Martin Cowen v. Secretary of State of the State of Georgia

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13199
____________________
MARTIN COWEN,
an individual,
ALLEN BUCKLEY,
an individual,
AARON GILMER,
an individual,
JOHN MONDS,
an individual,
LIBERTARIAN PARTY OF GEORGIA, INC.,
a Georgia nonprofit corporation,
Plaintiffs-Appellees-
Cross Appellants,
versus
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SECRETARY OF STATE OF THE STATE OF GEORGIA,
Defendant-Appellant-
Cross Appellee.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-04660-LMM
____________________
Before WILLIAM PRYOR, Chief Judge, GRANT, and HULL, Circuit
Judges.
GRANT, Circuit Judge:
Georgia law places restrictions on which prospective
candidates for elective office can appear on the general election
ballot. Over the past 50 years, courts have repeatedly rejected
constitutional challenges to these ballot-access laws: first the
Supreme Court, then our predecessor circuit, and then this Circuit,
twice. See Jenness v. Fortson, 403 U.S. 431 (1971); McCrary v.
Poythress, 638 F.2d 1308 (5th Cir. 1981); Cartwright v. Barnes, 304
F.3d 1138 (11th Cir. 2002); Coffield v. Kemp, 599 F.3d 1276 (11th
Cir. 2010). The challengers here—the Libertarian Party of Georgia,
prospective Libertarian candidates, and affiliated voters—ask us to
change course and hold that Georgia’s ballot-access laws
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unconstitutionally burden their First and Fourteenth Amendment
rights and deny them equal protection. We decline to do so.
Instead, we conclude that the district court incorrectly held that the
laws violate their First and Fourteenth Amendment rights. And we
agree with the district court’s conclusion that Georgia’s laws do not
cause an equal protection violation. We therefore reverse in part,
affirm in part, and vacate the district court’s injunction.
I.
The Libertarian Party, joined by voters and prospective
candidates, brought suit against the Georgia Secretary of State to
challenge the ballot-access requirements that prospective
Libertarian candidates for the United States House of
Representatives must satisfy. This case is now before us for the
second time. See Cowen v. Georgia Sec’y of State, 960 F.3d 1339(11th Cir. 2020). Our prior opinion provided an overview of
Georgia’s ballot-access system, so we elaborate only on those
aspects that are necessary to our evaluation here. See id. at
1340–41.
To appear on the ballot for a non-statewide office, including
the office of U.S. Representative, prospective candidates that do
not belong to a “political party”—that is, third-party and
independent candidates—must submit a nomination petition
signed by a number of voters equal to 5% of the total number of
registered voters eligible to vote in the last election for the office.
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O.C.G.A. § 21-2-170(a)–(b). 1 The petitions also must satisfy certain
technical requirements. Candidates have a 180-day period to
collect signatures. Id. § 21-2-170(e). Each signer must declare that
she is a registered voter of the electoral district qualified to vote in
the next election for that office, sign her name, and include her
residential address; signers are also encouraged to add their dates
of birth for verification purposes. Id. § 21-2-170(c). Upon filing, the
petition circulator must attach a notarized affidavit stating that,
among other things, the signers were qualified to sign the petition,
and then an official must verify the signatures. Id. §§ 21-2-170(d),
21-2-171(a). If a nomination petition is denied, that decision can be
reviewed by a court through an application for a writ of
mandamus. Id. § 21-2-171(c).
In addition to the petition requirement, prospective
candidates for non-statewide office must file a notice of candidacy
and submit a qualifying fee. Id. § 21-2-132(d). For most offices,
including U.S. Representative, the fee is 3% of the office’s annual
salary. Id. § 21-2-131(a)(2). A candidate who cannot afford the fee
may file a pauper’s affidavit instead, which requires an affirmation
under oath of an inability to pay, a financial statement, and a signed
petition. Id. § 21-2-132(g)–(h).
1 Under Georgia law, a “political party” is a political organization that at the
preceding general election for governor or president nominated a candidate
that received at least 20% of the total vote cast. O.C.G.A. § 21-2-2(25). Other
political organizations are called “political bodies.” Id. § 21-2-2(23).
