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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14065
________________________
D.C. Docket No. 1:17-cv-04660-LMM
MARTIN COWEN,
ALLEN BUCKLEY, et al.,
Plaintiffs–Appellants,
versus
GEORGIA SECRETARY OF STATE,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 3, 2020)
Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
The Libertarian Party of Georgia, several prospective Libertarian candidates
for Congress, and several Libertarian voters—collectively, “the Libertarian Party”
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or “the Party”—brought the instant case against the Secretary of State of Georgia.
They alleged that Georgia’s ballot-access requirements for third-party and
independent candidates violated their associational rights under the First and
Fourteenth Amendments and their Equal Protection rights under the Fourteenth
Amendment. The district court granted the Secretary of State summary judgment,
concluding that it did not need to apply the Supreme Court’s test for the
constitutionality of ballot-access requirements, as articulated in Anderson v.
Celebreeze, 460 U.S. 780 (1983), and the Party appeals from that determination.
After careful review, and with the benefit of oral argument, we vacate the
district court’s grant of summary judgment. We conclude that the district court’s
failure to conduct the Anderson test constitutes reversible error; accordingly, we
remand the case to the district court with instructions to conduct in the first
instance the Anderson test and to consider the Party’s Equal Protection claim.
I. BACKGROUND
We note at the outset that the facts are not seriously disputed, but
nonetheless set them out to better contextualize the parties’ arguments. The State
of Georgia first established formal ballot access requirements in 1922, which
required that an independent candidate, or the nominee of any party not conducting
a primary election, could attain ballot access by simply “fil[ing] notice of their
candidacy, giving their names and the offices for which they are candidates, with
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the Secretary of State” for national and statewide elections, and with county
officials for district and county elections, with no petition or filing fee
requirements. 1922 Ga. Laws 100. Over the next few decades, the State
subsequently tightened its ballot-access requirements. In 1943, the State enacted
the predecessor of its current ballot-access requirement, which allowed third-party
candidates to gain access to the ballot in one of two ways: (1) if the political party
received 5 percent of the votes in the last general election for the office in question,
which guaranteed ballot access; or (2) by gathering petitions signed by 5 percent of
all of the registered voters in the state or district. 1943 Ga. Laws 292.
In 1986, the State substantially loosened its ballot-access requirements—but
only with respect to statewide candidates. That year, the State amended its statutes
to allow ballot access for third-party candidates nominated for statewide office if
the third-party either: (1) submitted petitions “signed by voters equal in number to
1 percent of the registered voters who were registered and eligible to vote in the
preceding general election; or (2) “[a]t the preceding general election, the political
body nominated a candidate for state-wide office and such candidate received a
number of votes equal to 1 percent of the total number of registered voters who
were registered and eligible to vote in such general election.” 1986 Ga. Laws 894.
However, the legislature left unchanged the 5 percent petition requirement for
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third-party and independent candidates for non-statewide offices. Since 1986,
Georgia’s ballot-access requirements have remained largely unchanged.
In contrast to the 1986 requirement for statewide offices, Georgia has a two-
tiered system through which non-statewide candidates, like those for the U.S.
House of Representatives, can qualify for the ballot. For candidates of “political
parties”—defined by state law as political organization whose nominees won at
least twenty percent of the vote at the last gubernatorial or presidential election,
O.C.G.A. § 21-2-2(25)—they are guaranteed ballot access so long as they win their
party’s primary and pay the requisite filing fee. But for candidates of “political
bodies”—political organizations other than formally recognized political parties,
O.C.G.A. § 21-2-2(23), which, as a practical matter, encompasses all third
parties—the candidates are guaranteed ballot access only if they are nominated by
their party at a convention, id. § 21-2-170(g), and if they submit nomination
petitions signed by 5 percent of the registered voters eligible to vote for that office
in the most recent general election, id. § 21-2-170(b).
The Libertarian Party of Georgia, along with several of its prospective
congressional candidates and voters, brought the instant suit, challenging the
constitutionality of these ballot-access requirements for congressional candidates.
