Secretary of State prepares a list of potential
presidential candidates comprised of persons "who are generally
advocated or recognized in news media throughout the United
States as aspirants for that office and who are members of a
political party or body which will conduct a Presidential
Preference Primary" in the state. O.C.G.A. § 21-2-193(a).
3
Under Georgia law, "each person designated by the Secretary
of State as a presidential candidate shall appear upon the ballot
of the appropriate political party or body unless all committee
members of the same political party or body as the candidate
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
agree to delete such candidate's name from the ballot." O.C.G.A.
§ 21-2-193(a).
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.), cert. denied,
502 U.S. 1086,
112 S. Ct. 1152,
117 L. Ed. 2d 279 (1992) (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 candidate on the ballot. The
Committee also argues that the record demonstrates that Duke was
not even a member of the Republican Party.4
ISSUES
The issues we address in this appeal are: (1) whether the
district court erred in granting summary judgment to the Committee
finding that O.C.G.A. § 21-2-193(a) serves a compelling interest in
a narrowly tailored manner; and (2) whether the district court
erred in denying Duke and the voters' motions for summary judgment.
4
We find this contention meritless and do not address it.
DISCUSSION
Our review of a district court's grant of summary judgment is
de novo. Thompson v. Metropolitan Multi-List, Inc.,934 F.2d 1566,
1570 (11th Cir.1991), cert. denied, Dekalb Bd. of Realtors, Inc. v.
Thompson, 506 U.S. 903,
113 S. Ct. 295,
121 L. Ed. 2d 219 (1992).
According to Federal Rule of Civil Procedure 56(c), summary
judgment is appropriate when "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." A genuine issue of material fact exists when
a reasonable trier of fact considering the record evidence could
find for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477
U.S. 242, 249,
106 S. Ct. 2505, 2510-11,
91 L. Ed. 2d 202 (1986). In
this appeal, we independently review the record before the district
court and apply the same standards that the district court
employed. Lee v. Etowah County Bd. of Educ.,
963 F.2d 1416, 1425
(11th Cir.1992). We review all evidence and all factual inferences
from the evidence in the light most favorable to the nonmoving
party.
Lee, 963 F.2d at 1425.
I. State Action
In this lawsuit, Duke and the voters brought their cause of
action under 42 U.S.C. § 1983, and therefore our initial inquiry
concerns: (1) whether the person engaged in the conduct complained
of was acting under color of state law; and (2) whether the
alleged conduct deprived a person of rights, privileges or
immunities guaranteed under the Constitution or laws of the United
States. Parratt v. Taylor, 451 U.S. 527, 535,
101 S. Ct. 1908,
1912-13,
68 L. Ed. 2d 420 (1981), overruled on other grounds by,
Daniels v. Williams,
474 U.S. 327,
106 S. Ct. 662,
88 L. Ed. 2d 662
(1986); Burch v. Apalachee Community Mental Health Services, Inc.,
840 F.2d 797, 800 (11th Cir.1988), aff'd by, Zinermon v. Burch,
494
U.S. 113,
110 S. Ct. 975,
108 L. Ed. 2d 100 (1990). Under the first
prong of the test, this court has previously determined that the
actions of the Committee taken pursuant to O.C.G.A. § 21-2-193
constitute state action. See Duke v. Cleland,
5 F.3d 1399, 1403-04
(11th Cir.1993). Therefore, our analysis focuses on determining
whether genuine issues of material fact exist regarding the alleged
deprivation of Duke and the voters' constitutional rights and the
state's purported interests in advancing O.C.G.A. 21-2-193, and
whether the Committee was entitled to judgment as a matter of law.