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Ballot-access requirements differ for third-party candidates
running for statewide office instead of non-statewide office. While
candidates for statewide office must still file a notice of candidacy
and pay the qualifying fee, they can avoid the petition requirement
if they are nominated by a third-party “political body” that has met
certain criteria. Id. §§ 21-2-132(d), 21-2-180. A political body can
nominate statewide candidates to the ballot this way if it either (1)
files a qualifying petition signed by a number of voters equal to 1%
of the total number of registered voters eligible to vote in the
preceding general election, or (2) at the preceding general election
nominated a candidate for statewide office who received a number
of votes equal to 1% of the total number of registered voters
eligible to vote in that election. Id. § 21-2-180. Otherwise, a
candidate for statewide office can earn a place on the ballot by
submitting a nomination petition signed by a number of voters
equal to 1% of the total number of registered voters eligible to vote
in the last election for the office. Id. § 21-2-170(b).
The Libertarian Party now challenges this ballot-access
system with two constitutional claims. First, it argues that the
requirements for prospective Libertarian candidates for U.S.
Representative cumulatively impose an unconstitutional burden
on associational and voting rights protected by the First and
Fourteenth Amendments. Second, it contends that Georgia law
draws an unjustified classification between prospective Libertarian
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candidates for statewide office and those for non-statewide office.2
This case first came before us on the district court’s grant of
summary judgment to the Secretary on both claims. See Cowen,
960 F.3d at 1341. In our prior decision, we remanded for the district
court to apply the correct legal test to the First and Fourteenth
Amendment claim and to separately address the equal protection
claim. Id. at 1347. On remand, the district court maintained its
determination that the Libertarian Party showed no equal
protection violation. But it shifted course and ruled for the Party
on its First and Fourteenth Amendment claim.
To remedy that constitutional violation, the district court
permanently enjoined the Secretary from enforcing the 5%
signature requirement that applied to third-party and independent
candidates for non-statewide office. In its place, the district court
imposed a 1% requirement as an interim measure, which would
persist until the state legislature enacted a permanent replacement.
The Secretary and the Libertarian Party both appealed.
II.
We review a district court’s decision on cross-motions for
summary judgment de novo. Chavez v. Mercantil
2 The Libertarian Party moved for summary judgment on its classification
theory underlying its equal protection claim, not its discriminatory purpose
theory. The district court later found the discriminatory purpose theory moot
in light of its conclusion on the First and Fourteenth Amendment claim. That
theory is not at issue here.
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Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012). We view
the facts “in the light most favorable to the non-moving party on
each motion.” Id.III.
The Libertarian Party first claims that Georgia’s
ballot-access laws unconstitutionally burden two overlapping
rights protected by the First and Fourteenth Amendments: “the
right of individuals to associate for the advancement of political
beliefs” and “the right of qualified voters, regardless of their
political persuasion, to cast their votes effectively.” Anderson v.
Celebrezze, 460 U.S. 780, 787 (1983) (quotation omitted). As we
explained in our prior decision, reviewing courts must analyze this
claim under the framework the Supreme Court established in
Anderson v. Celebrezze. Cowen, 960 F.3d at 1342. The Anderson
test requires the court to (1) “consider the character and magnitude
of the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate”; (2)
“identify and evaluate the precise interests put forward by the State
as justifications for the burden imposed by its rule”; and (3) weigh
those factors and “decide whether the challenged provision is
unconstitutional.” Id. (quotations omitted).
Anderson postdated the Supreme Court’s 1971 decision in
Jenness v. Fortson, which held that Georgia’s 5% signature
requirement did not violate voters’ and prospective candidates’
First and Fourteenth Amendment rights. Jenness, 403 U.S. at439–40. Because Anderson clarified that no “litmus-paper test”
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exists to “separate valid from invalid restrictions” and that the
analysis must be context-specific, we concluded that the holding in
Jenness could not automatically control the Libertarian Party’s
claim here. Cowen, 960 F.3d at 1342, 1345–46 (quotations
omitted).
Still, Jenness could not be disregarded. We instructed that
the Libertarian Party would have to “satisfactorily distinguish its
claims from those rejected in Jenness” to prevail on remand. Id. at
1346. Specifically, the Libertarian Party’s task was to “demonstrate
why a different result from Jenness is required in this case—either
because of different facts in the instant record, as compared to the
record in Jenness; changes in the relevant Georgia legal framework;
or the evolution of the relevant federal law.” Id.
