Fulani v. Krivanek

• Decision Date: 05 October 1992
• Docket Number: No. 91-3918,91-3918
• Citation: 973 F.2d 1539
• Parties: Dr. Lenora B. FULANI, individually and as the candidate for President of the United States on the slate of candidates from the New Alliance Party of Florida, and the New Alliance Party of Florida, Plaintiffs-Appellants, v. Robin KRIVANEK, Supervisor of Elections, Hillsborough County, Florida, individually and on behalf of all other Supervisors of Elections in the State of Florida, Defendant-Appellee, State of Florida, Intervenor-Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1539

973 F.2d 1539

Dr. Lenora B. FULANI, individually and as the candidate for President of the United States on the slate of candidates from the New Alliance Party of Florida, and the New Alliance Party of Florida, Plaintiffs-Appellants, v. Robin KRIVANEK, Supervisor of Elections, Hillsborough County, Florida, individually and on behalf of all other Supervisors of Elections in the State of Florida, Defendant-Appellee State of Florida, Intervenor-Defendant.

No. 91-3918.

United States Court of Appeals Eleventh Circuit.

Oct. 5, 1992.

James K. Green, West Palm Beach, Fla., Terry E. Allbriton, New Orleans, La., for plaintiffs-appellants.

John J. Dingfelder, Asst. County Atty., Hillsborough County Attorney's Office, Tampa, Fla., George Lee Waas, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH, Circuit Judge, CLARK, Senior Circuit Judge, and PITTMAN ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

In this ballot-access case, plaintiffs New Alliance Party ("NAP") and Lenora B. Fulani ("Fulani") appeal from the district court's ruling in favor of defendants State of Florida and Hillsborough County Supervisor of Elections Robin Krivanek ("Krivanek"). The district court held that Fla.Stat. § 99.097(4), which excludes minor political parties from a provision allowing candidates qualifying by petition to waive unduly burdensome signature-verification fees, does not violate the Equal Protection Clause or the First Amendment. We reverse.

BACKGROUND

Fulani was the NAP's candidate for President of the United States in the 1988 election. The NAP, which in 1988 was listed on the general-election ballots of all fifty states and the District of Columbia, is classified as a "minor political party" under Florida election law. ¹ Presidential candidates of the two major political parties are placed on the general-election ballot by the governor. See Fla.Stat. § 103.021(1) & (2). To gain access to the ballot, minor-party and independent candidates for President must submit petitions containing the signatures of at least one percent of the registered voters in the state. See Fla.Stat. § 103.021(3). It is well settled that such a difference in treatment does not violate the Constitution. See, e.g., American Party of Texas v. White, 415 U.S. 767, 793-94, 94 S.Ct. 1296, 1312, 39 L.Ed.2d 744 (1974).

Section 103.021(3) also provides that a minor-party or independent candidate must submit a separate petition to the supervisor of elections for each county from which signatures are solicited. The supervisors then check the signatures to certify their validity. Pursuant to section 99.097(4), the candidate must pay the supervisors "the sum of 10 cents for each signature checked or the actual cost of checking such signature, whichever is less." ² We have endorsed the constitutionality of conditioning access to the ballot on payment of this signature-verification fee, stating that "Florida's procedures are not impermissibly burdensome as to cost." See Libertarian Party of Florida v. Florida, 710 F.2d 790, 794 (11th Cir.1983), cert. denied, 469 U.S. 831, 105 S.Ct. 117, 83 L.Ed.2d 60 (1984). In 1988, there were 5,631,200 registered voters in Florida. To gain access to the ballot, the NAP needed to collect at least 56,312 signatures, which cost $5,631.20 to have verified.

Alternatively, by collecting signatures of at least 1.15 percent of the registered voters (rather than the minimum one percent), a candidate is entitled to have the supervisors check the signatures by random sample. See Fla.Stat. § 99.097(1)(b). Because the verification fee remains ten cents per signature actually checked, this method of verification can be considerably less expensive for the candidate. ³

The provision challenged by appellants states that:

if a candidate, person, or organization seeking to have an issue placed upon the ballot cannot pay such charges without imposing an undue burden on personal resources or upon the resources otherwise available to such candidate, person, or organization, such candidate, person, or organization, shall, upon written certification of such inability given under oath to the supervisor, be entitled to have the signatures verified at no charge. However, an oath in lieu of payment of the charges shall not be allowed to verify the signatures on a petition to obtain ballot position for a minor party.