Although this court has determined that the actions of the
Committee constitute state action, the district court found that
the committee members' decision to exclude Duke from the
presidential primary ballot was not necessarily state action
because the committee members made the decision in their capacity
as representatives of the Republican Party. Duke v. Cleland, 884
F. Supp. 511, 515 n. 2 (N.D.Ga.1995). While we perceive the
distinction the district court attempts to make regarding the
committee members' action taken under O.C.G.A. § 21-2-193, we
disagree with the conclusion that a distinction exists. As this
court noted in Duke II,
the statute represents a scheme whereby the state confers
largely upon itself the raw power to choose who may or may not
be party primary candidates. Two-thirds of the committee's
voting members are elected officials representing their
respective party. No guidelines limit their power. The
committee may exclude nationally recognized candidates for any
reason or no reason at all.
Duke, 5 F.3d at 1403. In light of the foregoing, we disagree with
the district court's suggestion that the Committee's decision to
exclude Duke was not state action, but we agree with the district
court's conclusion that the committee members also acted as
representatives of the Republican Party. We follow Duke II in
holding that the Committee's decision to exclude Duke from
Georgia's presidential primary ballot pursuant to O.C.G.A. § 21-2-
193 constituted state action.
II. Deprivation of Rights
Since we have determined that the Committee's decision to
exclude Duke from the primary ballot constituted state action, we
now assess the purported interests that Duke and the voters alleged
were infringed and the state's interests for enacting O.C.G.A. §
21-2-193. In our analysis, we are mindful of the Supreme Court's
teachings that
a court considering a challenge to a state election law must
weigh "the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate" against "the precise
interest put forward by the state as justifications for the
burden imposed by its rule," taking into consideration "the
extent to which those interests make it necessary to burden
the plaintiff's right."
Burdick v. Takushi, 504 U.S. 428, 434,
112 S. Ct. 2059, 2063,
119
L. Ed. 2d 245 (1992) (quoting Anderson v. Celebrezze,
460 U.S. 780,
789,
103 S. Ct. 1564, 1570,
75 L. Ed. 2d 547 (1983)). Although the
Supreme Court has indicated that a flexible approach may be
necessary to determine the proper standard of judicial review to be
applied in ballot access cases, we note that when a state election
law burdens a fundamental constitutional right severely, that law
may survive only if it satisfies strict scrutiny; that is, it must
be narrowly tailored to further a compelling state interest. Eu v.
San Francisco County Democratic Cent. Committee,
489 U.S. 214, 222,
109 S. Ct. 1013, 1019-20,
103 L. Ed. 2d 271 (1989);
Duke, 5 F.3d at
1405. On the other hand, a state law that imposes only reasonable
nondiscriminatory restrictions upon the First and Fourteenth
Amendment rights of persons in order to further the state's
regulatory interests are generally sufficient to support the
restrictions.
Burdick, 504 U.S. at 434, 112 S.Ct. at 2063-64;
Duke, 5 F.3d at 1405.
A. Duke's Interest
In this appeal, Duke asserts that the Committee's decision
and the Georgia statute severely burdened his rights of free speech
and association under the First and Fourteenth Amendments to the
United States Constitution. Duke contends that because the statute
grants the committee members "unfettered discretion" to grant or
deny ballot access it is unconstitutional in that it allows the
Committee members to exclude candidates based on the content of
their speech. Duke argues that the statute also infringes his
right to freedom of association.
We observed in Duke I that Duke does not have a right to
associate with an "unwilling partner," the Republican Party. Duke,
954 F.2d at 1530. In Duke I, we found that the Committee did not
infringe Duke's right of association because the Republican Party
has a right to "identify the people who constitute the association
and to limit the association to those people only."
Duke, 954 F.2d
at 1531 (quoting Democratic Party of United States v. Wisconsin,
450 U.S. 107,
101 S. Ct. 1010,
67 L. Ed. 2d 82 (1981)). Our decision
in Duke II alters the analysis in this case, however, because in
Duke II, we found that the Committee's decision to exclude Duke
from the presidential primary ballot was not solely attributable to
the Republican Party, but was partly attributable to the state of
Georgia because the Committee derived its power to make the
decision to exclude Duke under O.C.G.A. § 21-2-193 and not from the
Republican Party.5 Duke,
5 F.3d 1399, 1403-04. The district court
correctly pointed out, however, that notwithstanding the presence
of state action, the committee members also served as
representatives of the Republican Party. Duke v. Cleland,
884
F. Supp. 511, 515 (N.D.Ga.1995). Duke has an interest in being free
6
from state discrimination based on the content of his speech.
