Duke v. Massey

United States Court of Appeals,

Eleventh Circuit.

No. 95-8452.

David DUKE, Martha Andrews, William Gorton, and Victor Manget,
Plaintiffs-Appellants,

v.

Max CLELAND, Secretary of the State of Georgia and Chair of the
Presidential Candidate Selection Committee, et al., Defendants-
Appellees,

Alec L. Poitevint, as a Member of the Presidential Candidate
Selection Committee, Defendant-Intervenor-Appellee.

July 11, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CV-116-RCF), Richard C. Freeman,
Senior District Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and MILLS*, District Judge.

HATCHETT, Circuit Judge:

In this case, we affirm the district court's decision granting

summary judgment to Georgia state officials and Republican Party

officials who refused to place David Duke's name on the

presidential preference primary ballot for the 1992 election.

FACTS

David Duke, a controversial political figure, sought the

Republican Party's nomination for President of the United States

for the 1992 election. In pursuing the Republican Party

nomination, Duke participated in presidential primaries in various

*
Honorable Richard H. Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
states throughout the nation.1 In December 1991, Georgia's

Secretary of State, Max Cleland, prepared and published a list of

potential candidates for Georgia's presidential preference

primary.2 Duke's name appeared on the Georgia list of presidential

candidates for the Republican Party nomination. The Secretary

submitted his initial list of presidential primary candidates to

the presidential candidate selection committee (Committee) for the

Republican Party, the committee that is responsible for

representing the Republican Party in selecting the republican

candidates to appear on the presidential preference primary ballot,

according to section 21-2-193(a) of the Georgia Code.

On December 16, 1991, the Committee, consisting of Georgia's

Republican Party Chairperson Alec Poitevint, Senate Minority Leader

Tom Phillips, and House Minority Leader Paul Heard, met to discuss

the Secretary's list of potential presidential candidates.

Pursuant to their authority under O.C.G.A. § 21-2-193(a), the

Committee deleted Duke's name from the list of potential republican

presidential candidates.3 Following the Committee's decision, the

1
The record shows that Duke's name appeared on the ballot in
republican presidential primaries in 1992 in the following
states: Connecticut, Kansas, Louisiana, Massachusetts, Michigan,
Mississippi, Oklahoma, Oregon, Rhode Island, South Carolina,
Tennessee, Texas, and Washington.
2
The Secretary of State prepares a list of potential
presidential candidates comprised of persons "who are generally
advocated or recognized in news media throughout the United
States as aspirants for that office and who are members of a
political party or body which will conduct a Presidential
Preference Primary" in the state. O.C.G.A. § 21-2-193(a).
3
Under Georgia law, "each person designated by the Secretary
of State as a presidential candidate shall appear upon the ballot
of the appropriate political party or body unless all committee
members of the same political party or body as the candidate
Secretary of State published a list of presidential candidates that

did not include Duke's name. Prior to the January 6, 1992

statutory deadline, Duke petitioned pursuant to section 21-2-193(b)

of the Georgia Code to have the Secretary of State place his name

on the ballot. On January 8, 1992, the Committee held a meeting to

reconsider its earlier decision to exclude Duke from the

presidential primary preference ballot. Under the reconsideration

procedures, a single member of the Committee could have voted to

have Duke's name placed on the presidential preference primary

ballot and Duke's name would have been placed on the ballot.

O.C.G.A. § 21-2-193(b). No committee member voted to have Duke's

name placed on the ballot.

PROCEDURAL HISTORY

On January 15, 1992, Duke and voters who desired an

opportunity to vote for him filed this lawsuit in the District

Court for the Northern District of Georgia against the Committee

and Cleland, as the Secretary of State and as chair of the

Committee, seeking a temporary restraining order, a preliminary

injunction, and a permanent injunction, under 42 U.S.C. § 1983, to

prevent the printing of primary ballots for the 1992 Georgia

republican presidential preference primary without Duke's name

being listed as a candidate. In their complaint, the appellants

alleged that the Committee's decision to exclude Duke's name from

the primary ballot deprived them of their right to free speech,

right to association, right to due process, right of equal

agree to delete such candidate's name from the ballot." O.C.G.A.
§ 21-2-193(a).
protection, right to run for office and the right to vote, in

violation of the First and Fourteenth Amendments to the United

States Constitution. After Poitevint, chairperson of the Georgia

Republican Party, moved to intervene, the district court granted

Poitevint's motion to intervene and issued an order denying the

appellants' request for a temporary restraining order and

preliminary injunction. Duke v. Cleland, 783 F.Supp. 600

(N.D.Ga.1992). This court affirmed the decision in Duke v.

