McCrary v. Poythress

• Decision Date: 12 March 1981
• Docket Number: No. 78-3110,78-3110
• Citation: 638 F.2d 1308
• Parties: Thomas A. McCRARY et al., Plaintiffs-Appellants, v. David B. POYTHRESS, Secretary of the State of Georgia and Chairman State Election Board, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1308

638 F.2d 1308

Thomas A. McCRARY et al., Plaintiffs-Appellants, v. David B. POYTHRESS, Secretary of the State of Georgia and Chairman State Election Board, et al., Defendants-Appellees.

No. 78-3110.

United States Court of Appeals, Fifth Circuit.

March 12, 1981.

Jesse Cleveland, Atlanta, Ga., for plaintiffs-appellants.

Arthur K. Bolton, Atty. Gen., Michael J. Bowers, Sr., Asst. Atty. Gen., State Law Dept., Robert S. Stubbs, II and Don A. Langham, Asst. Attys. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, CHARLES CLARK and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

This appeal asserts that the district court erred in dismissing the complaint of the plaintiffs below, who challenged many provisions of the Georgia Election Code, Ga.Code Ann. § 34-101 et seq. The Independent Party of Georgia, a political body under the Georgia Election Code, and Thomas McCrary, Jesse Cleveland, and James Yarbrough, nominees of the Party for various Georgia elective offices, were the plaintiffs below. The defendants were the Georgia Secretary of State (who, by virtue of his office, is also Chairman of the State Elections Board), the Director of the Elections Division, and the Executive Director of the Georgia Campaign and Financial Disclosure Commission, all in their representative capacities. In their brief plaintiffs list twenty-one issues, some of which are duplicitous, some of which were not presented to the trial court below, and some of which are not specifically argued in the appellate brief. We shall attempt to ferret out the issues raised by appellant, consolidate them, and treat them in a manner which will answer each of appellant's numbered issues and at the same time try to give some coherence to the opinion.

Appellants' first four numbered issues complain about the defendants' application of the Georgia Campaign and Financial Disclosure Act (Ga.Code Ann. § 40-3801 et seq.) to plaintiffs. Appellants complain that the Georgia Secretary of State and the Director of the Georgia Campaign and Financial Disclosure Commission wrongfully required certain campaign financial disclosure reports of plaintiff McCrary. Additionally, those defendants were charged with issuing a press release announcing that McCrary had failed to file the necessary disclosure reports. Subsequently, the defendants learned that such a disclosure was not required by Georgia law and they wrote McCrary that they had made a mistake and that such a report would not be required of him. The trial court dismissed this claim on the ground of mootness in that the defendants had conceded an error and abandoned the request for the reports. ¹ The court did not specifically address McCrary's claim of libel as a result of the incorrect report to the newspaper nor his claim that his constitutional and civil rights were violated by defendants' false assertion that he had not complied with the disclosure statute. ²

Appellants level a broadside attack on Georgia's Election Code that, in short, alleges unconstitutional restrictions upon plaintiffs' access to the general election ballot. ³ For example, their issue # 18 charges that Ga.Code Ann. § 34-1012 requires appellants to set up an elaborate de facto primary machinery in contravention of the Supreme Court's holding in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). Appellants' attack flies in the face of approval of Georgia's statutory election machinery by the Supreme Court in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). Since the opinion of the Supreme Court in that case answers many of the issues raised by appellant, we will extensively quote from it. We add that appellants point us to no decision of our highest court which limits that broad approval of Georgia's election procedures.

The basic structure of the pertinent provisions of the Georgia Election Code is relatively uncomplicated. Any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a "political party." Any other political organization is a "political body." "Political parties" conduct primary elections, regulated in detail by state law, and only the name of the candidate for each office who wins this primary election is printed on the ballot at the subsequent general election, as his party's nominee for the office in question. A nominee of a "political body" or an independent candidate, on the other hand, may have his name printed on the ballot at the general election by filing a nominating petition. This petition must be signed by a "number of electors of not less than five per cent of the total number of electors eligible to vote in the last election for the filing of the office the candidate is seeking. * * * " The total time allowed for circulating a nominating petition is 180 days, and it must be filed on the second Wednesday in June, the same deadline that a candidate filing in a party primary must meet.

It is to be noted that these procedures relate only to the right to have the name of a candidate or the nominee of a "political body" printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted.

In this litigation the appellants have mounted their attack upon Georgia's nominating-petition requirement on two different but related constitutional fronts. First, they say that to require a nonparty candidate to secure the signatures of a certain number of voters before his name may be printed on the ballot is to abridge the freedoms of speech and association guaranteed to that candidate and his supporters by the First and Fourteenth Amendments. Secondly, they say that when Georgia requires a nonparty candidate to secure the signatures of 5% of the voters before printing his name on the ballot, yet prints the names of those candidates who have won nomination in party primaries it violates the Fourteenth Amendment by denying the nonparty candidate the equal protection of the laws. Since both arguments are primarily based upon this Court's decision in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, it becomes necessary to examine that case in some detail.

(T)he Williams case, it is clear, presented a statutory scheme vastly different from the one before us here. Unlike Ohio, Georgia freely provides for write-in votes. Unlike Ohio, Georgia does not require every candidate to be the nominee of a political party, but fully recognizes independent candidacies. Unlike Ohio, Georgia does not fix an unreasonably early filing deadline for candidates not endorsed by established parties. Unlike Ohio, Georgia does not impose upon a small party or a new party the Procrustean requirement of establishing elaborate primary election machinery. Finally, and in sum, Georgia's election laws, unlike Ohio's do not operate to freeze the political status quo. In this setting we cannot say that Georgia's 5% petition requirement violates the Constitution.

Anyone who wishes, and who is otherwise eligible may be an independent candidate for any office in Georgia. Any political organization, however new or however small, is free to endorse any otherwise eligible person as its candidate for whatever elective public office it chooses. So far as the Georgia election laws are concerned independent candidates and members of small or newly formed political organizations are wholly free to associate, to proselytize, to speak, to write, and to organize campaigns for any school of thought they wish. They may confine themselves to an appeal for write-in votes. Or they may seek, over a six months' period, the signatures of 5% of the eligible electorate for the office in question. If they choose the latter course, the way is open. For Georgia imposes no suffocating restrictions whatever upon, the free circulation of nominating petitions. A voter may sign a petition even though he has signed others, and a voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. The signer of a petition is not required to state that he intends to vote for that candidate at the election. A person who has previously voted in a party primary is fully eligible to sign a petition, and so, on the other hand is a person who was not even registered at the time of the previous election. No signature on a nominating petition need be notarized.

The open quality of the Georgia system is far from merely theoretical. For the stipulation of facts in this record informs us that a candidate for Governor in 1966 and a candidate for President in 1968, gained ballot designation by nominating petitions, and each went on to win a plurality of the votes cast at the general election.

In a word, Georgia in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life. Thus, any political body that wins as much as 20% support at an election becomes a "political party" with its attendant ballot position rights and primary election obligations, and any "political party" whose support at the polls falls below that figure reverts to the status of a "political body" with its attendant nominating petition responsibilities and freedom from primary election duties. We can find in this system nothing that abridges the rights of free speech and association secured by the First and Fourteenth Amendments.

The appellants' claim under the Equal Protection Clause of the Fourteenth Amendment fares no better. This claim is necessarily bottomed upon the premise that it is inherently more burdensome for a candidate to gather the signatures of 5% of the total eligible electorate than it is to win the votes of a majority in a...