Green v. Mortham

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ 09/24/98
THOMAS K. KAHN
No. 98-2042 CLERK
________________________

D. C. Docket No. 96-CV-1143-T-23A

HENRY GREEN,
Plaintiff-Appellant,

versus

SANDRA BARRINGER MORTHAM, Secretary of State, State of Florida, in her
official capacity,
Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(September 24, 1998)

Before TJOFLAT, COX and HULL, Circuit Judges.

HULL, Circuit Judge:
 In this ballot access case, Appellant Henry Green challenges the

constitutionality of Florida’s alternative qualifying fee and signature petition

requirements for ballot access in a Congressional primary election.1 The

magistrate judge held that Florida’s alternative ballot access requirements in a

Congressional primary election are constitutional.2 We affirm.

I. BACKGROUND

In the Spring of 1996, Henry Green, a registered Democrat, desired to run for

the Congressional seat from Florida’s Tenth Congressional District. Green first had

to win the Democratic primary to appear as the Democratic candidate on the general

election ballot. Green had two ways to qualify for the Congressional primary ballot.

First, Green could pay a statutory qualifying fee equal to seven and a half

percent of the annual salary for the office he sought, amounting to a $10,020 fee in

1996. Fla. Stat. Ann. § 99.092 (West Supp. 1998).3 This seven and a half percent

1
In this opinion, “Congressional” refers to only the United States House of
Representatives.
2
The parties consented to proceeding before the magistrate judge. See 28 U.S.C. §
636(c).
3
Although amended in 1997, § 99.092 in 1996 provided:

Each person seeking to qualify for nomination or election to any office, except a
person seeking to qualify pursuant to § 99.095 and except a person seeking to
qualify as a write-in candidate, shall pay a qualifying fee, which shall consist of a
filing fee and election assessment, to the officer with whom the person qualifies,

2
qualifying fee represented the aggregate of three separate fees–a four and a half

percent filing fee, a two percent election or trust fund assessment, and a one percent

party assessment. Id.4

Alternatively, Green could file a petition with signatures of three percent of the

registered Democratic voters in Florida’s Tenth Congressional District. Fla. Stat.

Ann. § 99.095 (West Supp. 1998).5 This petitioning alternative required 4,077

and any party assessment levied, and shall attach the original or signed duplicate
of the receipt for his or her party assessment or pay the same, in accordance with
the provisions of § 103.121, at the time of filing his or her other qualifying
papers. The amount of the filing fee is 4.5 percent of the annual salary of the
office. . . . The amount of the election assessment is 1 percent of the annual
salary of the office sought. . . . The amount of the party assessment is 2 percent
of the annual salary.

Fla. Stat. Ann. § 99.092 (West Supp. 1998).
4
The filing fee component was divided between Florida’s election campaign financing
trust fund, the state’s general revenue fund, and the candidate’s political party. Boudreau v.
Winchester, 642 So. 2d 1, 1-2 (Fla. Dist. Ct. App. 1994); McName v. Smith, 647 So.2d 162 (Fla.
Dist. Ct. App. 1994). The trust fund assessment went toward a quasi-judicial board to pursue
complaints filed with the Division of Elections. See Boudreau, 642 So.2d at 1-2; see also Fla.
Stat. § 106.24. The party assessment went to the candidate’s political party. Boudreau, 642
So.2d at 2.
5
Section 99.095 provides:

A person seeking to qualify for nomination to any office may qualify to have his
or her name placed on the ballot for the first primary election by means of the
petitioning process prescribed in this section. A person qualifying by this
alternative method shall not be required to pay the qualifying fee or party
assessment required by this chapter.
...
. . . A candidate for any federal, state, county, or district office to be
elected on less than a statewide basis shall obtain the signatures of a number of
qualified electors of the district, county, or other geographical entity equal to at
least 3 percent of the total number of registered voters of the party by which the

3
signatures. After swearing an intent to qualify by petition, a candidate is given “forms

in sufficient numbers to facilitate the gathering of [the requisite] signatures.” Fla.