Chicago Police Department v. Mosley, 408 U.S. 92, 96-98,
92 S. Ct.
2286, 2290-92,
33 L. Ed. 2d 212 (1972). Under our reasoning in Duke
v. Smith, Duke also has a procedural due process right to have his
petition to be placed on the ballot to be free from a committee's
"unfettered discretion" in rendering a decision. Duke v. Smith,
13
F.3d 388, 395 (11th Cir.1994). Although Duke is correct in
5
Therefore, we must focus not only on the interests of the
Republican Party, but we must also consider the state's interests
in establishing the Committee.
6
The record shows that the members of the Committee wanted
to exclude Duke from the presidential primary ballot based on his
political beliefs and speech that were inconsistent with the
Republican Party's principles. For example, a press release
quoted one of the committee members as stating that "Duke is a
fraud and charlatan whose Nazi ties are an affront to our parents
and grandparents who fought to protect our country and this world
from domination by Hitler.... There is no room for disciples of
Hitler on the Republican Presidential Ballot."
identifying his First and Fourteenth Amendment interests, those
interests do not trump the Republican Party's right to identify its
membership based on political beliefs nor the state's interests in
protecting the Republican Party's right to define itself. Duke,
954 F.2d at 1531. Therefore, the Committee, acting as
representatives of the Republican Party under O.C.G.A. § 21-2-193,
did not heavily burden Duke's First Amendment and Fourteenth
Amendment rights when it excluded him from the Republican Party's
presidential primary ballot.
B. Voters' Interest
The voters, supporters of Duke, claim that O.C.G.A. § 21-2-
193 burdens their associational rights and their right to vote for
a candidate of their choice. The voters contend that under Lubin
v. Panish, 415 U.S. 709,
94 S. Ct. 1315,
39 L. Ed. 2d 702 (1974), the
right to vote is "heavily burdened" when the choices of candidates
on primary ballots are restricted and other persons are "clamoring"
to be listed on the election ballot. While Lubin does stand for
the proposition that the voters urge, it also stands for the
proposition that every voter cannot be assured that the voter's
preferred candidate will be allowed on the ballot.
Lubin, 415 U.S.
at 716-17, 94 S.Ct. at 1320. The voters cite Anderson v.
Celebrezze,
460 U.S. 780, 787-88,
103 S. Ct. 1564, 1569-70,
75
L. Ed. 2d 547 (1983) for the proposition that the Committee's
exclusion of Duke from the ballot burdened their First and
Fourteenth Amendments right to associate for the advancement of
their shared political beliefs and their right to endorse or oppose
a particular candidate and the issues the candidate espouses. The
voters argue that under the statute, the Committee has unfettered
discretion to decide who is fit and who is not fit to run as a
republican. The Supreme Court has recognized that a free and open
debate on the qualifications of candidates is "integral to the
operation of the system of government established by our
Constitution," and that burdens on candidate access to the ballot
directly burden the voters' ability to voice preferences. Buckley
v. Valeo,
424 U.S. 1, 14, 94,
96 S. Ct. 612, 632, 670-71,
46 L. Ed. 2d
659 (1976). In this case, however, the voters have failed to offer
any authority suggesting that they have a right to vote for their
candidate of choice as a republican in a nonbinding primary.7 In
fact, this court has previously determined that any burden on these
voters is "considerably attenuated" and possibly nonexistent.
Duke, 954 F.2d at 1531.
C. The State's Interest
The district court determined that the state has an interest
in regulating the time, place and manner of elections. Duke v.