The Party noted that, if it wanted to run a full slate of congressional candidates in
Georgia, it would be required to gather a grand total of 321,713 valid signatures. It
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also introduced evidence that no third-party congressional candidate has ever
managed to petition its way onto the ballot—despite the fact that, since 2002, at
least twenty candidates had attempted to do so. It also introduced evidence
surrounding the practical difficulties of gathering petitions, which include the
allegedly error-prone signature-checking process, the undue cost of petitioning
(and the inability, under federal campaign finance law, of the national party to help
defray these costs), the onerousness of the pace and schedule of petition gathering,
the lack of access to voters, and alleged concerns from voters about disclosing
confidential information on the nominating petition.
The district court characterized this evidence as part of a “robust record” and
noted that the Party raised “some compelling arguments,” but nonetheless
concluded that the Secretary of State was entitled to summary judgment. The court
declined to apply the Supreme Court’s test for the constitutionality of ballot-access
requirements—as articulated in Anderson, 460 U.S. at 789—instead concluding
that, in light of Jenness v. Fortson, 403 U.S. 431 (1971), which upheld Georgia’s
ballot-access requirements, it was not necessary to apply the Anderson test to
ballot-access requirements outside of the presidential election context. It also
summarily rejected the Party’s Equal Protection challenge. The Party timely
appealed to us. We vacate and remand with instructions.
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II. ANALYSIS
We review de novo a grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). In
reviewing the propriety of summary judgment, “we view the evidence in the light
most favorable to the non-moving party.” Thomas, 506 F.3d at 1363.
This case involves a challenge to Georgia’s ballot-access requirements for
third-party (or “political body”) congressional candidates. The Libertarian Party in
this case raises two different constitutional challenges to Georgia’s ballot-access
requirements—one based on its associational rights under the First and Fourteenth
Amendments, and one based on its rights under the Equal Protection Clause. We
address each in turn.
A. Associational Rights
The Supreme Court has recognized the unique “impact of candidate
eligibility requirements on voters,” which implicates the “basic constitutional
rights” of both voters and candidates under the First and Fourteenth Amendments.
Anderson, 460 U.S. at 786. Specifically, ballot-access requirements implicate “the
right of individuals to associate for the advancement of political beliefs, and the
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right of qualified voters, regardless of their political persuasion, to cast their votes
effectively.” Id. at 787 (quoting Williams v. Rhodes, 393 U.S. 23, 30–31 (1968)).
In Anderson, the Supreme Court laid out a multistep test for evaluating the
constitutionality of ballot-access requirements under the First and Fourteenth
Amendment. First, the court must “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.” 460 U.S. at 789. Second, “[i]t then must identify
and evaluate the precise interests put forward by the State as justifications for the
burden imposed by its rule. In passing judgment, the Court must not only
determine the legitimacy and strength of each of those interests; it also must
consider the extent to which those interests make it necessary to burden the
plaintiff’s rights.” Id. Third, the court must “weigh[] all these factors” and
“decide whether the challenged provision is unconstitutional.” Id.
In laying out these steps, the Court emphasized the importance of context.
“Constitutional challenges to specific provisions of a State’s election laws . . .
cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid
restrictions.” Id. at 789. In other words, the determination that a 1 percent petition
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requirement by one state’s election law in one context is constitutional, vel non,
does not guarantee the same determination of a similar law in a different context. 1
[T]he rule fashioned by the Court to pass on constitutional challenges
to specific provisions of election laws provides no litmus-paper test for
separating those restrictions that are valid from those that are invidious
under the Equal Protection Clause. The rule is not self-executing and is
no substitute for the hard judgments that must be made. Decision in
this context, as in others, is very much a “matter of degree,” very much
a matter of “considering the facts and circumstances behind the law, the
interests which the State claims to be protecting, and the interests of
those who are disadvantaged by the classification.
Storer v. Brown, 415 U.S. 724, 730 (1974) (internal cites and punctuation omitted).
Georgia’s ballot-access requirements have been repeatedly challenged, both
before and after the Supreme Court’s decision in Anderson, and have been upheld
each time. While we ultimately conclude that the district court erred in
prematurely concluding—without applying the Anderson analysis—that the Party’s
challenge was foreclosed by Supreme Court and Eleventh Circuit precedent, we
nonetheless find it prudent to lay out the underlying legal landscape.
