Georgia Socialist Workers Party v. Fortson

Citation315 F. Supp. 1035
Decision Date26 October 1970
Docket NumberCiv. A. No. 13515.
PartiesGEORGIA SOCIALIST WORKERS PARTY, Linda Jenness, Joseph Frederick Cole, Francis Grinnon, Clifford D. Conner, and Jim Gwin v. Ben W. FORTSON, Jr., Individually and as Secretary of State of the State of Georgia.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for plaintiffs.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Robert J. Castellani, Asst. Atty. Gen., Atlanta, Ga., for defendant.

Before BELL, Circuit Judge, and EDENFIELD and HENDERSON, Judges.

Probable Jurisdiction Noted October 26, 1970. See 91 S.Ct. 127.

EDENFIELD, District Judge:

The relevant facts in this action for declaratory and injunctive relief are not disputed. Plaintiff Georgia Socialist Workers Party (hereinafter GSWP) is a "political organization" within the meaning of Ga.Code Ann. § 34-103(t). Plaintiff Linda Jenness is a member of GSWP and desires to be a candidate for governor of Georgia. Plaintiffs Cole and Grinnon are GSWP members and desire to be candidates for Congress for the Fourth and Fifth Congressional Districts, respectively. Plaintiffs Conner and Gwin are voters in the Fourth and Fifth Districts, respectively. They desire to represent, as a class, all registered Georgia voters who desire to consider persons on the Georgia general election ballot other than Democratic or Republican nominees. Defendant Fortson is the Georgia Secretary of State.

Plaintiffs initially attacked the provisions for nominating petitions for non-party candidates under former Ga. Code Ann. § 34-1010 and provisions for qualification fees under former Ga.Code Ann. § 34-1004. These provisions were amended by House Bill No. 1304 which was approved by the Governor of Georgia on March 20, 1970. The United States Attorney General has approved these amendments to the election code as required by Section 5 of the Voting Rights Act of 1965. By amendment, plaintiffs now attack the comparable provisions of the new law.

Under the current Georgia law a "political party" is a political organization having candidates or electors who received 20% of the votes cast at the preceding gubernatorial or presidential election. Ga.Code Ann. § 34-103(u). A "political body" is a political organization which, like GSWP, did not maintain candidates for governor or presidential elector who received 20% of the vote in the preceding gubernatorial or presidential election. Ga.Code Ann. § 34-103(s). While political parties may nominate candidates through primaries without submitting nominating petitions, nominees of "political bodies" and independent candidates must file nominating petitions to obtain ballot space. Ga.Code Ann. § 34-1001. These nominating petitions must include the names "of not less than five percent of the total number of electors eligible to vote in the last election for the filling of the office the candidate is seeking * * *." Ga.Code Ann. § 34-1010(b). The total time allowed for circulating nominating petitions is 180 days (Ga.Code Ann. § 34-1010(e)); and the petitions must be filed by 12:00 noon on the second Wednesday in June. Ga.Code Ann. § 34-1001(b). Plaintiffs allege the petition requirements above create an invidious distinction between party members and non-party members and therefore violate plaintiffs' Fourteenth Amendment rights to equal protection of the law. Furthermore, plaintiffs allege the petition requirements unconstitutionally burden their First Amendment rights to freedom of speech, petition and association as well as their "right to vote."

Concerning the qualification fee requirements, current Georgia law provides that the qualification fee for candidates for gubernatorial and congressional office shall be 5% of the annual salary of the office. Ga.Code Ann. § 34-1013(a) (2). For the 1970 election the fees for the office of governor and congressman are $2125. Plaintiffs Jenness, Cole and GSWP have filed affidavits saying they cannot afford to pay the filing fees because of poverty. Plaintiffs allege the fee requirements invidiously discriminate against poor people in violation of the Equal Protection Clause; furthermore, plaintiffs allege the fee requirements deny poor people the right to run for office, to vote for candidates of their choice and to petition for redress of grievances in violation of the First and Fourteenth Amendments.

Plaintiffs allege jurisdiction under 28 U.S.C.A. §§ 1331, 1343(3) and (4), and 28 U.S.C.A. § 2201. The action is brought under 42 U.S.C.A. § 1983 and injunctive and declaratory relief is requested. Upon plaintiffs' application, a three-judge court was constituted pursuant to 28 U.S.C. §§ 2281, 2284, because plaintiffs are seeking injunctive relief against a statute of state-wide application. Plaintiffs have moved for summary judgment and filed supporting affidavits.

I. Standing

At the outset, the standing of the various parties to challenge the Georgia laws should be considered. Regarding the challenge to the nomination petition requirements, non-party candidates Jenness, Cole and Grinnon certainly have standing to challenge the requirements directly affecting them. The GSWP would also have standing to challenge the petition requirements. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed. 2d 24 (1968). The standing of voters Conner and Gwin could be questioned. Jenness v. Little, 306 F.Supp. 925, 927 (N.D.Ga.1969). The Court has not hesitated to find standing where voters were contesting denial of access to the ballot. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). Thus, it could be argued, voters should also have standing to contest the constitutionality of the content of the ballot to which they receive access. But in any event, since the candidates and GSWP clearly have standing to raise all the issues, and the voters do not request any relief not requested by the candidates and GSWP, the question of the voters' standing is not crucial. Regarding the qualification fee requirements, candidates Jenness, Cole and Grinnon again have standing. The GSWP would also have standing to challenge the fees to which its candidates are subjected, Again, the question of the voters' standing is not clear, but is not crucial since other plaintiffs have standing to assert all the allegations raising the questions to be considered.

II. Nominating Petition Requirements

Plaintiffs base their claim that the nominating petition requirements violate plaintiffs' rights to equal protection of the law on Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In Williams the plaintiffs attacked a series of Ohio election laws requiring, among other things, that presidential electors for non-party candidates file petitions signed by voters totaling 15% of the number of ballots cast in the last preceding gubernatorial election. Candidates of political organizations qualifying as parties did not have to file nominating petitions. Considering these and other Ohio election laws, the Court held "the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause." (Emphasis supplied.) 393 U.S. at 34, 89 S.Ct. at 12.

But the maze of Ohio laws struck down in Williams contained restrictions far more severe than Georgia's simple requirement concerning the number of names required on a nominating petition. It would be difficult to describe the combined restrictions imposed by Ohio any better than did Mr. Justice Douglas in his concurring opinion in Williams. As he says:

"Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes so as to restrict candidacy to names on the ballot; it has eliminated all independent candidates through a requirement that nominees enjoy the endorsement of a political party; it has defined `political party' in such a way as to exclude virtually all but the two major parties.
"A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary of State in February. That is not all: having compiled those signatures, the candidate must further show that he has received the nomination of a group which qualifies as a `political party' within the meaning of Ohio law. It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.
"To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county central committee; two of its members from each congressional district to a state central committee; and some of its members as delegates and alternates to a national convention. Moreover, those of its members who seek a place on the primary ballot as candidates for positions as central committeemen and national convention delegates must demonstrate that they did not vote in any other party primary during the preceding four years; and must present petitions of endorsement on their behalf by anywhere from five to 1,000 voters who likewise failed to vote for any other party in the last preceding primary. Thus, to qualify as a third party, a group must first erect elaborate political machinery, and then rest it upon the ranks of those who

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