Cleland, 954 F.2d 1526 (11th Cir.), cert. denied, 502 U.S. 1086,

112 S.Ct. 1152, 117 L.Ed.2d 279 (1992) (hereinafter Duke I ).

After the plaintiffs were denied injunctive relief, they filed

an amended complaint adding an additional claim under 42 U.S.C. §

1983, claiming that Georgia's statute regulating presidential

preference primary candidate selection violated their rights of

free speech, right of association, right to equal protection, right

to run for office, right to vote, and right of due process

guaranteed under the First and Fourteenth Amendments to the

Constitution of the United States. Acting upon the appellees'

motion to dismiss for failure to state a claim, the district court

granted the appellees' motion to dismiss finding that the state

statute was constitutional, the appellants did not suffer any

constitutional violations, and that no state action occurred. This

court vacated the district court's decision and remanded in Duke v.

Cleland, 5 F.3d 1399 (11th Cir.1993) (hereinafter Duke II ),

finding that the Committee was an arm of the state, and therefore,

its actions constituted state action. This court remanded the case

to the district court to determine the state interest purportedly
advanced through O.C.G.A. § 21-2-193 and to weigh those interests

against the purported burdens on the appellants' constitutional

rights.

On remand to the district court, the appellees again moved for

summary judgment. The district court granted the appellees' motion

for summary judgment finding that the state had a compelling

interest in protecting political parties' right to define their

identity and finding that the statute was narrowly tailored to

advance the state's compelling interest.

CONTENTIONS

Duke and the voters contend the district court failed to

adhere to the holdings in Duke II and Duke v. Smith, 13 F.3d 388

(11th Cir.), cert. denied, Koczak v. Smith, --- U.S. ----, 115

S.Ct. 487, 130 L.Ed.2d 399 (1994) (Florida Duke ), causing it to

erroneously conclude that Duke's exclusion from the ballot was not

attributable to state action. They assert that Duke II held that

the exclusion of Duke from the primary ballot was state action and

that the plaintiffs in that case asserted that the state action

infringed their constitutionally protected rights. Second, Duke

and the voters contend that the power of the state to exclude and

the Committee's exclusion of Duke from the ballot failed any level

of constitutional scrutiny. They contend that the district court

erroneously found that the statute advanced a compelling interest

in a narrowly tailored manner. They also argue that the statute

actually undermines a political party's right to define its

membership, and that the power of the Committee to exclude a

candidate from the primary ballot is neither necessary nor narrowly
tailored because it violates their rights of free speech and

association under the First and Fourteenth Amendments. Finally,

they contend that the statute allows the committee unfettered

discretion to exclude anyone from being listed on the presidential

primary ballot, thus frustrating the stated purpose of the statute:

that is, to allow the voters of Georgia to "express their

preference for one person to be the candidate for nomination by his

party or body for the office of President...." O.C.G.A. § 21-2-

191.

The Committee contends that the district court correctly found

that section 21-2-193(a) of Georgia Code is constitutional because

the state has a compelling interest in protecting the First

Amendment rights of political organizations to define their

identity and to select their candidates. It contends that the

statute is narrowly tailored to achieve that purpose. It contends

that the statute requires a unanimous decision of all three of its

members to exclude a candidate and allows any member to

unilaterally replace an excluded candidate on the ballot. The

Committee also argues that the record demonstrates that Duke was

not even a member of the Republican Party.4
ISSUES

The issues we address in this appeal are: (1) whether the

district court erred in granting summary judgment to the Committee

finding that O.C.G.A. § 21-2-193(a) serves a compelling interest in

a narrowly tailored manner; and (2) whether the district court

erred in denying Duke and the voters' motions for summary judgment.

4
We find this contention meritless and do not address it.
 DISCUSSION

Our review of a district court's grant of summary judgment is

de novo. Thompson v. Metropolitan Multi-List, Inc.,934 F.2d 1566,

1570 (11th Cir.1991), cert. denied, Dekalb Bd. of Realtors, Inc. v.

