Duke v. Cleland

• Decision Date: 14 March 1995
• Docket Number: No. 1:92-cv-116-RCF.,1:92-cv-116-RCF.
• Parties: David DUKE, et al. v. Max CLELAND, et al.
• Court: U.S. District Court — Northern District of Georgia

884 F. Supp. 511

David DUKE, et al. v. Max CLELAND, et al.

No. 1:92-cv-116-RCF.

United States District Court, N.D. Georgia, Atlanta Division.

March 14, 1995.

COPYRIGHT MATERIAL OMITTED

Oscar N. Persons, Michael P. Kenny, Alston & Bird, and Frank B. Strickland, Wilson, Strickland & Benson, Atlanta, GA for defendant Alec Poitevint.

Michael Bowers, Atty. Gen., and Dennis R. Dunn, Sr. Asst. Atty. Gen., for defendants Max Cleland and Presidential Candidate Sel. Com.

Neil Bradley, Mary Wyckoff, Laughlin McDonald, ACLU Foundation, Gerald R. Weber, ACLU, Atlanta GA, and Samuel G. Dickson, Marietta, GA, for plaintiffs.

ORDER

RICHARD C. FREEMAN, Senior District Judge.

This action is before the court on plaintiffs' motion for summary judgment # 47-1; defendant Max Cleland Cleland's motion for summary judgment # 45-1; and defendant/intervenor Alex Poitevint Poitevint's motion for summary judgment # 44-1.¹ The motions are opposed.

BACKGROUND

Plaintiff David Duke ran for the Republican nomination for President in 1992. Duke's name, however, was excluded from the Republican primary ballot in Georgia when all three Republican members of the candidate selection committee the Committee, acting pursuant to Georgia statute, voted to remove Duke's name from the ballot.

The Committee was formed pursuant O.C.G.A. § 21-2-193(a), and consists of the Georgia Secretary of State, a non-voting member who at the time was defendant Cleland, the Speaker of the House of Representatives, the majority leader of the Senate, the minority leaders of both the House and Senate, and the chairpersons of both the Democratic and Republican parties. Under § 21-2-193(a), the Secretary of State submits an initial list of presidential candidates to the Committee. The list is comprised of presidential candidates "who are generally advocated or recognized in the 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." Id. Acting pursuant to statute, Cleland submitted his list to the Committee, including Duke's name.

Section 21-2-193(a) permits a potential candidate's name to be deleted from the ballot if all committee members of the same political party vote to drop the name. As previously noted, all three Republican committee members so voted. As permitted by § 21-2-193(b), Duke then requested that his name be placed upon the ballot, effectively asking for reconsideration. If any member of the Committee of the same political party of the candidate requests that the name be added to the ballot, then the Secretary of State must place the name on the ballot. Id. No Republican member of the Committee so voted, and Duke's name remained off the ballot.

PROCEDURAL HISTORY

This action has been to the Eleventh Circuit on appeal twice. In Duke v. Cleland, 954 F.2d 1526 (11th Cir.1992) Duke I, the Eleventh Circuit affirmed this court's denial of plaintiffs' request for an injunction and temporary restraining order, which request would, if granted, have prevented the printing of ballots for Georgia's presidential preference primary unless plaintiff David Duke were listed as a Republican candidate. The only issue on that appeal, however, concerned whether the Committee unconstitutionally excluded Duke from the ballot on the basis of his political beliefs. See id., 954 F.2d at 1530 n. 5 (defining the scope of plaintiffs' challenge). The Eleventh Circuit ruled that plaintiffs had shown no likelihood of success on the merits because the Republican Party's right to define its membership trumped whatever right Duke had to associate with the party, and the party's associational interests clearly outweighed the other plaintiffs' right to vote for Duke in the Republican primary. Id., passim.