Cleland, 884 F. Supp. 511, 514 (N.D.Ga.1995). Moreover, the
Committee claimed that the state has an interest in regulating
ballot access. Indeed, the Supreme Court has recognized that the
State's interest in keeping its ballots within manageable
understandable limits is of the highest order. Bullock v. Carter,
405 U.S. 134, 144-45,
92 S. Ct. 849, 856-57,
31 L. Ed. 2d 92 (1972).
The Committee asserted that the state has an interest in protecting
the rights of political parties to define their membership and that
7
Nothing precludes these voters from supporting Duke as an
independent candidate or a third-party candidate in the general
election.
O.C.G.A. § 21-2-193(a) and (b) provide a mechanism for those
interests to be furthered. The Committee claimed that the
Republican Party has a clear and well fortified First Amendment
right to define its membership under Duke I. Duke v. Cleland, 954
F.2d 1526, 1530 (11th Cir.1992) (finding that the Republican Party
enjoys a constitutionally protected freedom that includes the right
to identify the people who constitute its association). States do
have an interest in regulating the time, place and manner of
elections. Burdick v. Takushi,
504 U.S. 428, 433-434,
112 S. Ct.
2059, 2063-64,
119 L. Ed. 2d 245 (1992). A responsibility emanating
from that interest is the state's duty to determine how many names
will appear on a primary ballot.
Anderson, 460 U.S. at 786-90, 103
S.Ct. at 1568-71. Undoubtedly, in performing its obligation to
regulate elections a state will impose some burdens upon voters and
political parties.
Burdick, 504 U.S. at 433,
434, 112 S. Ct. at
2063, 2063-64.
III. Strict Scrutiny
Although we do not believe that Duke and the voters' rights
were heavily burdened as a result of the Committee's decision under
O.C.G.A. § 21-2-193, we will apply strict scrutiny as the district
court did in order to err on the side of caution. Undeniably, Duke
has a First Amendment right to express his political beliefs free
from state discrimination no matter how repugnant his beliefs may
be to others. Chicago Police Department v. Mosley, 408 U.S. 92,
96-98,
92 S. Ct. 2286, 2290-92,
33 L. Ed. 2d 212 (1972); see
generally Rutan v. Republican Party of Illinois,
497 U.S. 62, 69,
110 S. Ct. 2729, 2734,
111 L. Ed. 2d 52 (1990). It is equally clear,
however, that he does not have a First Amendment right to express
his beliefs as a presidential candidate for the Republican Party.
Duke v. Cleland,
954 F.2d 1526, 1531 (11th Cir.1992); see also
Democratic Party of U.S. v. Wisconsin,
450 U.S. 107,
101 S. Ct.
1010,
67 L. Ed. 2d 82 (1981). The Republican Party has a First
Amendment right to freedom of association and an attendant right to
identify those who constitute the party based on political beliefs.
Duke, 954 F.2d at 1533;
Wisconsin, 450 U.S. at 122, 101 S.Ct. at
1019 (finding that a party's freedom of association presupposes the
freedom to identify the people who constitute the association and
limit the association to those people only). Therefore, the
Committee acting in a representative capacity for the Republican
Party did not have to accept Duke as a republican presidential
candidate. Duke does not have the right to associate with an
"unwilling partner."
Duke, 954 F.2d at 1530; see also Belluso v.
Poythress,
485 F. Supp. 904, 912 (N.D.Ga.1980). Likewise, Duke
supporters do not have a First Amendment right to associate with
him as a Republican Party presidential candidate.
Duke, 954 F.2d
at 1531. Duke's supporters were not foreclosed from supporting him
as an independent candidate, or as a third-party candidate in the
general election. Moreover, Duke's supporters could have supported
him as a third-party candidate in the primary or as a write-in
candidate in the primary or general election.
The state has a compelling interest in protecting political
parties' right to define their membership. Duke, 954 F.2d at 1530.
