Duke v. Cleland, 92-8048
| Decision Date | 11 February 1992 |
| Docket Number | No. 92-8048,92-8048 |
| Citation | 954 F.2d 1526 |
| Parties | David DUKE, Martha Andrews, William Gorton and Victor Manget, Plaintiffs-Appellants, v. Max CLELAND, Secretary of State of the State of Georgia and Chair of the Presidential Candidate Selection Committee; and Presidential Candidate Selection Committee, Defendants-Appellees, Alec L. Poitevint, Member of the Presidential Candidate Selection Committee, Defendant-Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Griffin, Dickson & O'Toole, Marietta, Ga., Neil T. Bradley, Moffatt Laughlin McDonald, Mary Ellen Wyckoff, American Civ. Liberties Union, Southern Regional Office, Gerald R. Weber, American Civ. Liberties Union, Atlanta, Ga., for plaintiffs-appellants.
Dennis R. Dunn, Sr. Asst. Atty. Gen., Atlanta, Ga., for Cleland and Presidential Candidate Selection Committee.
Oscar N. Persons, Howard D. Hinson, David J. Stewart, Lonnie Theodore Brown, Scott C. Commander, R. Clay Milling, Alsont & Bird, Frank Strickland, Atlanta, Ga., for Poitevint.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH, ANDERSON and COX, Circuit Judges.
FACTS
On December 4, 1991, appellant Duke announced his candidacy for the Republican nomination for President of the United States. Under Georgia law, a presidential preference primary shall be held in 1992 "so that the electors may express their preference for one person to be the candidate for nomination by his party or body for the office of President of the United States." O.C.G.A. § 21-2-191. Political parties participating in Georgia's primary may establish their own rules regarding the selection of delegates to nominating conventions. O.C.G.A. § 21-2-195. The rules of Georgia's Republican Party bind its delegates to vote at the Republican national convention for the candidate who receives the most votes in Georgia's preference primary. 1
Georgia law establishes a presidential candidate selection committee ("Committee") to perform the duty of selecting the candidates that will appear on the presidential preference primary ballot. O.C.G.A. § 21-2-193(a). 2 Georgia's Secretary of State prepares an initial list of presidential candidates and submits this list to the Committee. O.C.G.A. § 21-2-193(a). This list includes names of 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 the state. Id.
Pursuant to this statutory duty, during the first week in December 1991, Max Cleland, Georgia's Secretary of State, published a list of names of potential presidential candidates for the 1992 Georgia presidential preference primary. This list included appellant's name as one of the potential candidates for the Republican nomination for President. During the second week of December 1991, Cleland submitted this list to the Committee.
On December 16, 1991, the Committee met to consider the list of candidates. Under Georgia law, "[e]ach 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 agree to delete such candidate's name from the ballot." Id. In this case, all the Republican Committee members--state Republican party chair Alec Poitevint, Senate Minority Leader Tom Phillips and House Minority Leader Paul Heard--agreed to remove Duke's name from the ballot. The Secretary of State subsequently published the list of presidential candidates exactly as slated by the Committee, thereby omitting Duke's name from the ballot. See id.
Before the January 6, 1992, statutory deadline, Duke then made a request in writing to the Secretary of State that his name be placed on the ballot. See O.C.G.A. § 21-2-193(b). On January 8, 1992, the Committee reconvened to consider Duke's request. Under Georgia law, had any Republican member of the Committee requested that Duke's name be placed on the presidential preference primary ballot, the Committee would have been bound to instruct the Secretary of State to include his name on the ballot. Id. However, none of the Republican members of the Committee asked to include Duke's name on the ballot, and, accordingly, Duke's name has not been placed on the primary ballot.
On January 15, 1992, appellant Duke, together with appellants Martha Andrews, William Gorton, and Victor Manget, 3 commenced this action in the United States District Court for the Northern District of Georgia against Secretary of State Cleland and the Committee, challenging the constitutionality of Duke's exclusion from the presidential preference primary ballot. Appellants alleged that the Committee's actions denied appellants' First Amendment rights of free speech and association and sought a temporary restraining order, preliminary injunction and permanent injunction in order to prohibit the printing of ballots for Georgia's presidential preference primary unless appellant Duke was listed as a Republican candidate.
The district court held a hearing on January 18, 1992, at which time the court granted appellee Poitevint's motion to intervene. In a written order issued January 21, 1992, the district court denied appellants' motion for preliminary injunctive relief. 783 F.Supp. 600. The district court held that a grant of preliminary injunctive relief was inappropriate because appellants failed to prove (1) that a First Amendment right exists which guarantees access to the primary ballot of a party which does not, itself, extend that right, (2) that appellees' actions have deprived appellants of their First Amendment rights of association, (3) that the Committee's exclusion of Duke from the primary ballot constituted state action, (4) that the threatened injury to the appellants outweighed the damage the proposed injunction might cause to appellees, or (5) that the injunction would not be adverse to the public interest.
On January 21, 1992, appellants filed a notice of appeal and motion for injunction pending appeal. The district court denied the motion on January 22, 1992, at which time appellants filed an emergency motion for an injunction pending appeal with this court. In an order dated January 23, 1992, this court denied appellants' emergency motion, finding that "Duke has not demonstrated a substantial likelihood that he can succeed on the merits of his claim that his constitutional rights were violated by his being prevented from appearing on the ballot as a Republican."
Appellants filed a motion for an expedited appeal on January 24, 1992, and this court granted the motion on the same day. On January 27, 1992, this court amended the original briefing order and set this case for oral argument on February 6, 1992.
We begin by addressing appellees' contention that this controversy is moot because the ballots have already gone to the printer without David Duke's name on them. Appellees argue that because it is too late for Duke to be on the 1992 primary ballot, this case does not fall within the exception to the mootness doctrine in that it is " 'capable of repetition, yet evading review.' " Moore v. Ogilivie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969) (citing Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).
We conclude that appellees have not demonstrated that it is, in fact, "too late" for Duke's name to appear on the ballot or for appellants to obtain some other appropriate relief. Moreover, we hold that the case is not moot because "[t]here would be every reason to expect the same parties to generate a similar, future controversy subject to identical time constraints if we should fail to resolve the constitutional issues that arose in [1992]." Norman v. Reed, --- U.S. ----, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)
At the trial level, appellants sought a preliminary injunction in order to suspend the printing of the Georgia Presidential Primary ballots without David Duke's name on them. In order to prevail, a party seeking a preliminary injunction must establish: (1) a substantial likelihood that he will ultimately prevail on the merits; (2) a showing that he will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to him outweighs the harm the injunction may cause the opposing party; and (4) a showing that granting the injunction would not be adverse to the public interest. Cunningham v. Adams, 808 F.2d 815, 819 (11th Cir.1987); Johnson v. U.S. Department of Agriculture, 734 F.2d 774, 781 (11th Cir.1984); Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F.2d 1352, 1354-55 (11th Cir.1983). The district court denied the appellants' request for an injunction, and the ballots, therefore, were sent to the printer without the addition of David Duke's name.
This court has jurisdiction over this case under 28 U.S.C. § 1292(a)(1), the provision governing review of district court rulings on preliminary injunctions. Because this court is reviewing the district court's denial of a preliminary injunction, the appropriate standard of review is whether the district court abused its discretion. Cunningham v. Adams, 808 F.2d at 819; United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983). Acknowledging the narrow standard of review, we proceed to examine whether the district court abused its discretion in finding that appellants would not be likely to prevail on the merits. Because we conclude that appellants are unlikely to prevail on the merits, we do not address the other three prerequisites to the granting of an injunction. 4
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