Green Party of Ga. v. Kemp

• Citation: 171 F.Supp.3d 1340
• Decision Date: 17 March 2016
• Docket Number: CIVIL ACTION NO. 1:12-CV-01822-RWS
• Parties: Green Party of Georgia and Constitution Party of Georgia, Plaintiffs, v. Brian Kemp, Georgia Secretary of State, Defendant.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

171 F.Supp.3d 1340

Green Party of Georgia and Constitution Party of Georgia, Plaintiffs,
v.
Brian Kemp, Georgia Secretary of State, Defendant.

CIVIL ACTION NO. 1:12-CV-01822-RWS

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

Signed March 17, 2016

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J. M. Raffauf, Office of J.M. Raffauf, Marietta, GA, Moffatt Laughlin McDonald, American Civil Liberties Union Foundation, Atlanta, GA, for Plaintiffs.

Julia B. Anderson, State of Georgia Law Department, Cristina Correia, Russell D. Willard, Stefan Ernst Ritter, Attorney General's Office, Department of Law, Kelly E. Campanella, Georgia Department of Law, Atlanta, GA, for Defendant.

ORDER

RICHARD W. STORY, United States District Judge

This case comes before the Court on Defendant Brian Kemp's Motion for Summary Judgment [75], Plaintiffs' Motion for Summary Judgment [76], and Plaintiffs' Motion to Strike Defendant's Reply Brief [84]. After reviewing the record, the Court enters the following Order.

Background

Plaintiffs the Green Party of Georgia (“Green Party”) and the Constitution Party of Georgia (“Constitution Party”) brought this case in advance of the 2012 Presidential Election, challenging Georgia's ballot access laws.

Plaintiffs challenge O.C.G.A. § 21–2–170, which requires a candidate from a political body seeking inclusion on an election ballot for an office that is voted upon statewide to obtain signatures in a nominating petition from at least one percent of the registered voters eligible to vote in the last election. Plaintiffs seek injunctive relief and a declaration that this provision unconstitutionally burdens Plaintiffs' rights under the First and Fourteenth Amendments.

Under Georgia law, a “political party” is any political organization whose candidate received 20 percent of the votes cast in the preceding gubernatorial or presidential election. O.C.G.A. § 21–2–2(25). A candidate may appear on Georgia's election ballot if he or she is nominated in a primary conducted by a political party. O.C.G.A. § 21–2–130(1).

But independent candidates and candidates representing “political bodies” may appear on the election ballot as well. Georgia law provides that such a candidate may access the ballot if he or she submits a nomination petition signed by a specified percentage of voters (one percent for a presidential election). O.C.G.A. § 21–2–170(b).

Plaintiffs filed the present action asserting that each is a political organization or “body” registered under O.C.G.A. § 21–2–110 and § 21–2–113 “desiring to be a qualified party for the purposes of having its candidate put on the 2012 Presidential Ballot in Georgia.” (Compl., Dkt. [1] ¶3.) Each of the Plaintiffs alleges that it “meets all the statutory requirements to place its presidential candidate on the ballot except

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for the petition requirements of O.C.G.A. § 21–2–170.” (Id.) Plaintiffs allege that “[t]hese signature requirements are in excess of those that satisfy constitutional standards and unduly infringe upon the constitutional rights of the Plaintiffs to participate in the electoral process.” (Id.¶18.) Thus, Plaintiffs ask this Court to declare this statutory scheme unconstitutional and order “that the Plaintiffs be placed on the 2012 Presidential Ballot in Georgia.” (Id. at 5.)

This case has had a long history in this Court and in the Eleventh Circuit Court of Appeals. In the interim, the 2012 Presidential Election has come and gone.¹ Now, facing the 2016 Presidential Election, the Court once again recites the procedural history and facts relevant to the present motions.

I. Procedural Background

The Court dismissed Plaintiffs' Complaint on July 17, 2012, concluding that because higher courts have held that the requirement under O.C.G.A. § 21–2–170 for a petition containing at least five percent of the registered voters for certain elections was not unconstitutional, the requirement that a presidential candidate's petition contain one percent of the registered voters would not be unconstitutional. (Dkt. [4].) Plaintiffs moved for reconsideration, which the Court similarly denied, relying on Supreme Court and Eleventh Circuit precedent in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) ; Cartwright v. Barnes, 304 F.3d 1138 (11th Cir.2002) ; and Coffield v. Kemp, 599 F.3d 1276 (11th Cir.2010), to again conclude that Georgia's ballot petition requirements were not unconstitutional and that therefore Plaintiffs had not stated a claim upon which relief may be granted.

