Duke v. Cleland, 1:92-cv-116-RCF.

• Citation: 783 F. Supp. 600
• Decision Date: 21 January 1992
• 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

783 F. Supp. 600

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

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

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

January 21, 1992.

Sam Glasgow Dickson, Griffin Dickson & O'Toole, Neil T. Bradley, Moffatt Laughlin McDonald, Kathleen L. Wilde, Mary Ellen Wyckoff, American Civil Liberties Union, Southern Regional Office, Gerald R. Webber, American Civil Liberties Union, Atlanta, Ga., for plaintiffs.

Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Sr. Asst. Atty. Gen., Atlanta, Ga., for defendants.

Oscar N. Persons, Alston & Bird, Atlanta, Ga., for intervenor.

ORDER

RICHARD C. FREEMAN, Senior District Judge.

Plaintiffs came to this court on January 16, 1992 seeking a temporary restraining order and a preliminary injunction. The court set a hearing for January 18, 1992.¹ All defendants were sued in their official capacities.

Following the hearing, and after carefully considering all arguments before the court, the court finds that the movants in this action have not "clearly" carried their burden of persuasion as to each of the four elements required for a preliminary injunction.

STATEMENT OF THE FACTS

Plaintiffs have filed a verified complaint alleging that defendants have denied plaintiffs' rights of free speech and association by denying plaintiff and presidential aspirant, David Duke, access to the Republican primary ballot.

Plaintiffs claim that Mr. Duke meets the objective preliminary criteria generally used to evaluate candidates for inclusion on the ballot, and that he was initially recommended for the ballot by defendant Cleland, in his official capacity, but was voted off by the Republican members of the primary selection committee. See O.C.G.A. § 21-2-193. Plaintiffs further argue that the party members who voted to exclude Mr. Duke from the ballot were acting as part of the state apparatus and not in their "private" "party" capacities. Finally, plaintiffs propose that the sole reason for exclusion from the ballot was invidious discrimination based on Mr. Duke's political views and associations, which should be protected under the United States Constitution's first amendment.

The ballots are ready to be sent to the printer without Mr. Duke's name on them. Plaintiffs seek a temporary restraining order and preliminary injunction enjoining defendants from sending the Republican primary ballot to the printer without Mr. Duke's name included.

INJUNCTIVE RELIEF

As in Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga.1980) (Freeman, J.), the movants seek to preliminarily enjoin the printing of the Georgia Presidential Primary ballots without Mr. Duke's name on it. The standard for granting preliminary injunctive relief requires that plaintiffs prove four separate elements: "(1) a substantial likelihood that they will ultimately prevail on the merits; (2) that they will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movants outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest." Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985) (citation omitted). Furthermore, "a preliminary injunction is an extraordinary remedy and should not be granted unless the movant `"clearly carries the burden of persuasion"' on all four elements." Sofarelli v. Pinellas County, 931 F.2d 718, 724 (11th Cir.1991) (quoting United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974))).

I. IRREPARABLE INJURY

Plaintiffs attempt to establish that without the intervention of the court, their first amendment rights of engaging in political campaigning and voting in the primary for their candidate will be forever lost.² Because the violation of plaintiffs' first amendment rights is their only claim for both the irreparable injury prong and the substantial likelihood prong, the court will discuss them jointly. Unless the plaintiffs show the court that the right exists, they can neither succeed on the irreparable injury element, nor on the likelihood of success element.

The case of Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga.1980) is determinative of the issue of rights. Plaintiffs have a heavy burden to persuade the court of the existence of their first amendment rights, yet they have failed to even distinguish their action from the claims in Belluso. While Mr. Belluso challenged a different part of the decision-making process, it is clear that he claimed the exact same first amendment rights that are presented in this action. Id. at 906 (access to the primary ballot of the Republican Party of Georgia claimed to be a first amendment right). In Belluso, this court distinctly held that, "the right to appear on a general election ballot is constitutionally favored, but less than fundamental." Belluso, 485 F.Supp. at 911.