First, in Jenness v. Fortson—a decision predating Anderson by more than a
decade—the Supreme Court upheld Georgia’s ballot-access requirements against
constitutional challenges. Significantly, the 1986 amendment to the Georgia law
1
We note below that our decision in Bergland v. Harris, 767 F.2d 1551, 1554 (11th Cir. 1985),
held that, in a challenge to the constitutionality of a ballot-access requirement, the Anderson
analysis must be undertaken even if the very same requirement had been previously upheld as
constitutional, if there are at least some non-frivolous arguments that, since the decision
upholding the requirement, circumstances have changed the context of the analysis.
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had not come into effect at this point, and as a result, the only way that a third-
party or independent candidate could be placed on the ballot for any race in
Georgia was to file “a nominating petition signed by at least 5% of the number of
registered voters at the last general election for the office in question.” 403 U.S. at
432. Several prospective candidates challenged the constitutionality of the law,
both as a violation of their rights under the First and Fourteenth Amendments and
as a violation of the Equal Protection Clause. The Court concluded that the law
did “nothing that abridges the rights of free speech and association secured by the
First and Fourteenth Amendments.” Id. at 440. As we will address later in our
discussion of the Equal Protection challenge, the Court also rejected the plaintiffs’
Equal Protection arguments. Id.
We, in turn, rejected a subsequent challenge in McCrary v. Poythress, 638
F.2d 1308 (5th Cir. 1981),2 where our predecessor court upheld the Georgia ballot-
access requirements from similar constitutional challenges. We “extensively
quote[d]” from the Supreme Court’s opinion in Jenness, and ultimately concluded
that, given the similar nature of the challenges to the law, the plaintiffs’ challenge
to the law was due to be rejected. Id. at 1310–13.
2
In Bonner v. City of Prichard, we adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981. 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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In Bergland v. Harris, a decision issued two years after the Supreme Court’s
decision in Anderson, we considered a similar challenge. There, a coalition of
plaintiffs—including several third parties, third-party presidential candidates, and a
third-party congressional candidate—challenged the Georgia law once again. 767
F.2d 1551, 1552–53, 1553 n.1 (11th Cir. 1985). We reiterated the three-part
Anderson test but ultimately concluded that there was “an insufficient factual
record to carry out the Anderson requirements” because the evidentiary materials
“filed by the State in this case are simply inadequate to allow a court to conduct”
the “weighing of interests” required by the Anderson analysis. Id. at 1554. We
further held that the “two cases which have upheld the Georgia provisions against
constitutional attack by prospective candidates and minor political parties”—that
is, Jenness and McCrary—“do not foreclose the parties’ right to present the
evidence necessary to undertake the balancing approach outlined in Anderson v.
Celebreeze.” Id. (citations omitted).
Finally, in Cartwright v. Barnes, 304 F.3d 1138, 1142–44 (11th Cir. 2002),
and Coffield v. Handel, 599 F.3d 1276, 1277 (11th Cir. 2010), we upheld Georgia’s
ballot-access requirements in different contexts, as discussed more fully below.
In the instant case, the district court granted summary judgment to the
Secretary of State. In upholding Georgia’s ballot-access requirements, however,
the district court did not apply the Anderson test at all. It concluded that our
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opinion in Bergland—along with our unpublished opinion in Green Party of Ga. v.
Georgia, 551 F. App’x 982 (11th Cir. 2014)—“emphasized the uniqueness of
presidential elections,” and that our opinions in Cartwright and Coffield
demonstrate that we
ha[ve] continued to reject challenges to Georgia’s 5% rule brought by
prospective candidates for the United States House of Representatives
without engaging in the analysis set forth in Anderson. Thus, the case
law in this circuit simply does not support Plaintiff’s argument that
this Court must analyze Plaintiffs’ claims under Anderson,
notwithstanding the clear ruling in Jenness.
Dist. Ct. Op. at 13 (emphasis in original).