Moreover, states have a significant interest in structuring and
regulating elections in order to facilitate order, honesty and
fairness. Storer v. Brown,
415 U.S. 724, 730,
94 S. Ct. 1274, 1279,
39 L. Ed. 2d 714 (1974). Common sense dictates that states must
regulate elections and that the regulations will necessarily impose
some burden upon voters and parties.
Burdick, 504 U.S. at 433, 112
S.Ct. at 2063. We believe that O.C.G.A. § 21-2-193 is narrowly
tailored to further Georgia's compelling state interests. Under
the statute, three party leaders are appointed to serve on the
Committee.8 Although the Committee's decision to exclude a
candidate from the presidential primary ballot is unreviewable by
the entire membership of the party, these committee members are
leaders in the Republican Party and are ultimately held accountable
for their decisions by the membership of the Republican Party.
Under the terms of O.C.G.A. 21-2-193, a person cannot serve on the
Committee unless the membership of the Republican Party has placed
them in a key leadership position. Surely, these persons are aware
of the principles and platform of the Republican Party and can
decide what presidential candidates are aligned with the party's
views. Therefore, as leaders the membership of the party elected,
they have been entrusted with the authority to make decisions for
the party, and O.C.G.A. § 21-2-193 recognizes that these party
leaders are in the best position to decide who should appear on
Georgia's Republican Party presidential primary ballot.
Duke and the voters point to this court's decision in Duke v.
Smith, 13 F.3d 388 (11th Cir.1994) (Florida Duke ) for support in
8
It is difficult to imagine composing a committee of party
leaders who are in a better position to determine how a
presidential candidate lines up with the views of the party than
the State Chairperson of the party and the Majority and Minority
leaders of both the state house and senate.
arguing the unconstitutionality of Georgia's election statute.
Although the statute involved in the Florida Duke case closely
resembles the statute involved in this case, the differences
between both the state's interests and the statutes warrant a
different outcome. In the Florida Duke case, we only found that
the "reconsideration provision" of the Florida statute was
unconstitutional because no compelling interest existed for having
the provision of the statute and that the provision endowed the
presidential primary selection committee with "unfettered
discretion" in the reconsideration process of excluded candidates.
Duke, 13 F.3d at 395. First, the district court correctly
determined that the state of Georgia, unlike the state of Florida,
offered a compelling state interest that the statute furthered:
namely, protecting political parties' rights to define themselves.
Second, under the Florida statutes' reconsideration process, the
statute merely stated a certain date and time that the Committee
had to reconvene in order to determine whether a candidate would be
placed on the presidential primary ballot. The Florida statute
does not mention how a candidate may be placed on a ballot. Under
the Georgia statute, however, any single member of the Committee
may unilaterally place an excluded candidate's name on the
presidential primary ballot. O.C.G.A. § 21-2-193(b). Therefore,
the Georgia statute provides each of the committee members the
ability to act as a check against arbitrary and capricious
decisions. Duke and the voters argue that the operation of the
Georgia statute actually undermined its purported interest in
protecting a political party's ability to define itself because it
allows the committee members to make decisions that the party
membership may not review. This argument suggests that the full
party should have the right to determine what names appear on the
ballot for a presidential primary. As the district court aptly
pointed out, a system that would require a full party vote to put
candidates on the presidential primary ballot would likely
duplicate the results of the primary itself and also of the
Committee.
Duke, 834 F. Supp. at 518 n. 6. We hold that O.C.G.A.
§ 21-2-103 is narrowly tailored as it provides the state an
efficient and effective means of furthering its compelling interest
of protecting a political party's right to exclude persons with
"adverse political principles."
CONCLUSION
Because we find that neither Duke nor his supporters' First or
Fourteenth Amendment rights were heavily burdened and that O.C.G.A.
§ 21-2-193 is narrowly tailored to serve a compelling state
interest, the district court did not err in granting summary
judgment.
AFFIRMED.