Subsequent to that determination, plaintiffs amended their complaint to make a facial challenge to the Georgia statute regulating ballot access, alleging that the statue violates their rights under the First and Fourteenth Amendments. This court granted defendants' motions to dismiss on the grounds that there was no state action in the denial of ballot access to Duke, and that the statute did not violate plaintiffs' rights. On appeal, Duke v. Cleland, 5 F.3d 1399 (11th Cir.1993) (Duke II), the Eleventh Circuit held that the Committee's action did constitute state action, and that remand was appropriate to determine "with particularity the interests purportedly advanced by O.C.G.A. § 21-2-193 ... and to weigh them against the purported burden upon the plaintiffs' constitutional rights, then apply the proper level of scrutiny pursuant to the teachings of Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)." Duke II, 5 F.3d at 1405-06. Following the Eleventh Circuit's mandate, the court proceeds to do just that.

DISCUSSION

A. Summary Judgment Standard

Under Fed.R.Civ.P. 56, the court should grant a motion for summary judgment where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." The movant carries his burden by showing the court that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). As the Eleventh Circuit has explained, "only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The nonmovant is then required "to go beyond the pleadings" and present competent evidence in the form of affidavits, depositions, admissions and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 334, 106 S.Ct. at 2553. Generally, "the mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The court, resolving all reasonable doubts in favor of the nonmovant, must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id.

B. The Interests of the State

It is settled law that states may regulate the "time, place, and manner" of elections, and thus have a corresponding interest therein. E.g., Burdick, 504 U.S. at 433-34, 112 S.Ct. at 2063. Indeed, as the Burdick Court noted, common sense dictates that the states must have involvement in the election process. Id. One of these commonsense modes of involvement is the determination of how many names appear on a ballot. This determination by the state necessarily implies a determination as to who appears on the ballot. See Anderson, 477 U.S. at 786-90 and n. 9, 103 S.Ct. at 1569-70 and n. 9 (citing cases upholding restrictions on ballot access). Thus, interests of the state are implicated in the ballot access arena.

Defendants do not argue, however, that the state's interests in regulating ballot access as applied to the facts of this case involve only issues of expediency or efficiency. Rather, defendants assert that the state also maintains an interest in protecting the rights of political parties to define their membership, and that § 21-2-193(a) and (b) is the mechanism by which that interest is vindicated. As a threshold matter, there is no doubt that the Republican Party possesses a clear and well-fortified First Amendment right to define its membership. See Duke I, passim. The essence of the holding in Duke I is that, although the Republican members of the Committee excluded Duke on the basis of his political beliefs, the right of the party to associate and "protect itself from those with adverse political principles" was a compelling interest superior to plaintiff's asserted right. Id., 954 F.2d at 1532-33.

It should be equally clear that the state has an interest in protecting, enforcing, and vindicating the rights of its citizens, including political parties. More important, even if the state possesses no "positive" interest in actively enforcing private rights, the state has an undeniable obligation to avoid infringing those rights. Because the state has a basic obligation to regulate elections, and because that regulation will "invariably impose some burden" upon voters and parties, Burdick, 504 U.S. at 433, 112 S.Ct. at 2063, the state has both an interest and a constitutional duty to tread lightly around such freedoms as the right of parties to define their membership when regulating such matters as ballot access. Whether the State of Georgia did in fact tread lightly in all respects is a separate inquiry; the point at this juncture is the fact that the State of Georgia has an interest (perhaps even a duty in the context of ballot access) in maintaining and facilitating the Republican Party's ability to control its identity.

Recognizing that the determination of the existence of a state's interest is a matter of proof, see Sherbert v. Verner, 374 U.S. 398, 405-07, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), the Eleventh Circuit remanded to this court for a clear determination of the interests of the state, a determination that this court must assume is at least in part a factual determination. Even though the court finds the law settled and the interest clear, in this regard, the court finds the statute itself indicative and probative of the interest. As the parties agree, because the State of Georgia maintains no formal legislative history for its statutes, the best evidence of the intent of the General Assembly is the language of the statute. See Burgess v. Meinken, 204 Ga.App. 600, 420 S.E.2d 329, 330-31 (1992). Georgia's statutory scheme expressly contemplates the inclusion of...