On remand, the Libertarian Party persuaded the district
court that changed circumstances warranted a different result. But
we are unconvinced. True, some changes to Georgia’s
ballot-access laws have occurred in the 50 years since Jenness. And
the evidentiary record detailing the practical difficulties of
gathering petition signatures may be more robust here than it was
in that case. But to satisfactorily distinguish the claims, not just any
difference from Jenness will do—the difference must be material
enough to transform Georgia’s ballot-access system from one that
“in no way freezes the status quo” to one that does. Jenness, 403
U.S. at 439. The Libertarian Party has not identified such a
difference.
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Both the Libertarian Party and the district court heavily
relied on the undisputed fact that “no political-body candidate for
U.S. Representative has ever satisfied the requirements to appear
on Georgia’s general-election ballot” since the 5% signature
requirement was first adopted, long before Jenness. But that frame
of reference is too narrow. Focusing only on the success of
political-body candidates for one particular non-statewide office is
unwarranted when other candidates—including independent
candidates and those running for other non-statewide
offices—must meet the same 5% threshold. See O.C.G.A.
§ 21-2-170(a)–(b).
That limited focus is also inconsistent with the analysis
applied by the Supreme Court. In Jenness, the challengers to
Georgia’s 5% signature requirement included one prospective
candidate for governor and two for U.S. Representative. 403 U.S.
at 432 n.3. When assessing the record of past petitioning efforts,
however, the Supreme Court looked not only to a gubernatorial
candidate who successfully petitioned onto the ballot, but also to a
presidential candidate. Id. at 439. Each of those candidates was
subject to the 5% signature requirement under the law as it existed
at that time. Id. at 432, 438–39.
We thus broaden our own analysis to include other
prospective candidates for non-statewide office. The parties agree
that in 2020, an independent candidate for district attorney
gathered enough signatures to exceed the 5% threshold. Although
the absolute number of signatures required for district attorney
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candidates and congressional candidates differs because of the
varied sizes of the electoral districts, so did the absolute number of
signatures required for the congressional and statewide candidates
compared in Jenness. This local candidate’s success shows that the
5% requirement still does not bar candidates from the ballot.
As the Supreme Court did in Jenness, we recognize that the
5% requirement appears to be somewhat higher than that in other
states. See id. at 442. But it remains just as true that Georgia
imposes “no arbitrary restrictions whatever upon the eligibility of
any registered voter to sign as many nominating petitions as he
wishes.” Id.In fact, Georgia’s ballot-access laws were and are quite open
in numerous respects. The Jenness Court explained that “no
suffocating restrictions” existed—voters could sign petitions for
multiple candidates; they could both sign a petition and vote in a
party primary; they did not have to state that they intended to vote
for a candidate in order to sign that candidate’s petition; the pool
of voters eligible to sign included those not registered in the
preceding election; and petition signatures did not need to be
notarized. Id. at 438–39. None of that has changed; nomination
petitions can circulate just as freely today. See Cartwright, 304 F.3d
at 1140–41. Candidates still have 180 days to collect signatures, and
the filing deadline, which the Supreme Court stated was not
“unreasonably early” in Jenness, is later now. Jenness, 403 U.S. at433–34, 438; O.C.G.A. §§ 21-2-132(e), 21-2-170(e). The Georgia
legislature has since added a requirement that write-in candidates
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file a notice of candidacy, but that change has no effect on the
burden of gaining ballot access by nomination petition. See
O.C.G.A. § 21-2-133(a).
The Libertarian Party offers evidence to show that
collecting petition signatures is costly and difficult. It is no surprise
that parties must “undergo expense” to accumulate required
petition signatures. Am. Party of Texas v. White, 415 U.S. 767,
793–94 (1974). But the Libertarian Party has not shown that the
endeavor is significantly more challenging than it was 50 years ago.
The Party asserts that the Secretary’s petition-validation
process is so “error-prone” that prospective candidates must gather
extra signatures to make up for those that are erroneously rejected.
But it does not account for the availability of prompt judicial
review of the decision to deny a nomination petition. See O.C.G.A.
§ 21-2-171(c). Nor does it contend that this judicial-review
mechanism is inadequate to correct any erroneous petition denials.
And most importantly, it provides no information about how
validation rates have changed since Jenness.