Stat. Ann. § 99.095 (2) (1982).

Green did not meet either requirement by the respective deadline. On May 21,

1996, the Florida legislature extended the deadlines to June 10 for a signature petition

and to June 21 for paying the qualifying fee.6 Green admits he made no effort to

collect signatures and qualify by petition.

On June 12, 1996, Green filed this action against Florida’s Secretary of State,

Sandra Barringer Mortham (“the Secretary of State”), seeking a declaration that

Florida’s ballot access requirements for primary elections were unconstitutional,

injunctions against enforcement of those requirements, and attorneys’ fees and costs.

Green also filed a motion for an injunction ordering that his name be placed on the

1996 Democratic primary ballot for the Tenth District Congressional seat. The

Secretary of State’s Answer stipulated to the facts stated in Green’s complaint and

asserted that Florida’s ballot access statutes for primaries were constitutional.

candidate seeks nomination that are registered within the district, county, or other
geographical entity represented by the office sought, as shown by the compilation
by the Department of State for the last preceding general election.

Fla. Stat. Ann. § 99.095 (1), (3) (West Supp. 1998).
6
The deadlines were changed to alleviate any prejudice that might have resulted from
another district court decision invalidating the configuration of Florida’s Third Congressional
District. See Johnson v. Mortham, 950 F. Supp. 1117, 1120 (N.D. Fla. 1996).

4
 One day before the new deadline for paying the fee, the Democratic

Congressional Campaign Committee and the Florida Democratic Party each donated

$5000 to Green’s campaign. Green timely paid the $10,020 qualifying fee under

protest. Unopposed in the Democratic primary, Green ran in the general election and

was defeated by the twenty-six-year Republican incumbent.

Although withdrawing his motion for preliminary injunctive relief, Green

continued his request for declaratory relief, a permanent injunction, and attorneys’

fees and costs. Green later amended his complaint to seek a refund of his $10,020

qualifying fee on the basis that it could have been used to run his campaign.

While the parties’ cross-motions for summary judgment were pending, the

Florida legislature reduced the statutory qualifying fee from seven and a half percent

to six percent of an elective office’s salary. See 1997 Fla. Laws, ch. 97-13, § 11; Fla.

Stat. Ann. § 99.092 (West Supp. 1998). This reduced the fee from $10,020 in the

1996 Congressional primary to $8016 for the 1998 primary.7 Green’s amended

complaint challenged this statute as applied to him in 1996 and as would be applicable

to him in the 1998 primary. The parties amended their cross-motions accordingly.

After a hearing, the magistrate judge upheld Florida’s ballot access requirements as

7
The 1998 fee would have been $8016 based on the Congressional salary as of July 1,
1997. However, on October 10, 1997, a 2.3% cost-of-living adjustment increased Congressional
salaries from $133,600 to $136,672, resulting in a $8200 filing fee for the 1998 primary.

5
constitutional, denying summary judgment to Green and granting summary judgment

to the Secretary of State. Green appeals.8

II. DISCUSSION

A. Qualification Statistics

Over the years, numerous candidates have run in Florida’s party primaries for

Congressional seats. From 1978 to 1988, Florida’s qualifying fee was five percent of

a Congressional salary. See 1977 Fla. Laws, ch. 77-175, § 6 (amended 1979). During

those years, an average of forty-eight candidates qualified for each year of

Congressional primaries. All candidates qualified by paying the five percent fee.

Between 1990 and 1998, the Florida legislature increased the qualifying fee first

to six percent and then to seven and a half percent, but later decreased the fee back to

six percent. See 1989 Fla Laws, ch. 89-338, § 8 (increasing the fee to six percent

effective January 1, 1990); 1991 Fla. Laws, ch. 91-107 § 1 (increasing the fee to seven

and a half percent effective July 1, 1991); 1997 Fla. Laws, ch. 97-13, § 11 (decreasing

8
The magistrate judge first addressed ripeness, mootness, and standing concerns and held
Green’s claims justiciable. The Secretary of State did not cross-appeal.

