Ashworth v. Fortson, Civ. A. No. C-76-861-A.

Decision Date21 October 1976
Docket NumberCiv. A. No. C-76-861-A.
Citation424 F. Supp. 1178
PartiesDavid ASHWORTH, et al. v. Ben W. FORTSON, Jr., Secretary of State.
CourtU.S. District Court — Northern District of Georgia

Al Leake pro se.

Don A. Langham, Timothy J. Sweeney, Michael J. Bowers, State of Georgia Dept. of Law, Atlanta, Ga., for defendant.

Before HILL, Circuit Judge, and HENDERSON and FREEMAN, District Judges.


The American Party of Georgia and its individual candidates for the 1976 general election brought this action challenging the constitutional validity of statutory filing limitations imposed by the Georgia Election Code.1 Specifically, they seek to have the filing date for candidates of minor political organizations2 declared unconstitutional and its enforcement enjoined.3 They contend that the filing deadline is so remote from party primaries and the general election as to unduly burden their voting and associational rights, invidiously discriminating against new or small political organizations in violation of the Equal Protection Clause of the Fourteenth Amendment.

Georgia's qualifying requirements for non-party candidates were upheld by the United States Supreme Court in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), aff'g sub nom. Georgia Socialist Workers Party v. Fortson, 315 F.Supp. 1035 (N.D.Ga.1970). However, in view of some uncertainty over the scope of the Supreme Court's decision in that case, and the subsequent impact of recent district court rulings invalidating filing dates in other states, it could not be said that Jenness rendered the plaintiffs' claims frivolous or insubstantial, "leaving no room for the inference that the questions sought to be raised can be the subject of controversy."4 See McCarthy v. Kirkpatrick, 420 F.Supp. 366 (W.D.Mo.1976); Lendall v. Jernigan, Civ. No. LR-76-C-184 (E.D.Ark. Aug. 20, 1976); Bradley v. Mandel, Civ. No. C-76-638 (D.Md. May 17, 1976), prob. juris. noted, 45 U.S.L.W. 3222 (U.S. Oct. 4, 1976); Salera v. Tucker, 399 F.Supp. 1258 (E.D.Pa. 1975), aff'd 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727 (1976). See also McCarthy v. Briscoe, ___ U.S. ___, 97 S.Ct. 10, 50 L.Ed.2d 49 (S.Ct.1976); McCarthy v. Noel, 420 F.Supp. 799 (R.I.1976); McCarthy v. Tribbitt, 421 F.Supp. 1193 (Del.1976); McCarthy v. Askew, 420 F.Supp. 775 (Fla. 1976). Thus, a three-judge district court was convened pursuant to the provisions of 28 U.S.C. § 2281.5

The facts in this case are undisputed. In Georgia, candidates for political office may have their names appear on the election ballot by following one of three alternative routes: as candidates of a political "party", a political "body", or as independents. Political organizations receiving at least 20% of the total vote in the preceding gubernatorial election are defined as political "parties,"6 entitled to choose their candidates for office in a primary election held the second Tuesday in August.7 Party candidates must qualify for the primary on the second Wednesday in June, and the winner files his "notice of candidacy" thereafter, at least 75 days before the general election.8 His name then automatically appears on the ballot.

Political organizations, such as the American Party of Georgia, polling less than 20% of the total vote in the preceding gubernatorial election, or having no candidate in that election, are political "bodies."9 In order for their nominees to be placed on the ballot, they must register with the Secretary of State10 and establish a state executive committee and county committees "in each county in which the body operates if it operates in two or more counties."11 Their candidates must be nominated in a convention held at least 90 days before the party primaries.12 They then file nominating petitions with the Secretary of State on the second Wednesday in June,13 the same date party candidates qualify for the primary, certifying those persons actually nominated in the body convention14 and signed by 5% of the total number of registered voters in the preceding election for the particular office sought.15 Signatures may be secured any time within the six months (180) days immediately prior to the June filing date,16 and although voters may sign each petition only once, they may sign as many different petitions as they wish and are not thereafter disqualified from participating in the party primaries.