In our view, this is a reversible error of law. We cannot agree with the
assertion that our Bergland decision—and thus the applicability of the Anderson
test—is limited to ballot-access requirements as applied to presidential candidates
for several reasons. First, by its own text, the Supreme Court’s opinion in
Anderson does not restrict its holding to presidential candidates. Though it
certainly emphasizes the “uniquely important national interest” when ballot-access
restrictions are applied to presidential candidates, 460 U.S. at 794–95, we do not
read that as an implied limitation on Anderson’s applicability. Such a limitation
would make little sense in context. The Supreme Court in Anderson laid out the
test for evaluating the constitutionality of ballot-access restrictions, which requires,
inter alia, the “identif[ication] and evaluat[ion] [of] the precise interests put
forward by the State as justifications for the burden imposed by its rule.” Id. at
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789. Then, in a subsequent section, it explained that “the State has a less important
interest in regulating Presidential elections than statewide or local elections,” id. at
795; in other words, the unique nature of a presidential election altered the
weighing of interests. Our reading of Anderson makes clear that its requirements
apply in all elections—but with a thumb on the scale in favor of ballot access when
the candidates challenging the requirements are presidential candidates.
Second, our precedent makes clear that it is the law in this circuit to apply
Anderson to ballot-access requirements for all candidates. See, e.g., Grizzle v.
Kemp, 634 F.3d 1314, 1316, 1321–22 (11th Cir. 2011) (school board candidates);
Swanson v. Worley, 490 F.3d 894, 896, 902–03 (11th Cir. 2007) (state senate, state
house, and sheriff candidates); Green v. Mortham, 155 F.3d 1332, 1333, 1335–36
(11th Cir. 1998) (congressional candidate); New Alliance Party v. Hand, 933 F.2d
1568, 1570, 1574 (11th Cir. 1991) (congressional candidate and county
commission candidate); Bergland, 767 F.2d at 1552–53, 1553 n.1 (presidential
candidates and a congressional candidate); Libertarian Party of Fla. v. Florida,
710 F.2d 790, 792–93 (11th Cir. 1983) (state legislative, statewide office, and
presidential candidates).
Third, and most significantly, we conclude that the district court erred when
it limited the precedential force of Bergland to presidential candidates and declined
to apply the Anderson analysis, relying upon its belief that the Supreme Court’s
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decision in Jenness foreclosed the Party’s challenge to Georgia’s ballot-access
requirements. Contrary to the district court’s ruling, our prior, binding decision in
Bergland expressly held that Jenness did not foreclose a challenge to Georgia’s
“signature requirements for nominating petitions,” see Bergland, 767 F.2d at 1553,
including the 5 percent rule challenged in this case, id. at 1553, 1553 n.3. Rather,
Bergland held that the challenge must be evaluated pursuant to the “balancing
approach outlined in Anderson v. Celebreeze.” Id. at 1554. Bergland held that,
“[c]ontrary to the State’s argument, the two cases”—referring expressly to Jenness
and McCrary, both of which preceded the Supreme Court’s opinion in Anderson—
“which have upheld the Georgia provisions against constitutional attack by
prospective candidates and minor political parties do not foreclose the parties’ right
to present the evidence necessary to undertake the balancing approach outlined in
Anderson v. Celebrezze.” Id.
The district court erred in concluding that the precedential force of Bergland
was limited to candidates for President. Although the Bergland plaintiffs did
include candidates for President, the case also included a candidate for Congress,
whose claim was also vacated and remanded to the district court for analysis
pursuant to the Anderson balancing approach. Id. at 1553 n.1, 1554–55.
Moreover, while Bergland did note that, in applying the Anderson analysis, “the
State has a less important interest in regulating Presidential elections than
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statewide or local elections,” id. at 1554 (quoting Anderson, 460 U.S. at 795), it
also noted that the “difference between state and local offices and federal offices
. . . requires a different balance than that used in weighing the state interests
against the burdens placed on candidates for statewide and local offices,” id. at
1554–55.
Moreover, the district court misapplied our holdings in Cartwright and
Coffield. In Cartwright, the primary challenge was that Georgia’s 5 percent
requirement for ballot access violated the Qualifications Clause of the U.S.