6
the fee back to six percent effective January 1, 1998). The table below summarizes

the recent qualification statistics for Congressional primary elections in Florida:

Year Qualifying Number of Number Number
Fee (percent Candidates Qualifying by Qualifying by
of salary) Qualifying9 Paying Fee Petition
1990 6% 45 45 0
1992 7.5% 87 68 19
1994 7.5% 58 42 16
1996 7.5% 59 38 21
1998 6% 29 20 9

Notably, when Florida increased the fee to seven and a half percent in 1992, the

number of Congressional candidates qualifying for party primaries did not decrease

but increased to the highest number of all years for which the parties submitted

evidence in this case. When the fee was decreased back to six percent in 1998, there

was no accompanying rise in the number of candidates qualifying.

B. Anderson’s Balancing Test

The Constitution provides that states may prescribe “[t]he Times, Places and

Manner of holding Elections for Senators and Representatives.” U.S. Const. art I, §

4, cl. 1. The Supreme Court long has recognized that states have important and

compelling interests in regulating the election process and in having ballot access

9
Florida had nineteen Congressional districts in the 1980s and twenty-three in the 1990s.

7
requirements. Burdick v. Takushi, 504 U.S. 428, 433 (1992); Anderson v. Celebrezze,

460 U.S. 780, 788 & n.9 (1983); see also Lubin v. Panish, 415 U.S. 709, 715 (1974);

Jenness v. Fortson, 403 U.S. 431, 442 (1971). The states’ compelling interests include

maintaining fairness, honesty, and order, Burdick, 504 U.S. at 433, minimizing

frivolous candidacies, Lubin, 415 U.S. at 715, and “avoiding confusion, deception,

and even frustration of the democratic process,” Jenness, 403 U.S. at 442. See also

Anderson, 460 U.S. at 788 & n.9. These same Supreme Court cases also recognize

candidates’ constitutional rights under the First and Fourteenth Amendments to

associate for political ends and to participate equally in the electoral process. See

Burdick, 504 U.S. at 433; Anderson, 460 U.S. at 787-88; Lubin, 415 U.S. at 716-18;

Jenness, 403 U.S. at 440. Therefore, in Anderson, the Supreme Court set forth the test

for considering whether a state’s ballot access requirements impermissibly infringe

a candidate’s constitutional rights.

The Supreme Court instructed that the courts first 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 interests 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 rights.” Anderson, 460 U.S. at 789; see also Tashjian v. Republican Party

8
of Connecticut, 479 U.S. 208, 213-14 (1986). This Court has described the Anderson

test as a “balancing approach” in several decisions. See, e.g., Bergland v. Harris, 767

F.2d 1551, 1553-54 (11th Cir. 1985) (describing Anderson as rejecting a “litmus-

paper test” and adopting “the balancing approach”); Libertarian Party of Florida v.

State of Florida, 710 F.2d 790, 793 (11th Cir. 1983) (stating “the test is whether the

legislative requirement is a rational way to meet this compelling state interest”).

D. Post-Anderson Decisions

We would proceed immediately to applying Anderson’s balancing test were it

not for a more recent decision of this Court finding uncertainty about the standard to

be applied. In Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992), this Court noted that

although Anderson “deviated from the strict scrutiny model of analysis,” the Supreme

Court in Norman v. Reed, 502 U.S. 279 (1992), “returned to the traditional strict

scrutiny analysis in striking down two provisions of an Illinois law that made it

difficult for a new political party to obtain a position on the ballot.” Duke, 954 F.2d

at 1530 (citing Norman v. Reed). Thus, the Duke court found “uncertainty in the

specific standard to be employed,” but held that the plaintiffs seeking an injunction

were unlikely to prevail “even under a strict scrutiny analysis.” Id.