Independent candidates may gain access to the ballot simply by filing their nomination petitions in June, circulated within the preceding 180 days and signed by the requisite 5% of the registered voters in the prior election for that office.17

The plaintiffs were nominated by the American Party of Georgia as candidates for the United States Congress, Georgia General Assembly, Clayton County School Board, Clayton County Commission of Roads and Revenue, and the Presidential Electoral College. They brought this action on May 18, 1976, before the June 9, 1976 filing date. Later, three of the plaintiffs were successful in gathering the necessary signatures by the required time and will appear on the November election ballot.18 The remaining candidates, unable to secure signatures of 5% of the voters by the deadline, continued their efforts up until August 18, 1976, the filing date for party primary winners, but could accumulate no more than 6,000 signatures out of approximately 109,000 needed to comply with the Georgia statute.19

The plaintiffs argue that Jenness determined only the constitutional validity of qualifying requirements for independent candidates, and not those for political bodies. Citing Salera and its progeny, they now complain that the six-month period for procuring signatures and the June filing date are so remote from the primaries and the general election as to unduly burden their First Amendment right of association and infringe upon their right to vote. They claim that they are compelled to gather support in a political vacuum, as early as the preceding December, when opposition candidates are unknown, issues are not yet defined and political enthusiasm is low. Their efforts are hampered, they say, by adverse weather conditions, short days and a public more concerned with winter holidays that the upcoming general election. All of this, they urge, makes it difficult for minor political organizations to gain enough support to appear on the ballot, decreasing their opportunity to gain the 20% vote required to qualify as a political "party," much less win an election, thereby invidiously discriminating against new political groups in violation of the Equal Protection Clause.

The defendant views Jenness as dispositive and contends that it upheld all qualifying requirements of the Georgia Election Code in a broad constitutional attack. The defendant also reasons that the filing deadline is justified for compelling reasons in assuring that candidates have at least a modicum of community support, preventing a "laundry list" ballot, insuring the integrity of the two-party system and the election process, and easing administrative burdens in processing and verifying petitions in time for ballot preparation.

The Georgia Socialist Workers Party, a political body, was one of the plaintiffs before the district court in Jenness, and although it was not an appellant in the Supreme Court, Justice Stewart, speaking for the majority, noted:

The Georgia Socialist Workers Party was one of the plaintiffs in the District Court, but is not an appellant here. We may assume, however, without deciding, that the individual appellants can properly assert the interests of that "political body."

403 U.S. at 441, n. 26, 91 S.Ct. at 1975.

Where particular provisions of state election codes come under constitutional attack, the Supreme Court has consistently analyzed the overall burden of the comprehensive election scheme, rather than evaluating each section separately, in a piecemeal fashion.20 McCarthy v. Briscoe, supra; American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In Jenness, the Court, comparing the Georgia plan with the Ohio election code held unconstitutional in Williams v. Rhodes, supra, said in part:

Unlike Ohio, Georgia freely provides for write-in votes. Unlike Ohio, Georgia does not require every candidate to be the nominee of a political party, but fully recognizes independent candidacies. Unlike Ohio, Georgia does not fix an unreasonably early filing deadline for candidates not endorsed by established parties. Unlike Ohio, Georgia does not impose upon a small party or a new party the Procrustean requirement of establishing elaborate primary election machinery. Finally, and in sum, Georgia's election laws, unlike Ohio's do not operate to freeze the political status quo. In this setting we cannot say that Georgia's 5% petition requirement violates the Constitution. emphasis added.
. . . . .
A candidate may enter the primary of a political party, or he may circulate nominating petitions either as an independent candidate or under the sponsorship of a political organization. We cannot see how Georgia has violated the Equal Protection Clause of the Fourteenth Amendment by making available these two alternative paths, neither of which can be assumed to be inherently more burdensome than the other.

403 U.S. at 438 and 440-441, 91 S.Ct. at 1974-1975. While a political body was not an appellant in Jenness, and the precise issues there were the constitutional validity of nominating petitions in general and the 5% voter signature rule, we believe that the Supreme Court, although not required to do so, held that the filing deadline, as a part of the entire Georgia election procedure, is constitutionally valid, and not so remote from the primaries and the general election as to violate the Equal Protection Clause. The ...

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2 cases
  • Libertarian Party of Washington v. Munro
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 Julio 1994
    ...which effectively allowed no new candidates to enter a race less than 60 days before the election); see also Ashworth v. Fortson, 424 F.Supp. 1178, 1180 (N.D.Ga.1976) (minor party nomination deadline 90 days in advance of major party primaries not significantly burdensome). But see Whig Par......
  • Rock v. Bryant
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • 19 Julio 1978
    ...appear on the petitions as well as to resolve any disputes that may have arisen and to review contested petitions. See Ashworth v. Fortson, 424 F.Supp. 1178 (N.D.Ga. 1976). Furthermore, in order to avoid or at best minimize confusion and frustration at the polls, voters should not be confro......

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