Constitution. 304 F.3d at 1139. It is true that the decision also mentioned that
“this 5% signature requirement does not violate any other constitutional
provision,” id.; and it did note that the Jenness analysis “still equally pertains
today,” at least with respect to its Equal Protection analysis, id. at 1441–42.
However, the plaintiffs in Cartwright pointed to only two differences in the
relevant context to distinguish their case from Jenness, both of which the panel
rejected summarily as wholly without merit. Id. at 1141. Similarly, our decision
in Coffield appears to have rejected an attempt to distinguish Jenness, thus
affirming the district court’s dismissal, because the plaintiff’s allegations were
wholly insufficient to plausibly distinguish Jenness. See Coffield, 599 F.3d at
1277. Although both the Cartwright and Coffield panels rejected challenges to
Georgia’s ballot-access requirements without explicitly engaging in the analysis set
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forth in Anderson, we do not read those cases as refusing to engage in the
Anderson analysis. Rather, harmonizing those decisions with our binding
precedent in Bergland, we read them as recognizing no significant differences
from Jenness with respect to the relevant considerations. To the extent that those
cases could be read to hold that Jenness is dispositive and forecloses all challenges
to Georgia’s ballot-access requirements, such a holding would be inconsistent with
our clear holding in Bergland. As we recently recognized, “[o]ur adherence to the
prior-panel rule is strict, but when there are conflicting prior panel decisions, the
oldest one controls.” Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862 (11th
Cir. 2020) (citing Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir.
2000)).
For these reasons, we conclude that the district court erred by failing to
apply the analysis articulated in Anderson v. Celebreeze. We decline the Party’s
invitation that we address the merits of its claim; we would prefer that the district
court address that question in the first instance. As we have explained, the
Anderson test emphasizes the relevance of context and specific circumstances to
each challenge to ballot-access requirements. While this is not a pure question of
fact, we nonetheless believe that it is a question that the district court is better
equipped to address with testimony and other direct evidence.
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But though Bergland made clear that the Supreme Court’s opinion in
Jenness does not automatically preclude any subsequent challenges to Georgia’s
ballot-access requirements, the Party will, on remand, have to satisfactorily
distinguish its claims from those rejected in Jenness. The Party will have 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.
On appeal, the Party has pointed to numerous differences in the instant case
with respect to factors relevant in the Anderson balancing analysis, which it argues
are different from the relevant considerations that were before the Jenness court.
We decline to address those asserted differences from Jenness because the district
court should address those issues in the first instance on remand. Accordingly, we
vacate the district court’s grant of summary judgment and remand to the district
court with instructions to apply the Anderson analysis in the first instance.
B. Equal Protection Clause
The plaintiffs in this case also raise a challenge to Georgia’s ballot-access
requirements as running afoul of the Equal Protection Clause. As the Supreme
Court has recognized, to the extent that ballot-access requirements draw a
distinction, the “State must establish that its classification is necessary to serve a
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compelling interest.” Ill. State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 184 (1979) (citations omitted).
In Jenness, the Supreme Court rejected an Equal Protection challenge to
Georgia’s requirements. But we note that the Equal Protection challenge in
Jenness differs from the Party’s Equal Protection challenge in the instant case. In
Jenness, the challenge was as to the distinction between third-party (or “political
body”) candidates and major-party (or “political party”) candidates: the claim was
“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 party primary.” Jenness, 403 U.S. at 440. The
Supreme Court rejected this assumption, noting that Georgia has provided two
“alternative routes” to a candidate for getting his name on the ballot. Id. “He may
enter the primary of a political party, or he may circulate nominating petitions
either as an independent candidate or under the sponsorship of a political
organization.” Id. The Court noted that neither of these two alternative paths “can
be assumed to be inherently more burdensome than the other.” Id. at 441.