Thompson, 506 U.S. 903, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992).

According to Federal Rule of Civil Procedure 56(c), summary

judgment is appropriate when "the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." A genuine issue of material fact exists when

a reasonable trier of fact considering the record evidence could

find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). In

this appeal, we independently review the record before the district

court and apply the same standards that the district court

employed. Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1425

(11th Cir.1992). We review all evidence and all factual inferences

from the evidence in the light most favorable to the nonmoving

party. Lee, 963 F.2d at 1425.

I. State Action

In this lawsuit, Duke and the voters brought their cause of

action under 42 U.S.C. § 1983, and therefore our initial inquiry

concerns: (1) whether the person engaged in the conduct complained

of was acting under color of state law; and (2) whether the

alleged conduct deprived a person of rights, privileges or

immunities guaranteed under the Constitution or laws of the United
States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908,

1912-13, 68 L.Ed.2d 420 (1981), overruled on other grounds by,

Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662

(1986); Burch v. Apalachee Community Mental Health Services, Inc.,

840 F.2d 797, 800 (11th Cir.1988), aff'd by, Zinermon v. Burch, 494

U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Under the first

prong of the test, this court has previously determined that the

actions of the Committee taken pursuant to O.C.G.A. § 21-2-193

constitute state action. See Duke v. Cleland, 5 F.3d 1399, 1403-04

(11th Cir.1993). Therefore, our analysis focuses on determining

whether genuine issues of material fact exist regarding the alleged

deprivation of Duke and the voters' constitutional rights and the

state's purported interests in advancing O.C.G.A. 21-2-193, and

whether the Committee was entitled to judgment as a matter of law.

Although this court has determined that the actions of the

Committee constitute state action, the district court found that

the committee members' decision to exclude Duke from the

presidential primary ballot was not necessarily state action

because the committee members made the decision in their capacity

as representatives of the Republican Party. Duke v. Cleland, 884

F.Supp. 511, 515 n. 2 (N.D.Ga.1995). While we perceive the

distinction the district court attempts to make regarding the

committee members' action taken under O.C.G.A. § 21-2-193, we

disagree with the conclusion that a distinction exists. As this

court noted in Duke II,

the statute represents a scheme whereby the state confers
largely upon itself the raw power to choose who may or may not
be party primary candidates. Two-thirds of the committee's
voting members are elected officials representing their
 respective party. No guidelines limit their power. The
committee may exclude nationally recognized candidates for any
reason or no reason at all.

Duke, 5 F.3d at 1403. In light of the foregoing, we disagree with

the district court's suggestion that the Committee's decision to

exclude Duke was not state action, but we agree with the district

court's conclusion that the committee members also acted as

representatives of the Republican Party. We follow Duke II in

holding that the Committee's decision to exclude Duke from

Georgia's presidential primary ballot pursuant to O.C.G.A. § 21-2-

193 constituted state action.

II. Deprivation of Rights

Since we have determined that the Committee's decision to

exclude Duke from the primary ballot constituted state action, we

now assess the purported interests that Duke and the voters alleged

were infringed and the state's interests for enacting O.C.G.A. §

21-2-193. In our analysis, we are mindful of the Supreme Court's

teachings that

a court considering a challenge to a state election law 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
interest 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 right."

Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 2063, 119

L.Ed.2d 245 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780,

789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983)). Although the

Supreme Court has indicated that a flexible approach may be

necessary to determine the proper standard of judicial review to be

applied in ballot access cases, we note that when a state election
law burdens a fundamental constitutional right severely, that law

may survive only if it satisfies strict scrutiny; that is, it must

be narrowly tailored to further a compelling state interest. Eu v.

San Francisco County Democratic Cent. Committee, 489 U.S. 214, 222,

109 S.Ct. 1013, 1019-20, 103 L.Ed.2d 271 (1989); Duke, 5 F.3d at

1405. On the other hand, a state law that imposes only reasonable

nondiscriminatory restrictions upon the First and Fourteenth

Amendment rights of persons in order to further the state's

regulatory interests are generally sufficient to support the

restrictions. Burdick, 504 U.S. at 434, 112 S.Ct. at 2063-64;

Duke, 5 F.3d at 1405.

