Green v. Mortham

• Decision Date: 24 September 1998
• Docket Number: No. 98-2042,98-2042
• Citation: 155 F.3d 1332
• Parties: 12 Fla. L. Weekly Fed. C 106 Henry GREEN, Plaintiff-Appellant, v. Sandra Barringer MORTHAM, Secretary of State, State of Florida, in her official capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1332

155 F.3d 1332

12 Fla. L. Weekly Fed. C 106

Henry GREEN, Plaintiff-Appellant, v. Sandra Barringer MORTHAM, Secretary of State, State of Florida, in her official capacity, Defendant-Appellee.

No. 98-2042.

United States Court of Appeals Eleventh Circuit.

Sept. 24, 1998.

Mark R. Brown, University of Ilinois at Urbana-Champaign, College of Law, Champaign, IL, for Plaintiff-Appellant.

George Lee Waas, Dept. of Legal Affairs, Tallahassee, FL, for Defendant-Appellee.

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

Before TJOFLAT, COX and HULL, Circuit Judges.

HULL, Circuit Judge:

In this ballot access case, Appellant Henry Green challenges the constitutionality of Florida's alternative qualifying fee and signature petition requirements for ballot access in a Congressional primary election. ¹ The magistrate judge held that Florida's alternative ballot access requirements in a Congressional primary election are constitutional. ² We affirm.

I. BACKGROUND

In the Spring of 1996, Henry Green, a registered Democrat, desired to run for the Congressional seat from Florida's Tenth Congressional District. Green first had to win the Democratic primary to appear as the Democratic candidate on the general election ballot. Green had two ways to qualify for the Congressional primary ballot.

First, Green could pay a statutory qualifying fee equal to seven and a half percent of the annual salary for the office he sought, amounting to a $10,020 fee in 1996. Fla. Stat. Ann. § 99.092 (West Supp.1998). ³ This seven and a half percent qualifying fee represented the aggregate of three separate fees--a four and a half percent filing fee, a two percent election or trust fund assessment, and a one percent party assessment. Id. ⁴

Alternatively, Green could file a petition with signatures of three percent of the registered Democratic voters in Florida's Tenth Congressional District. Fla. Stat. Ann § 99.095 (West Supp.1998). ⁵ This petitioning alternative required 4,077 signatures. After swearing an intent to qualify by petition, a candidate is given "forms in sufficient numbers to facilitate the gathering of [the requisite] signatures." Fla. Stat. Ann. § 99.095(2) (1982).

Green did not meet either requirement by the respective deadline. On May 21, 1996, the Florida legislature extended the deadlines to June 10 for a signature petition and to June 21 for paying the qualifying fee. ⁶ Green admits he made no effort to collect signatures and qualify by petition.

On June 12, 1996, Green filed this action against Florida's Secretary of State, Sandra Barringer Mortham ("the Secretary of State"), seeking a declaration that Florida's ballot access requirements for primary elections were unconstitutional, injunctions against enforcement of those requirements, and attorneys' fees and costs. Green also filed a motion for an injunction ordering that his name be placed on the 1996 Democratic primary ballot for the Tenth District Congressional seat. The Secretary of State's answer stipulated to the facts stated in Green's complaint and asserted that Florida's ballot access statutes for primaries were constitutional.

One day before the new deadline for paying the fee, the Democratic Congressional Campaign Committee and the Florida Democratic Party each donated $5,000 to Green's campaign. Green timely paid the $10,020 qualifying fee under protest. Unopposed in the Democratic primary, Green ran in the general election and was defeated by the twenty-six-year Republican incumbent.

Although withdrawing his motion for preliminary injunctive relief, Green continued his request for declaratory relief, a permanent injunction, and attorneys' fees and costs. Green later amended his complaint to seek a refund of his $10,020 qualifying fee on the basis that it could have been used to run his campaign.