The court further indicated that there is no right whatsoever to be included on the primary ballot of a party which does not, itself, extend that right. Id. at 912. The political parties are autonomous in their extension of the right to represent their party. "Parties have long been free to strategize and act — at least before the voting begins — in the closed and clouded atmosphere of the smoke-filled room. Parties exercise rights of free speech and association when they assert this prerogative.... Belluso asserts no group's interest in advancing his candidacy. His claimed need to `associate' with an unwilling partner, the Republican party in Georgia, is not a first amendment right." Id. (citing Ripon Society v. National Republican Party, 525 F.2d 567, 584-86 (D.C.Cir.1975) (en banc), cert. denied, 424 U.S. 933, 96 S.Ct. 1147 & 1148, 47 L.Ed.2d 341 (1976). Likewise, plaintiffs have failed to show the court that a first amendment right exists which guarantees access to a party's primary ballot (in direct contravention of the party's stated desires).

Moreover, plaintiffs' claimed injury has not been affected by the alleged state action. Plaintiffs claim that "the loss of first amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunctive Relief Plaintiffs' Memorandum, at 15. However, plaintiffs have not demonstrated that Mr. Duke and his supporters could not "engage in political campaigning and organizing for the election." Id. Plaintiffs have cited no law which prevents them from organizing or campaigning outside the parameters of the Republican Party Primary. Mr. Duke's absence from the primary ballot in no way prevents him from accessing the general ballot. Plaintiffs have not shown the court anything preventing Mr. Duke from running as an independent candidate or as a write-in candidate on the general election ballot. Finally, plaintiffs have failed to show the court any barrier preventing Mr. Duke's Republican supporters from spearheading a campaign at the national convention promoting Mr. Duke as the party's national representative. In essence, plaintiffs did not show this court that Mr. Duke could not become the Republican Party's representative on the general election ballot. "A candidate who loses in Georgia could still appear on the general election ballot as the party's nominee." Plaintiffs' Memorandum, at 14 (citing Anderson v. Celebrezze, 460 U.S. 780, 804, 103 S.Ct. 1564, 1578, 75 L.Ed.2d 547 (1983). Therefore, because this court finds that plaintiffs have not established any injury and hence the irreparability of any injury, the court cannot issue any form of injunctive relief. The plaintiffs cannot receive the injunction they request if they fail to show any one of the four-prong test. By not proving their injury they fail the first two. Sofarelli v. Pinellas County, 931 F.2d 718, 724 (11th Cir.1991).

II. SUBSTANTIAL LIKELIHOOD OF SUCCESS

In order to meet their burden under the substantial likelihood of success prong, the plaintiffs must show the court that they would ultimately prevail on the merits of their claim. Sofarelli v. Pinellas County, 931 F.2d 718, 723-24 (11th Cir.1991). Therefore, plaintiffs must demonstrate the court that: (1) the claimed constitutional right exists;³ (2) the alleged action was state action; (3) the alleged state action infringed (or would infringe) on plaintiffs' rights; and (4) there are no counterbalancing rights or interests. The first, third and fourth aspects are dealt with in other sections. The threshold question for the likelihood of success is whether the action complained of is "state action."

This court has recently outlined the various means by which private actors may engage in state action. "The proper inquiry is whether the defendant's conduct is `fairly attributable' to the state. A person may qualify as a state actor because he receives overt assistance from state officials, acts in concert with other state actors, where his authority was delegated to him by the state, or where the state creates the legal framework governing the conduct." Baxter v. Fulton-DeKalb Hospital Authority, 764 F.Supp. 1510, 1517 (N.D.Ga.1991) (Forrester, J.) (citations omitted).

The Georgia legislation governing the process of primary candidate selection is O.C.G.A. § 21-2-193. In pertinent part it states:

The Secretary of State ... shall prepare and publish a list of names of potential presidential candidates 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 this state; provided, however, that the Secretary of State shall not include on such list the name of any potential presidential candidate who, if elected to the office of President of the United States, would be ineligible

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