Public Citizen, Inc. v. Miller

• Decision Date: 14 June 1993
• Docket Number: No. 93-8273,93-8273
• Citation: 992 F.2d 1548
• Parties: PUBLIC CITIZEN, INC.; McCracken Poston; Ralph Paige; Betty Lee Sargent, Plaintiffs-Appellants, v. Zell MILLER, Governor of the State of Georgia; Max Cleland, Secretary of State of the State of Georgia and Director, Georgia State Board of Elections; Paul Coverdell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1548

992 F.2d 1548

PUBLIC CITIZEN, INC.; McCracken Poston; Ralph Paige Betty Lee Sargent, Plaintiffs-Appellants, v. Zell MILLER, Governor of the State of Georgia; Max Cleland Secretary of State of the State of Georgia and Director, Georgia State Board of Elections; Paul Coverdell Defendants-Appellees.

No. 93-8273.

United States Court of Appeals, Eleventh Circuit.

June 14, 1993.

Kenneth S. Canfield, Doffermyre Shields Canfield & Knowles, Atlanta, GA, for plaintiffs-appellants.

Mark Cohen, Asst. Atty. Gen., Michael P. Kenney, Alston & Bird, Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia (No. 1:92-CV-2840-RHH).

Before FAY and DUBINA, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

The judgment of the district court is AFFIRMED for the reasons set forth in the Order entered by that court on January 4, 1993, 813 F.Supp. 821

LO******

and attached hereto.

ORDER

ROBERT H. HALL, District Judge.

This case is before the Court on Plaintiffs' Motion for a Preliminary and a Permanent Injunction and for Declaratory Judgment , Defendants' Motion to Dismiss , and Intervenor's Motion to Dismiss . This Court has jurisdiction pursuant to 28 U.S.C. § 1331. See also Roudebush v. Hartke, 405 U.S. 15, 17, 92 S.Ct. 804, 806, 31 L.Ed.2d 1 (1972) The Court DENIES IN PART Plaintiffs' Motion, GRANTS IN PART Defendants' Motion, GRANTS IN PART Intervenor's Motion, WITHHOLDS JUDGMENT IN PART, and ORDERS both parties to appear before the Court on January 19, 1993 at 3:00 p.m. to address whether the Court should consolidate Plaintiffs' count three into a case currently pending in the District.

BACKGROUND

On November 3, 1992, the State of Georgia conducted a general election. Among the races on the ballot was one for the office of United States Senator. The incumbent, Wyche Fowler, received a plurality of the votes: 1,108,416 votes, or 49.22% of the total votes cast. His Republican opponent, Paul Coverdell, received 1,073,282 votes, or 47.66% of the total votes cast. Libertarian candidate Jim Hudson received 69,878 votes, or 3.1% of the total votes cast.

Because no candidate received a majority of the votes, Defendant Secretary of State Max Cleland ("Cleland" or the "Secretary"), acting pursuant to O.C.G.A. § 21-2-501 (1987) ¹, set a run-off election between Mr. Fowler and Mr. Coverdell for November 24, 1992. Coverdell received a majority of the votes cast in the run-off election, with 635,114 votes, or 50.64%, while Fowler received 618,877 votes, or 49.35%.

On December 4, 1992, the Secretary presented the tabulated results of the November 24, 1992 run-off election to the Governor pursuant to O.C.G.A. § 21-2-502(b)(1). ² On December 8, 1992, the Governor certified Mr. Coverdell's election to the President of the United States Senate pursuant to 2 U.S.C. § 1a. The President of the United States Senate must administer the oath of office to a newly elected Senator before that Senator-elect may take his seat in the Senate. 2 U.S.C. § 21. The President of the Senate may not administer the oath to a newly elected member, however, until he has received certification of that person's election from the governor of the state from which the new member was elected.

Plaintiffs are Public Citizen--a consumer organization with members in the state of Georgia--and four Georgia residents, each of whom voted for Fowler in both the general and run-off elections. Defendants are the Governor of Georgia, Zell Miller, and Georgia's Secretary of State, Max Cleland. Plaintiffs claim that the November 24, 1992 run-off election was a nullity because Article I, Section 4, Clause 1 of the United States Constitution and Sections 1 and 7 of Title 2 of the United States Code combine to restrict the State of Georgia from having held its most recent general election for the office of United States Senate on any day other than November 3, 1992 ("count one").

Plaintiffs also claim that O.C.G.A. § 21-1-501 and § 21-2-502(b)(1) violate the United States Constitution to the extent they require that United States Senators be elected by a majority of those voting in an election, because they add a qualification for the office that is not contained in the exclusive list of qualifications found in Article I, Section 3, Clause 3 of the United States Constitution ("count two").