A. Duke's Interest

In this appeal, Duke asserts that the Committee's decision

and the Georgia statute severely burdened his rights of free speech

and association under the First and Fourteenth Amendments to the

United States Constitution. Duke contends that because the statute

grants the committee members "unfettered discretion" to grant or

deny ballot access it is unconstitutional in that it allows the

Committee members to exclude candidates based on the content of

their speech. Duke argues that the statute also infringes his

right to freedom of association.

We observed in Duke I that Duke does not have a right to

associate with an "unwilling partner," the Republican Party. Duke,

954 F.2d at 1530. In Duke I, we found that the Committee did not

infringe Duke's right of association because the Republican Party

has a right to "identify the people who constitute the association

and to limit the association to those people only." Duke, 954 F.2d
at 1531 (quoting Democratic Party of United States v. Wisconsin,

450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981)). Our decision

in Duke II alters the analysis in this case, however, because in

Duke II, we found that the Committee's decision to exclude Duke

from the presidential primary ballot was not solely attributable to

the Republican Party, but was partly attributable to the state of

Georgia because the Committee derived its power to make the

decision to exclude Duke under O.C.G.A. § 21-2-193 and not from the

Republican Party.5 Duke, 5 F.3d 1399, 1403-04. The district court

correctly pointed out, however, that notwithstanding the presence

of state action, the committee members also served as

representatives of the Republican Party. Duke v. Cleland, 884

F.Supp. 511, 515 (N.D.Ga.1995). Duke has an interest in being free
6
from state discrimination based on the content of his speech.

Chicago Police Department v. Mosley, 408 U.S. 92, 96-98, 92 S.Ct.

2286, 2290-92, 33 L.Ed.2d 212 (1972). Under our reasoning in Duke

v. Smith, Duke also has a procedural due process right to have his

petition to be placed on the ballot to be free from a committee's

"unfettered discretion" in rendering a decision. Duke v. Smith, 13

F.3d 388, 395 (11th Cir.1994). Although Duke is correct in

5
Therefore, we must focus not only on the interests of the
Republican Party, but we must also consider the state's interests
in establishing the Committee.
6
The record shows that the members of the Committee wanted
to exclude Duke from the presidential primary ballot based on his
political beliefs and speech that were inconsistent with the
Republican Party's principles. For example, a press release
quoted one of the committee members as stating that "Duke is a
fraud and charlatan whose Nazi ties are an affront to our parents
and grandparents who fought to protect our country and this world
from domination by Hitler.... There is no room for disciples of
Hitler on the Republican Presidential Ballot."
identifying his First and Fourteenth Amendment interests, those

interests do not trump the Republican Party's right to identify its

membership based on political beliefs nor the state's interests in

protecting the Republican Party's right to define itself. Duke,

954 F.2d at 1531. Therefore, the Committee, acting as

representatives of the Republican Party under O.C.G.A. § 21-2-193,

did not heavily burden Duke's First Amendment and Fourteenth

Amendment rights when it excluded him from the Republican Party's

presidential primary ballot.

B. Voters' Interest

The voters, supporters of Duke, claim that O.C.G.A. § 21-2-

193 burdens their associational rights and their right to vote for

a candidate of their choice. The voters contend that under Lubin

v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974), the

right to vote is "heavily burdened" when the choices of candidates

on primary ballots are restricted and other persons are "clamoring"

to be listed on the election ballot. While Lubin does stand for

the proposition that the voters urge, it also stands for the

proposition that every voter cannot be assured that the voter's

preferred candidate will be allowed on the ballot. Lubin, 415 U.S.

at 716-17, 94 S.Ct. at 1320. The voters cite Anderson v.