Section 99.097(4) (emphasis added). ⁴

Fulani submitted the requisite number of signatures to the county supervisors of elections. She attempted to have the verification fee waived by submitting to defendant Krivanek an "affidavit of undue burden." The defendant rejected Fulani's affidavit. According to appellants, faced with the choice of "either diminish[ing] the financial resources of her campaign[ ] or not pay[ing] to have the signatures verified Fulani filed an action in the district court challenging the constitutionality of the statute and seeking injunctive relief, and the state intervened as a defendant. The district court denied relief, ruling that the statute did not violate the Equal Protection Clause or the First Amendment. Fulani filed a timely notice of appeal.

                (thereby preventing her name from being placed on the general election ballot)," Fulani paid the verification fee of $5,631.20.   The parties agreed that this case is not moot because of Fulani's plans to run for President in the future
                

DISCUSSION

Review is plenary. See East-Bibb Twiggs Neighborhood Assoc. v. Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264, 1265 (11th Cir.1989). Appellants argue that the provision of section 99.097(4) denying minor-party candidates the fee-waiver option violates the Equal Protection Clause because it is a discriminatory classification that unfairly burdens their fundamental First and Fourteenth Amendment right to associate politically by conditioning ballot access on paying a fee that unduly burdens their resources. Appellants do not contest the validity of the verification fee, but instead argue that the state may not discriminate as to which group may avoid paying the fee, at least when the state has failed to advance a sufficiently important interest that is furthered by this discriminatory classification.

Appellees contend that our decision in Libertarian Party, in which we upheld the constitutionality of a different portion of section 99.097(4), controls the disposition of this case. They further assert that expressly discriminating against minor-party candidates in the fee-waiver provision advances the important interests of, inter alia, regulating elections, and preventing voter confusion by limiting ballot access to political parties with a significant modicum of support.

Because the state has failed to explain how its asserted interests justify the discriminatory classification contained in section 99.097(4), we hold that the fee-waiver provision violates appellants' rights to equal protection in the exercise of their First and Fourteenth Amendment rights.

I. Distinguishing Libertarian Party

We note preliminarily that Libertarian Party, in which this court upheld three provisions of Florida's election law against equal protection and First Amendment challenges, does not control. In that case, the Libertarian Party first argued that Fla.Stat. § 99.096(1), which required that minor-party candidates for statewide office submit signatures of three percent of the state's registered voters to gain access to the general election ballot, impermissibly burdened their rights. We held that the three-percent requirement (1) advanced the state's "important interest 'in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot--the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.' " Id. at 793 (quoting Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971)); and (2) was the "least drastic means" to protect this interest. Id. at 793. Appellants here do not challenge the one-percent-signature requirement for access to the Presidential ballot.

Second, the Libertarian Party challenged the provision of Fla.Stat. § 99.096(1) that "a minor political party may not run a candidate in a local election without first obtaining access to the state's general election ballot through the 3% statewide petitioning requirement," while an independent candidate could run in a local election without circulating a statewide petition. Id. at 795. We held that, in such a situation, the disparity in treatment was justified because the requirement of statewide support for minor-party candidates achieved the goal of assuring the voters and the state that "particular party designation has some meaning in terms of a 'statewide, ongoing organization with distinctive political character.' " Id. (quoting Storer v. Brown, 415 U.S. 724, 745, 94 S.Ct. 1274, 1286, 39 L.Ed.2d 714 (1974)), while the state's interest in ensuring that an independent is "truly independent," id. (quoting Storer, 415 U.S. at 745, 94 S.Ct. at 1286) would not be advanced by a statewide-petition requirement.

Finally, we rejected the Libertarian Party's challenge to section 99.097's signature-collection requirement, holding (1) that "Florida's procedures are not impermissibly burdensome as to cost" and (2) "[t]hat minor parties must incur some expenses in accumulating the necessary signatures to qualify for the ballot does not constitute an equal protection violation."

We did not, however, address in Libertarian Party the constitutionality of the fee-waiver provision because the Libertarian Party did not challenge it. ⁵ Thus, we could not have decided the issue. We did mention the fee-waiver provision, but only as part of a description of...