A few months after Duke, the Supreme Court decided Burdick v. Takushi, 504

U.S. 428 (1992), which sheds further light on the standard for analyzing state election

9
laws that burden First and Fourteenth Amendment rights. In Burdick, the Supreme

Court stated that “the mere fact that a State’s system ‘creates barriers . . . to limit the

field of candidates from which voters might choose . . . does not of itself compel close

scrutiny.’ Instead, as the full Court agreed in Anderson, a more flexible standard

applies.” Id. at 433-34 (internal citations omitted). After repeating the Anderson test,

the Supreme Court in Burdick instructed specifically how to apply that test. Citing

Norman v. Reed, the Supreme Court stated that when the First and Fourteenth

Amendment rights “are subjected to ‘severe’ restrictions, the regulation must be

‘narrowly drawn to advance a state interest of compelling importance.’” Id. at 434.

Then citing Anderson again, the Supreme Court continued that “when a state election

law provision imposes only ‘reasonable, nondiscriminatory restrictions’” on those

constitutional rights, then “‘the State’s important regulatory interests are generally

sufficient to justify’ the restrictions.” Id.

A few months after Burdick this Court addressed the Anderson test again. In

Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992), this Court stated that “the

approach used by the Anderson Court can be described as a balancing test that ranges

from strict scrutiny to a rational-basis analysis, depending on the circumstances.” Id.

at 1543 (emphasis added). After that description, this Court in Fulani also noted that

in Burdick v. Takushi, “the Supreme Court reiterated the Anderson test and reaffirmed

10
that ‘to subject every voting regulation to strict scrutiny and to require that the

regulation be narrowly tailored to advance a compelling state interest . . . would tie the

hands of States seeking to assure that elections are operated equitably and

efficiently.’” Id. (quoting Burdick, 504 U.S. at 434).10

After this review, we conclude that the Anderson balancing test still controls

challenges to ballot access requirements and proceed to apply that test in the manner

instructed in Burdick.

D. Florida’s Statutes Are Reasonable and Non-Discriminatory

The first step is to determine whether Florida’s alternative qualifying fee and

signature petition requirements impose reasonable, non-discriminatory restrictions or

severe restrictions. We readily conclude Florida has adopted reasonable,

nondiscriminatory ballot access restrictions for several reasons.

First, filing fees have long been considered a reasonable, non-discriminatory

means of regulating ballot access so long as there is an alternative means of ballot

access as exists in Florida’s signature petition alternative. See Lubin v. Panish, 415

U.S. 709, 718-19 (1974); Bullock v. Carter, 405 U.S. 134, 144-45 (1972). This Court

10
The Fulani court did observe that Burdick, Tashjian, and Anderson each involved
challenges based solely on the First Amendment and not equal protection. Id. Nonetheless, the
Fulani court cited this Court’s prior decision in Bergland v. Harris, 767 F.2d 1551, 1552 (11th
Cir. 1985), and held that “[i]n this circuit, however, equal protection challenges to state ballot-
access law are considered under the Anderson test.” Id.

11
already upheld the constitutionality of Florida’s filing fee in 1994 when it was four

and half percent of the annual salary of the office sought, noting that “an alternative

method is also available.” Little v. Florida Dept. of State, 19 F.3d 4, 5 (11th Cir.

1994). In Little, this Court also noted that a filing fee of up to five percent of the

salary of the state office sought had been upheld in Adams v. Askew, 511 F.2d 700,

704-05 (5th Cir. 1975).11

Second, conceding that a five percent qualifying fee has been held

constitutional, Green presents no evidence that raising the fee to seven and a half

percent reduced the total number of people qualifying for major party primaries or in

any other manner unnecessarily burdened his constitutional rights given the petition

alternative. Indeed, when the fee was lowered back to six percent in 1998, there was

no concomitant increase in candidates qualifying. Thus, we agree with the Florida

appellate courts that have held that Florida’s qualifying fee of seven and a half percent

of the annual salary of the office sought in 1996 is reasonable. Boudreau v.