Celebrezze, 460 U.S. 780, 787-88, 103 S.Ct. 1564, 1569-70, 75

L.Ed.2d 547 (1983) for the proposition that the Committee's

exclusion of Duke from the ballot burdened their First and

Fourteenth Amendments right to associate for the advancement of

their shared political beliefs and their right to endorse or oppose

a particular candidate and the issues the candidate espouses. The
voters argue that under the statute, the Committee has unfettered

discretion to decide who is fit and who is not fit to run as a

republican. The Supreme Court has recognized that a free and open

debate on the qualifications of candidates is "integral to the

operation of the system of government established by our

Constitution," and that burdens on candidate access to the ballot

directly burden the voters' ability to voice preferences. Buckley

v. Valeo, 424 U.S. 1, 14, 94, 96 S.Ct. 612, 632, 670-71, 46 L.Ed.2d

659 (1976). In this case, however, the voters have failed to offer

any authority suggesting that they have a right to vote for their

candidate of choice as a republican in a nonbinding primary.7 In

fact, this court has previously determined that any burden on these

voters is "considerably attenuated" and possibly nonexistent.

Duke, 954 F.2d at 1531.

C. The State's Interest

The district court determined that the state has an interest

in regulating the time, place and manner of elections. Duke v.

Cleland, 884 F.Supp. 511, 514 (N.D.Ga.1995). Moreover, the

Committee claimed that the state has an interest in regulating

ballot access. Indeed, the Supreme Court has recognized that the

State's interest in keeping its ballots within manageable

understandable limits is of the highest order. Bullock v. Carter,

405 U.S. 134, 144-45, 92 S.Ct. 849, 856-57, 31 L.Ed.2d 92 (1972).

The Committee asserted that the state has an interest in protecting

the rights of political parties to define their membership and that

7
Nothing precludes these voters from supporting Duke as an
independent candidate or a third-party candidate in the general
election.
O.C.G.A. § 21-2-193(a) and (b) provide a mechanism for those

interests to be furthered. The Committee claimed that the

Republican Party has a clear and well fortified First Amendment

right to define its membership under Duke I. Duke v. Cleland, 954

F.2d 1526, 1530 (11th Cir.1992) (finding that the Republican Party

enjoys a constitutionally protected freedom that includes the right

to identify the people who constitute its association). States do

have an interest in regulating the time, place and manner of

elections. Burdick v. Takushi, 504 U.S. 428, 433-434, 112 S.Ct.

2059, 2063-64, 119 L.Ed.2d 245 (1992). A responsibility emanating

from that interest is the state's duty to determine how many names

will appear on a primary ballot. Anderson, 460 U.S. at 786-90, 103

S.Ct. at 1568-71. Undoubtedly, in performing its obligation to

regulate elections a state will impose some burdens upon voters and

political parties. Burdick, 504 U.S. at 433, 434, 112 S.Ct. at

2063, 2063-64.

III. Strict Scrutiny

Although we do not believe that Duke and the voters' rights

were heavily burdened as a result of the Committee's decision under

O.C.G.A. § 21-2-193, we will apply strict scrutiny as the district

court did in order to err on the side of caution. Undeniably, Duke

has a First Amendment right to express his political beliefs free

from state discrimination no matter how repugnant his beliefs may

be to others. Chicago Police Department v. Mosley, 408 U.S. 92,

96-98, 92 S.Ct. 2286, 2290-92, 33 L.Ed.2d 212 (1972); see

generally Rutan v. Republican Party of Illinois, 497 U.S. 62, 69,

110 S.Ct. 2729, 2734, 111 L.Ed.2d 52 (1990). It is equally clear,
however, that he does not have a First Amendment right to express

his beliefs as a presidential candidate for the Republican Party.

Duke v. Cleland, 954 F.2d 1526, 1531 (11th Cir.1992); see also

Democratic Party of U.S. v. Wisconsin, 450 U.S. 107, 101 S.Ct.

1010, 67 L.Ed.2d 82 (1981). The Republican Party has a First

Amendment right to freedom of association and an attendant right to

identify those who constitute the party based on political beliefs.

Duke, 954 F.2d at 1533; Wisconsin, 450 U.S. at 122, 101 S.Ct. at

1019 (finding that a party's freedom of association presupposes the

freedom to identify the people who constitute the association and

limit the association to those people only). Therefore, the

Committee acting in a representative capacity for the Republican

Party did not have to accept Duke as a republican presidential

candidate. Duke does not have the right to associate with an

"unwilling partner." Duke, 954 F.2d at 1530; see also Belluso v.