The Party’s reliance on increased campaign-finance
restrictions also falls short. While federal law now caps the amount
that donors can contribute to petitioning efforts, the Party has not
connected those contribution limits to any materially heightened
burden. See 52 U.S.C. § 30116(a). For instance, it has made no
showing that prospective candidates could not gain contributions
from additional donors, or that the Party would donate more to its
candidates if it were not barred from doing so. Asserting that some
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new limit exists is not enough to show that it has caused a
constitutional violation.
The main difference between this case and Jenness has
nothing to do with the petition requirements—it is the challenge
to the qualifying fee, which was not at issue there. See Jenness, 403
U.S. at 432. But we have long recognized qualifying fees as
“reasonable, nondiscriminatory means of regulating ballot access”
as long as “an alternative means of ballot access” exists. Green v.
Mortham, 155 F.3d 1332, 1337 (11th Cir. 1998). Such an alternative
means exists here: candidates for non-statewide office may qualify
without paying the fee if they submit a pauper’s affidavit and satisfy
a 1% signature requirement. O.C.G.A. § 21-2-132(g)–(h). And this
Circuit has upheld higher fees than Georgia’s 3% fee. See Green,
155 F.3d at 1339 (7.5% and 6% fees); Little v. Florida Dep’t of State,
19 F.3d 4, 5 (11th Cir. 1994) (4.5% fee). The Libertarian Party
presents no evidence that the amount of the fee has precluded
prospective candidates from accessing the ballot; to the contrary, it
stipulated that several candidates who did not successfully amass
the required petition signatures did pay the qualifying fee.
In sum, Georgia’s ballot-access laws do not severely burden
the Libertarian Party’s First and Fourteenth Amendment rights.
Under the Anderson framework, then, the laws need only be
justified by “the State’s important regulatory interests.” Anderson,
460 U.S. at 788; see Burdick v. Takushi, 504 U.S. 428, 434 (1992).
That test is met here. It bears repeating that the interests the
Secretary asserts—in “requiring some preliminary showing of a
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significant modicum of support before printing the name of a
political organization’s candidate on the ballot,” in maintaining the
orderly administration of elections, and in “avoiding confusion,
deception, and even frustration of the democratic process at the
general election”—are compelling.3 Jenness, 403 U.S. at 442; see
also Swanson v. Worley, 490 F.3d 894, 903 (11th Cir. 2007); Munro
v. Socialist Workers Party, 479 U.S. 189, 193–94 (1986); Libertarian
Party of Florida v. Florida, 710 F.2d 790, 792–93 (11th Cir. 1983).
Georgia’s ballot-access system is a “rational way” to meet those
interests. Swanson, 490 F.3d at 903–04 (quotation omitted). No
proof of “actual voter confusion, ballot overcrowding, or the
presence of frivolous candidacies” is required. Munro, 479 U.S. at
195; see also Common Cause/Georgia v. Billups, 554 F.3d 1340,
1353 (11th Cir. 2009). We conclude that Georgia’s ballot-access
laws again survive challenge under the First and Fourteenth
Amendments.
IV.
We now turn to the claim that the disparate routes to the
ballot provided for Libertarian candidates seeking non-statewide
3 In an unpublished opinion, this Circuit summarily affirmed a district court
decision holding Georgia’s 1% signature requirement for presidential
candidates unconstitutional under this framework. See Green Party of
Georgia v. Kemp, 171 F. Supp. 3d 1340 (N.D. Ga. 2016), aff’d, 674 F. App’x 974
(11th Cir. 2017). That decision does not control this outcome. It is not
binding, and because it involved presidential elections, the nature of both the
asserted injury and the State’s interests differs.
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versus statewide office violate the Equal Protection Clause. In our
prior opinion, we explained the classification at issue. Cowen, 960
F.3d at 1346–47. If in the preceding general election any Libertarian
candidate for statewide office received a number of votes equal to
1% of the total number of registered and eligible voters, Libertarian
candidates for statewide office are “automatically entitled to ballot
access,” while Libertarian candidates for non-statewide office must
petition. 4 Id.; see O.C.G.A. §§ 21-2-170(b), 21-2-180. We sent the
case back to the district court with instructions to analyze whether
this distinction between offices violates equal protection. Cowen,
960 F.3d at 1347.
The district court responded on remand that the Libertarian
Party had misconstrued Georgia’s ballot-access system. But in
reaching this conclusion, the court itself seems to have
misconstrued the Libertarian Party’s claim, despite our earlier
explanation. The district court explained that Libertarian
candidates for statewide office have not needed to submit
nomination petitions because the Libertarian Party has
consistently qualified to nominate its statewide candidates by
convention alone, having passed the 1% vote threshold in
statewide elections for decades. It went on to acknowledge that
Georgia law provides “an alternative way to access the
4 The Libertarian Party does not argue that the disparity in signature
percentage required for statewide and non-statewide candidates seeking to
qualify by nomination petition violates equal protection or that we should
consider any difference in qualifying fees.