Winchester, 642 So. 2d 1 (Fla. Dist. Ct. App. 1994) (upholding total seven and a half

percent qualifying fee against challenge to its partial disbursement to candidate’s party

11
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981 and all Fifth Circuit Unit B decisions after October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc); Stein v. Reynolds Securities, Inc., 667 F.2d 33,
33 (11th Cir. 1982).

12
and to trust fund); McNamee v. Smith, 647 So.2d 162 (Fla. Dist. Ct. App. 1994)

(same).

Turning to the petition alternative, the Supreme Court has upheld petition

requirements more onerous than the three percent requirement at issue here. Jenness

v. Fortson, 403 U.S. 431, 438-39 (1971) (finding it constitutional to require signatures

from five percent of electorate within 180 days). Addressing Florida’s ballot access

restrictions in particular, this Court already has upheld another section of Florida’s

election code that requires minor political parties to file a petition signed by three

percent of the state’s registered voters in order to have the names of its candidates

placed on ballots for statewide offices. Libertarian Party of Florida v. State of Florida,

710 F.2d 790 (11th Cir. 1983) (upholding Fla. Stat. Ann. § 99.096(1) (West 1982));

see also U.S. Taxpayers of Florida v. Smith, 871 F. Supp. 426 (N.D. Fla. 1993), aff’d,

51 F.3d 241 (11th Cir. 1995).

Thus, Florida’s petition alternative for major-party candidates is likewise

reasonable, especially under the particular facts here. In 1998, candidates had three

months–or approximately ninety-six days–to collect signatures. Green needed to

collect approximately fifty-two signatures per day. The magistrate judge aptly noted

that Green could comply by asking five volunteers each to collect ten signatures a day.

Moreover, Green admits that he never tried to collect signatures. Some

13
Libertarian plaintiffs “testified they had not even attempted to undertake a petition

drive because in their view the 3% requirement was simply impossible to meet.” Id.

at 794. Thus, this Court in Libertarian concluded that those plaintiffs’ “[c]onclusory

allegations cannot prevail.” Id. Likewise, Green’s conclusory allegations about the

three percent petition requirement here do not show that the signature requirement is

unreasonably burdensome.

We recognize that one distinction between Libertarian and Green’s claims is

that only registered Democratic voters in the Tenth Congressional District may sign

Green’s petition. Although the available pool of voters is smaller, the number of

signatures required is also smaller.12 Green’s petitioning efforts are eased by the

limited geographic area in which eligible signers live. Green stresses several other

candidates attempted petitioning but failed to obtain the requisite number of

signatures. However, since 1992, sixty-five candidates have qualified for

Congressional seats in Florida’s major party primaries by petition, which defeats

Green’s argument.

Green also complains that Florida charges a verification fee of ten cents per

signature or the actual cost of verification, whichever is less. Fla. Stat. Ann. §

12
The plaintiffs in Libertarian needed144,492 signatures statewide, id. at 792, whereas
Green needed only 4,077 from the Tenth Congressional District.

14
99.097(4) (West Supp. 1998).13 However, this does not make Florida’s petition

requirement unreasonable or unduly burdensome for two reasons. First, a candidate

also may collect fifteen percent more than the required number of signatures and

thereby qualify to pay for only a random sampling of the signatures to be checked.

Fla. Stat. Ann. § 99.097(2).14 Second, the verification fee is waived for candidates

who swear that the charges impose an undue burden on their resources. Fla. Stat.