Poythress, 485 F.Supp. 904, 912 (N.D.Ga.1980). Likewise, Duke

supporters do not have a First Amendment right to associate with

him as a Republican Party presidential candidate. Duke, 954 F.2d

at 1531. Duke's supporters were not foreclosed from supporting him

as an independent candidate, or as a third-party candidate in the

general election. Moreover, Duke's supporters could have supported

him as a third-party candidate in the primary or as a write-in

candidate in the primary or general election.

The state has a compelling interest in protecting political

parties' right to define their membership. Duke, 954 F.2d at 1530.

Moreover, states have a significant interest in structuring and

regulating elections in order to facilitate order, honesty and
fairness. Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279,

39 L.Ed.2d 714 (1974). Common sense dictates that states must

regulate elections and that the regulations will necessarily impose

some burden upon voters and parties. Burdick, 504 U.S. at 433, 112

S.Ct. at 2063. We believe that O.C.G.A. § 21-2-193 is narrowly

tailored to further Georgia's compelling state interests. Under

the statute, three party leaders are appointed to serve on the

Committee.8 Although the Committee's decision to exclude a

candidate from the presidential primary ballot is unreviewable by

the entire membership of the party, these committee members are

leaders in the Republican Party and are ultimately held accountable

for their decisions by the membership of the Republican Party.

Under the terms of O.C.G.A. 21-2-193, a person cannot serve on the

Committee unless the membership of the Republican Party has placed

them in a key leadership position. Surely, these persons are aware

of the principles and platform of the Republican Party and can

decide what presidential candidates are aligned with the party's

views. Therefore, as leaders the membership of the party elected,

they have been entrusted with the authority to make decisions for

the party, and O.C.G.A. § 21-2-193 recognizes that these party

leaders are in the best position to decide who should appear on

Georgia's Republican Party presidential primary ballot.

Duke and the voters point to this court's decision in Duke v.

Smith, 13 F.3d 388 (11th Cir.1994) (Florida Duke ) for support in

8
It is difficult to imagine composing a committee of party
leaders who are in a better position to determine how a
presidential candidate lines up with the views of the party than
the State Chairperson of the party and the Majority and Minority
leaders of both the state house and senate.
arguing the unconstitutionality of Georgia's election statute.

Although the statute involved in the Florida Duke case closely

resembles the statute involved in this case, the differences

between both the state's interests and the statutes warrant a

different outcome. In the Florida Duke case, we only found that

the "reconsideration provision" of the Florida statute was

unconstitutional because no compelling interest existed for having

the provision of the statute and that the provision endowed the

presidential primary selection committee with "unfettered

discretion" in the reconsideration process of excluded candidates.

Duke, 13 F.3d at 395. First, the district court correctly

determined that the state of Georgia, unlike the state of Florida,

offered a compelling state interest that the statute furthered:

namely, protecting political parties' rights to define themselves.

Second, under the Florida statutes' reconsideration process, the

statute merely stated a certain date and time that the Committee

had to reconvene in order to determine whether a candidate would be

placed on the presidential primary ballot. The Florida statute

does not mention how a candidate may be placed on a ballot. Under

the Georgia statute, however, any single member of the Committee

may unilaterally place an excluded candidate's name on the

presidential primary ballot. O.C.G.A. § 21-2-193(b). Therefore,

the Georgia statute provides each of the committee members the

ability to act as a check against arbitrary and capricious

decisions. Duke and the voters argue that the operation of the

Georgia statute actually undermined its purported interest in

protecting a political party's ability to define itself because it
allows the committee members to make decisions that the party

membership may not review. This argument suggests that the full

party should have the right to determine what names appear on the

ballot for a presidential primary. As the district court aptly

pointed out, a system that would require a full party vote to put

candidates on the presidential primary ballot would likely

duplicate the results of the primary itself and also of the

Committee. Duke, 834 F.Supp. at 518 n. 6. We hold that O.C.G.A.

§ 21-2-103 is narrowly tailored as it provides the state an

efficient and effective means of furthering its compelling interest

of protecting a political party's right to exclude persons with

"adverse political principles."

CONCLUSION

Because we find that neither Duke nor his supporters' First or

Fourteenth Amendment rights were heavily burdened and that O.C.G.A.

§ 21-2-193 is narrowly tailored to serve a compelling state

interest, the district court did not err in granting summary

judgment.

AFFIRMED.