The Equal Protection challenge presented by the Party in this case is
substantially different from that presented in Jenness. The challenge here is not
between political party and political body candidates for the same offices, but
between political body candidates for different offices. Under Georgia law, a
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Libertarian Party candidate for statewide office is automatically entitled to ballot
access in 2020; this is because, in the 2018 general election, it “nominated a
candidate for state-wide office and such candidate received a number of votes
equal to 1 percent of the total number of registered voters who were registered and
eligible to vote in such general election.”3 O.C.G.A. § 21-2-180(2). However,
pursuant to the different Georgia requirement for non-statewide offices, Libertarian
congressional candidates are required to individually qualify for the ballot by
submitting a nominating petition “signed by a number of voters equal to 5 percent
of the total number of registered voters eligible to vote in the last election for the
filling of the office the candidate is seeking.” Id. § 21-2-170(b). Therefore, the
Party argues, its statewide candidates need to gather zero signatures while a full
slate of congressional candidates would need to gather 321,713 valid signatures.
The district court did not separately address the Party’s Equal Protection
challenge, instead considering it in tandem with the associational-rights challenge,
thus in effect holding that Jenness foreclosed the Party’s Equal Protection
challenge as well as its First and Fourteenth Amendment challenge. We hold only
3
In 2018, there were 6,935,816 voters eligible to vote in the general election. To automatically
qualify for ballot access in future statewide elections, the Libertarian Party was required to
receive at least 69,359 votes. Given that 3,939,328 votes were cast in the gubernatorial election,
this means that the Libertarian Party nominee for some statewide office would have been
required to get 1.76% of the vote. They qualified by getting 2.23% for Secretary of State; 2.65%
for Commissioner of Insurance; and 2.67% and 2.52% for the Public Service Commission,
Districts 3 and 5, respectively.
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that Jenness does not control the Equal Protection issue presented by the Party in
this case, because the Equal Protection claim presented here is sufficiently
different from that presented in Jenness. However, we again decline the Party’s
invitation that we address the merits of its Equal Protection claim, believing that
this question is best resolved by the district court in the first instance on remand, as
is the case with the First and Fourteenth Amendment challenge.4
III. CONCLUSION
For the foregoing reasons, we vacate the district court’s grant of summary
judgment to the Secretary of State and remand the case for further proceedings
consistent with this opinion. On remand, the district court is instructed to conduct
in the first instance the Anderson test with respect to Georgia’s ballot-access
requirements and consider the Libertarian Party’s Equal Protection challenge.
VACATED AND REMANDED.
4
We note that the plaintiffs in Bergland included an Equal Protection challenge to Georgia’s
ballot-access requirements, in addition to their First and Fourteenth Amendment challenge. 767
F.2d at 1552. Although our opinion in Bergland did not explicitly address the Equal Protection
claim separately from the First and Fourteenth Amendment challenge, the decision did vacate
and remand the Equal Protection challenge as well, notwithstanding Jenness. See id.
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JORDAN, Circuit Judge, concurring.
I join Judge Anderson’s opinion for the court. Although I can understand
why the district court believed that Jenness v. Fortson, 403 U.S. 431 (1971), was
controlling, I offer some additional reasons why it is not.
First, the plaintiffs have challenged not only Georgia’s 5% petition
requirement, see O.C.G.A. § 21-1-170(b), but also the qualifying fee for the office
of U.S. Representative, see O.C.G.A. § 21-2-132(d), and this latter claim was not
at issue in Jenness. As the Supreme Court explained in Jenness, the qualifying fee
had been declared unconstitutional and enjoined by the district court, and that
ruling was not challenged on appeal. See 403 U.S. at 432. So, whatever effect
Jenness may have had on the plaintiffs’ First and Fourteenth Amendment claims, it
did not foreclose or control the plaintiffs’ challenge to the qualifying fee.
Second, as Judge Anderson points out, the Supreme Court changed the
applicable constitutional standard in Anderson v. Celebrezze, 460 U.S. 780, 789
(1983). And “when the Supreme Court overturns the standard that it had
previously used to resolve a particular class of cases,” federal and state courts
“must apply the new standard and reach the result dictated under that new
standard.” Bryan Garner et al., The Law of Judicial Precedent § 2, at 31 (2016).
So Jenness, though not obsolete, does not control the outcome here.
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