While the parties' cross-motions for summary judgment were pending, the Florida legislature reduced the statutory qualifying fee from seven and a half percent to six percent of an elective office's salary. See 1997 Fla. Laws, ch. 97-13, § 11; Fla. Stat. Ann. § 99.092 (West Supp.1998). This reduced the fee from $10,020 in the 1996 Congressional primary to $8,016 for the 1998 primary. ⁷ Green's amended complaint challenged this statute as applied to him in 1996 and as would be applicable to him in the 1998 primary. The parties amended their cross-motions accordingly. After a hearing, the magistrate judge upheld Florida's ballot access requirements as constitutional, denying summary judgment to Green and granting summary judgment to the Secretary of State. Green appeals. ⁸

II. DISCUSSION

A. Qualification Statistics

Over the years, numerous candidates have run in Florida's party primaries for Congressional seats. From 1978 to 1988, Florida's qualifying fee was five percent of a Congressional salary. See 1977 Fla. Laws, ch. 77-175, § 6 (amended 1979). During those years, an average of forty-eight candidates qualified for each year of Congressional primaries. All candidates qualified by paying the five percent fee.

Between 1990 and 1998, the Florida legislature increased the qualifying fee first to six percent and then to seven and a half percent, but later decreased the fee back to six percent. See 1989 Fla Laws, ch. 89-338, § 8 (increasing the fee to six percent effective January 1, 1990); 1991 Fla. Laws, ch. 91-107, § 1 (increasing the fee to seven and a half percent effective July 1, 1991); 1997 Fla. Laws, ch. 97-13, § 11 (decreasing the fee back to six percent effective January 1, 1998). The table below summarizes the recent qualification statistics for Congressional primary elections in Florida:

                Year             Qualifying Fee  Number of           Number        Number
                                   (percent of     Candidates          Qualifying    Qualifying
                                   salary)         Qualifying 9    by Paying     by
                                                                       Fee           Petition
                1990             6%              45                  45            0
                1992             7.5%            87                  68            19
                1994             7.5%            58                  42            16
                1996             7.5%            59                  38            21
                1998             6%              29                  20            9
                

Notably, when Florida increased the fee to seven and a half percent in 1992, the number of Congressional candidates qualifying for party primaries did not decrease but increased to the highest number of all years for which the parties submitted evidence in this case. When the fee was decreased back to six percent in 1998, there was no accompanying rise in the number of candidates qualifying.

B. Anderson 's Balancing Test

The Constitution provides that states may prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives." U.S. Const. art I, § 4, cl. 1. The Supreme Court long has recognized that states have important and compelling interests in regulating the election process and in having ballot access requirements. Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788 & n. 9, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); see also Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). The states' compelling interests include maintaining fairness, honesty, and order, Burdick, 504 U.S. at 433, 112 S.Ct. 2059, minimizing frivolous candidacies, Lubin, 415 U.S. at 715, 94 S.Ct. 1315, and "avoiding confusion, deception, and even frustration of the democratic process," Jenness, 403 U.S. at 442, 91 S.Ct. 1970. See also Anderson, 460 U.S. at 788 & n. 9, 103 S.Ct. 1564. These same Supreme Court cases also recognize candidates' constitutional rights under the First and Fourteenth Amendments to associate for political ends and to participate equally in the electoral process. See Burdick, 504 U.S. at 433, 112 S.Ct. 2059; Anderson, 460 U.S. at 787-88, 103 S.Ct. 1564; Lubin, 415 U.S. at 716-18, 94 S.Ct. 1315; Jenness, 403 U.S. at 440, 91 S.Ct. 1970. Therefore, in Anderson, the Supreme Court set forth the test for considering whether a state's ballot access requirements impermissibly infringe a candidate's constitutional rights.

The Supreme Court instructed that the courts first must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights." Anderson, 460 U.S. at 789, 103 S.Ct. 1564; see also Tashjian v. Republican Party of Conn., 479 U.S. 208, 213-14, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). This Court has described the Anderson test as a "balancing approach" in several decisions. See, e.g., Bergland v. Harris, 767 F.2d 1551, 1553-54 (11th Cir.1985) (describing Anderson as rejecting a "litmus-paper test" and adopting "the balancing approach"); Libertarian Party of Fla. v. State of Fla., 710 F.2d 790, 793 (11th Cir.1983) (stating "the test is whether the legislative requirement is a rational way to meet this compelling state interest").

C. Post-Anderson Decisions

We would proceed immediately to applying Anderson 's balancing test were it not for a more recent decision of this Court finding uncertainty about the standard to be applied. In Duke v. Cleland, 954 F.2d 1526 (11th Cir.1992), this Court noted that although Anderson "deviated from the strict scrutiny model of analysis," the Supreme Court in Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992), "returned to the traditional strict scrutiny analysis in striking down two provisions of an Illinois law that made it...