Plaintiffs appealed to the United States Court of Appeals for the Eleventh Circuit. On January 6, 2014, the Court of Appeals reversed and remanded, holding that this Court employed the type of “litmus-paper test” that the Supreme Court rejected in Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and directing this Court to instead apply Anderson's balancing approach. Green Party of Ga. v. Georgia, 551 Fed.Appx. 982 (11th Cir.2014) (hereinafter, “Green Party I”). The Court of Appeals further held that this Court erred in dismissing Plaintiffs' action because past decisions “do not foreclose the parties' right to present the evidence necessary to undertake the balancing approach outlined in Anderson.” Id.(citing Bergland v. Harris, 767 F.2d 1551, 1554 (11th Cir.1985).)²

On May 19, 2015, applying the Anderson standard as instructed, the Court issued an Order denying Plaintiffs' (First) Motion for Summary Judgment. Green Party of Ga. v. Kemp, 106 F.Supp.3d 1314, 1321 (N.D.Ga.2015) (hereinafter, “

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Green Party II”).³ The parties engaged in additional discovery and filed the present cross-motions for summary judgment on the developed record.

II. Factual Background⁴

Each Plaintiff is a political organization or “body” registered under O.C.G.A. § 21–2–110 and § 21–2–113 and “meets all the statutory requirements to place its presidential candidate on the ballot except for the petition requirements of O.C.G.A. § 21–2–170.” (Pls.' Statement of Material Facts on Mot. for Summ. J. or Alternatively Mot. for a Prelim. Inj. (“Pls.' 1st SOMF”), Dkt. [8] ¶ 1-2; 2012 Esco Aff., Dkt. [7-1]; 2012 Haag Aff., Dkt. [7-2].)

Defendant Brian Kemp is Georgia's Secretary of State. (Pls.' 1st SOMF, Dkt. [8] ¶ 3.) Under O.C.G.A. § 21–2–50, the Secretary of State is charged with significant duties related to the regulation and supervision of the elections process in Georgia.

A. History of Georgia's Ballot Access Restrictions

In 1922, Georgia passed a law that authorized government-printed ballots. (Pl.'s Statement of Material Facts to Which There is No Genuine Issue to be Tried (“Pls.' SOMF”), Dkt. [76-2] ¶ 9.) Prior to that, Georgia had no ballot access law. (Id.¶ 8.) From 1922 until 1943, independent and political party candidates could access the November ballot “with no petition and no fee.” (Id.¶ 9.) In 1943, Georgia adopted a 5% petition requirement for access to the general election ballot.⁵ (Id.¶ 11.)

In 1944, 27,500 signatures were required to access the presidential ballot in Georgia; no candidates qualified. (App'x to 2015 Winger Aff., Dkt. [76-3] at 8.) In 1960, candidates needed 65,530 signatures and in 1964, candidates needed 65,107 signatures; no candidates qualified either year. (Id. at 9.) In 1968, one party cleared the 83,339 signature threshold. (Id.) In 1972 and 1976, candidates needed to collect 98,022 and 108,395 signatures, respectively; no third-party or independent candidates were on Georgia's ballot either year. (Id.) In 1980, two candidates qualified with over 57,540 signatures. (Id.)

Georgia's election code was amended to include the current one percent petition requirement in 1986.⁶ (Pl.'s 1st SOMF, Dkt. [8] ¶ 8.)

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In 1992, Ross Perot collected at least 26,955 signatures to be the sole qualifying candidate. (App'x to 2015 Winger Aff., Dkt. [76-3] at 9.) In 1996 and 2000, respectively, the Reform party garnered at least 30,036 and 39,094 signatures. (Id.) Since 2000, no independent or third-party candidate has qualified by petition. The signature requirement in 2004 was 37,153; in 2008, 42,489; and in 2012, 50,334. (Id.)

In addition to the number of signatures required by O.C.G.A. § 21–2–170, Georgia law imposes other requirements on candidates seeking to access a ballot through petition. Each sheet of a political body or independent candidate's nomination petition must bear the circulator's affidavit, which must be subscribed and sworn before a notary public. O.C.G.A. § 21–2–170(d). The affiant must, inter alia , swear that each signature was signed within 180 days of the last day on which the petition may be filed. Id. Additionally, different sheets must be used by signers residing in different counties or municipalities. Id.

As an alternative to the petition procedure for candidates set forth in O.C.G.A. § 21–2–170, Georgia law provides that a registered political body may place a candidate on the ballot by nomination at its convention through one of two avenues.⁷ O.C.G.A. § 21–2–180. First, a...