Finally, Plaintiffs claim that the majority vote statute violates the Voting Rights Act, 28 U.S.C. § 1973, and the First, Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution because the Georgia legislature enacted the statute in 1964 for the purpose of abridging the voting rights of black Georgia voters on account of their race or color, and the statute had this intended effect in the election at issue ("count three").

In their Amended Complaint, filed on December 16, 1992, Plaintiffs requested the following relief: (1) a declaratory judgment that the November 24, 1992 run-off election was and is null and void; that the November 3, 1992 election was the one and only valid election; and that Wyche Fowler, as the recipient of the plurality of votes cast in the general election, was the winner of Georgia's election for the office of United States Senator; (2) a declaratory judgment that O.C.G.A. § 21-2-501 and § 21-2-502(b)(1) are unconstitutional to the extent they seek to impose a majority vote requirement on candidates for the office of United States Senator; (3) a preliminary and permanent injunction directing Governor Miller and Secretary of State Cleland to rescind their certificate declaring Paul Coverdell as the winner of the 1992 Georgia election for the office of United States Senator; (4) a preliminary and permanent injunction directing Governor Miller and Secretary of State Cleland to certify Wyche Fowler as the winner of the 1992 Georgia election for the office of United States Senator, and to issue to him a commission of said office; (5) costs and attorneys fees; and (6) such further relief the Court deems to be proper. Amended Complaint, pp. 14-15 .

The Court held a hearing on December 3, 1992 on Plaintiffs' earlier Motion for a Temporary Restraining Order, at which time it denied Plaintiffs' Motion and granted a motion by Mr. Coverdell to intervene ³ . The Court also ordered the parties and Intervenor to expedite briefings on counts one and two--the only counts then--before the Court. Transcript of December 3, 1992 Hearing, p. 31. Plaintiffs subsequently amended their Complaint on December 16, 1992 to add count three. On December 21, 1992, Defendants filed a Motion to Dismiss for Failure to State a Claim . Finally, on December 30, 1992, Intervenor filed a Motion to Dismiss for Failure to State a Claim, and for Failure to Join an Indispensable Party .

DISCUSSION

As a preliminary matter, the Court defines the scope of the task before it. Plaintiffs amended their Complaint to include count three after the Court had ordered expedited briefings on counts one and two. The Court has not extended its expedition order to count three, and will not address count three at this time. Instead, the Court ORDERS both parties to appear before it on January 19, 1993 at 3:00 p.m. to address whether the Court should consolidate Plaintiffs' count three into Brooks v. Harris, No. 90-1001 (N.D.Ga. filed May 8, 1990) (Freeman, J.) ⁴ --a case already pending before the Northern District of Georgia concerning the same claim.

Plaintiffs do not request the Court to compel action from anyone but the named defendants, nor has Mr. Fowler moved to intervene in this case. Thus, the Court will limit its Order to the narrow issues raised by Plaintiffs' motion for declaratory judgment and injunctive relief as it relates to counts one and two. This will require the Court to analyze the operative sections of Title 2 of the United States Code, and Article I, Sections 3 and 4 of the United States Constitution. Finally, the Court must interpret those sections of the Georgia Code at issue, and evaluate them for constitutional infirmity or federal preemption.

I. Jurisdiction.

This Court has jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1331. The Court is also empowered to issue a declaratory judgment, should it find such relief warranted, pursuant to 28 U.S.C. § 2201. See also Corey v. Jones, 484 F.Supp. 616, 618 (S.D.Ga.1980) (finding that declaratory judgments are particularly well suited to resolving constitutional questions), aff'd in part, rev'd in part on other grounds, 650 F.2d 803, 807 (5th Cir. Unit B July 1981).

II. Standing.

Defendants (and Intervenor) assert that Plaintiff Public Citizen lacks standing to assert its own alleged rights or the alleged rights of its members because, as an organizational entity, it has no connection with the State of Georgia, and as a representative of its members, it seeks to represent third parties who would themselves lack standing. Defendants also assert that the individual named-plaintiffs lack standing because they have plead no more than a generalized grievance which they share with all other Georgia voters.

To have standing before a federal court, a plaintiff must assert a sufficiently concrete and individualized injury rather than a mere " 'generalized grievance[ ]' about the conduct of government." Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974). A claim is not a generalized grievance solely because the injury is shared in substantially equal measure by a large group of citizens. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686-688, 93 S.Ct. 2405, 2415-16, 37 L.Ed.2d 254 (1973). Rather, a generalized grievance is one in which the plaintiff alleges not a demonstrable and particularized injury resulting from a violation of a specific right, but injury to his general interest as a taxpayer or citizen in having the...