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general-election ballot through votes obtained in the prior
election.” It then summarily concluded that this extra qualification
method was not “a distinction that violates Plaintiffs’ right to equal
protection.”
That reasoning misses the point. The “alternative way”
around qualifying by nomination petition is available to Libertarian
candidates for statewide office, but not non-statewide office.
Under Supreme Court precedent, that is a cognizable “geographic
classification.” Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 183–87 (1979). So as the Libertarian Party
proposes, and because the start of the 180-day petitioning window
is nearly upon us, we will conduct the necessary equal protection
analysis ourselves based on the summary judgment record instead
of remanding a second time to the district court. See Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (stating
that we may “affirm the district court’s judgment on any ground
that appears in the record”).
This Circuit considers equal protection challenges to
ballot-access laws under the Anderson test. Indep. Party of Florida
v. Sec’y, Florida, 967 F.3d 1277, 1283–84 (11th Cir. 2020); Fulani v.
Krivanek, 973 F.2d 1539, 1543–44 (11th Cir. 1992). We assess “the
character and magnitude of the asserted denial of equal treatment,”
“identify the precise interests put forward by the State to justify its
rule,” and “determine the legitimacy and strength of each interest.”
Indep. Party, 967 F.3d at 1284 (quotations omitted).
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The asserted injury here is that Libertarian candidates for
non-statewide office must petition for individual ballot access
rather than benefitting from the Libertarian Party’s qualification to
nominate a slate of candidates at the statewide level. The
magnitude of this inequality, however, is (at most) only as
substantial as the severity of the burden of meeting the 5%
signature requirement—the hurdle non-statewide candidates must
overcome. And as we have already concluded, that burden is not
severe. The disparity between candidates can thus be justified if
the State puts forward an important regulatory interest. See id. at
1281.
The Secretary has explained the importance of “ensuring
that candidates have a significant modicum of support among the
electorate before placing them on the ballot.” This is a compelling
interest. See, e.g., Swanson, 490 F.3d at 903. The disparity
between qualification methods serves that interest, the Secretary
reasoned, because it keeps Libertarian candidates for
non-statewide office from relying on the Party’s support at the state
level. Even though the Libertarian Party has consistently garnered
support at that level, prospective Libertarian candidates for U.S.
Representative may well lack a significant modicum of support
within the congressional district they seek to represent. 5 Though
5 We agree with the Secretary that the Supreme Court’s decision in Norman
v. Reed, 502 U.S. 279 (1992), does not undermine the State’s interest in
requiring voter support in specific electoral districts. That case held it
unconstitutional for a State to require candidates running for office within a
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we might be able to imagine more narrowly tailored alternatives
to the disparity at issue, the Anderson test does not require perfect
tailoring when the disparity is not severe. We conclude that the
Secretary’s stated interest sufficiently justifies this distinction.
V.
For these reasons, we REVERSE the district court’s grant of
summary judgment to the Libertarian Party on its First and
Fourteenth Amendment claim and its denial of summary judgment
to the Secretary on that claim. We AFFIRM the district court’s
summary judgment ruling on the Libertarian Party’s equal
protection claim. We VACATE the district court’s injunction and
REMAND for further proceedings consistent with this opinion.
county that comprises multiple electoral districts to show support among
citizens from an electoral district other than the one that would elect them,
where that requirement resulted in county candidates having to gain more
petition signatures than statewide candidates. Id. at 284, 292–93. The Court
explained that because the State did not have a geographic distribution
requirement for statewide candidates, it did not demonstrate a serious state
interest in demanding that distribution for local candidates. Id. at 293–94. But
that reasoning does not apply here, because prospective candidates at both the
statewide and non-statewide levels must only show sufficient support among
the electorate of the office they seek.