Ann. § 99.097(4).15

After acknowledging Florida’s charges for verifying signatures, this Court in

Libertarian likewise pointed out that “Florida provides petitions free of charge,” and

that although “[c]ounty election supervisors charge 10 cents per signature to cover the

costs of verifying the petitions, . . . they may use random sampling techniques which

reduce the number of signatures checked and therefore the cost.” Libertarian, 710

13
“The supervisor shall be paid the sum of 10 cents for each signature checked or the
actual cost of checking such signature, whichever is less . . . .” Fla. Stat. Ann. § 99.097 (4).
14
“When a petitioner submits petitions which contain at least 15 percent more than the
required number of signatures, the petitioner may require that the supervisor of elections use the
random sampling verification method in certifying the petition.” Fla. Stat. Ann. § 99.097 (2).
15
“However, if a candidate . . . cannot pay such charges without imposing an undue
burden on personal resources or upon the resources otherwise available to such candidate . . . ,
such candidate . . . shall, upon written certification of such inability given under oath to the
supervisor, be entitled to have the signatures verified at no charge.” Fla. Stat. Ann. § 99.097 (4).

15
F.2d at 794. Like the plaintiffs in Libertarian, Green has “cited no case holding that

states must provide free access to the ballot in all circumstances.” Id.16

Having concluded that Florida’s fee and petition alternatives impose reasonable

restrictions on ballot access, we also conclude that the requirements are justified by

the state’s compelling objectives. As noted above, the Supreme Court long has

emphasized the importance of restricting ballot access: “in requiring some preliminary

showing of a significant modicum of support before printing the name of a political

organizations’s candidate on the ballot–the [state’s] interest, if no other, [is] in

avoiding confusion, deception, and even frustration of the democratic process at the

general election.” Jenness, 403 U.S. at 442. Florida’s strong regulatory interests are

sufficient to justify the reasonable restrictions at issue here. See Burdick, 504 U.S. at

434 (explaining Anderson as holding that “when a state election law provision

imposed only ‘reasonable, nondiscriminatory restrictions’” then “‘the State’s

important regulatory interests are generally sufficient to justify’ the restrictions”);

Libertarian, 710 F.2d at 793 (noting that under Burdick, a “state’s important

regulatory interests are generally sufficient to justify reasonable restrictions”).

E. Other States’ Filing Fees and Petition Requirements

16
After Libertarian, this Court held it was unconstitutional for Florida categorically to
exclude minor parties from the waiver of the verification fee that was available to indigent major
party candidates. Fulani v. Krivanek, 973 F.2d 1539. 1547 (1992). However, Green sought
ballot access in a major party primary and thus the charges were waivable.

16
 Green argues at length that this Court must find Florida’s ballot access

requirements unconstitutional because most other states either charge fees that are less

than Florida’s or require fewer signatures for petitions. We disagree. There is a range

of fees and signature requirements that are constitutional, and the Florida legislature

is free to choose its ballot access requirements from that constitutional spectrum. The

fact that Florida may be at the high end of that range does not make its ballot access

restrictions unconstitutional. The shortcomings of such a comparative approach were

recognized in Libertarian:

First of all, the argument that Florida's 3% requirement must be stricken
as unconstitutionally burdensome because a majority of states protect
interests similar to Florida's by imposing a lesser requirement is
unavailing. A court is no more free to impose the legislative judgments
of other states on a sister state than it is free to substitute its own
judgment for that of the state legislature.

710 F.2d at 793-94 (internal citations omitted). In this case, as in Libertarian, this

Court cannot impose the legislative judgments of sister states on Florida but instead

must determine whether Florida’s legislative judgment expressed in its ballot access

requirements passes constitutional muster. It does.

III. CONCLUSION

We conclude that Florida’s qualifying fee of seven and a half percent in 1996

and six percent in 1998 and alternative signature petition for ballot access for

Congressional offices, are reasonable, nondiscriminatory restrictions, further

17
compelling state interests, and do not unduly burden Green’s constitutional rights.

Therefore, the district court’s entry of judgment for Defendant Secretary of State is

AFFIRMED.

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