[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 17, 2004
No. 03-14349
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-02721-CV-CAP-1
E. RANDEL T. OSBURN, LINDA DUBOSE,
BRENDA LOWE CLEMONS, DOROTHY PERRY,
WENDELL MUHAMMAD,
Plaintiffs-Appellants,
versus
CATHY COX, Secretary of State of Georgia,
LINDA LATIMORE , Dekalb County Elections
Supervisor, LYNN LEDFORD, Gwinnett County
Elections Supervisor, GEORGIA DEMOCRATIC
PARTY, STATE OF GEORGIA, et al.
Defendants-Appellees,
DENISE MAJETTE, et al.,
Defendants.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(May 17, 2004)
Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and BUCKLEW*,
District Judge.
BUCKLEW, District Judge:
On August 20, 2002, the only two individuals listed on the ballot in the
Democratic Primary election for the United States Congress in the Fourth District
of Georgia, which spans Dekalb and Gwinnett Counties, were Denise Majette and
incumbent Congresswoman Cynthia McKinney, both of whom are African-
American women. Majette defeated incumbent Congresswoman McKinney by
over 15,000 votes. On November 5, 2002, Majette won the general election and a
seat in the United States Congress.
Five registered voters from the Fourth Congressional District of Georgia
who voted in the Democratic Primary filed a complaint in the district court raising
various challenges to Georgia’s primary election system. Georgia’s primary
election system does not require voters to register by party affiliation. Once
registered to vote, a voter may choose in which political party’s primary to vote on
the day of the election by requesting the appropriate ballot. In other words, a
Republican voter can lawfully vote in a Democratic primary and vice versa.
Furthermore, that same Republican voter could vote in the Republican Party’s
________________________
* Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
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Primary in the next election. In this challenge to the Georgia “open primary,” as
this form of primary election is called, the Plaintiffs originally named as
Defendants the Secretary of State of Georgia, DeKalb County Elections
Supervisor, Gwinnett County Elections Supervisor, the Georgia Democratic Party,
the Georgia Republican Party, the DeKalb County Republican Party, and
Congresswoman Majette.
Most of the Defendants moved to dismiss the complaint. Prior to the district
court ruling on the motions to dismiss, the Plaintiffs voluntarily dismissed the
Georgia Republican Party, the DeKalb County Republican Party and
Congresswoman Majette from the case and moved to amend their complaint. The
Plaintiffs sought to amend the complaint to restate their claims and to add the State
of Georgia, Governor of the State of Georgia, DeKalb County Board of Elections
and Registration, and Gwinnett County Board of Elections and Registration as
Defendants. The district court granted the Plaintiffs’ motion to amend, and all
Defendants except Defendants DeKalb County Supervisor of Elections and
DeKalb County Board of Elections and Registration (collectively “DeKalb
Defendants”) then moved to dismiss the amended complaint.
The gravamen of the Plaintiffs’ amended complaint was that the Georgia and
DeKalb County Republican party members conceived a plan to run a candidate
(Majette) in the Democratic Primary, funded that candidate, and then encouraged
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Republican voters to crossover and vote for that candidate. The amended
complaint alleged that, as a result, the preferred candidate of Democratic voters,
McKinney, was defeated by the vote of the Republicans who crossed over and
voted in the Democratic primary. Plaintiffs alleged that the crossover voting of the
Republicans impermissibly diminished and interfered with the voting strength of
African-American voters in the Fourth Congressional District on account of race.
The amended complaint set forth three separate causes of action: (1) that the
open primary violated Plaintiffs’ equal protection rights under the Fourteenth
Amendment and their rights under the Fifteenth Amendment, as protected by the
Civil Rights Act, 42 U.S.C. § 1983 (Count I); (2) that Georgia’s open primary
system violated the Plaintiffs’ associational rights under the First Amendment as
protected by the Civil Rights Act, 42 U.S.C. § 1983 (Count II); and (3) that the
open primary violated Plaintiffs’ rights under Section 2 of the Voting Rights Act,
42 U.S.C. § 1973 (Count III). Plaintiffs sought declaratory and injunctive relief in
their amended complaint. Specifically, Plaintiffs sought, among other remedies, to
have the results of the August 2002 Democratic Primary and the November 2002
General Election for the Fourth Congressional District declared void, to have
Georgia’s present open primary system declared violative of Section 2 of the
Voting Rights Act, and to have the use of the open primary in the Democratic
primaries in Fourth Congressional District of Georgia enjoined.
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On August 1, 2003, the district court issued an order, granting the motions to
dismiss and dismissing the case without prejudice against all of the Defendants,
and entered judgment for the Defendants.1 The district court determined that the
Plaintiffs had no standing to raise a First Amendment claim and had presented no
facts sufficient to support any showing of violations of either their Fourteenth or
Fifteenth Amendment rights. The court rejected the Plaintiffs’ Voting Rights Act
claim as well, finding that the Plaintiffs’ allegations were insufficient to state a
claim for denial or abridgement of the right to vote. Plaintiffs now appeal.
I.
Plaintiffs allege that Georgia’s open primary system infringed upon their
First Amendment right of association.2 Plaintiffs argue that by having a primary
system in which all voters, regardless of personal political affiliation are permitted
to vote in the Democratic Primary in the Fourth Congressional District, the State of
1
Although the DeKalb Defendants did not file a motion to dismiss, the district court noted
that the DeKalb Defendants raised the defense of failure to state a claim in their answer and sua
sponte granted dismissal of the action as against the DeKalb Defendants because the district
court found that the amended complaint failed to state a claim as a matter of law.
2
The First Amendment to the U.S. Constitution provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
U.S. CONST . amend. I. The Supreme Court has recognized “as implicit in the right to engage in
activities protected by the First Amendment a corresponding right to associate with others in
pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”
Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S. Ct. 3244, 3252 (1984).
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Georgia has interfered with the right of the Plaintiffs and other Democratic voters
to choose the nominees of their political party.
The district court interpreted the Supreme Court’s decision in California
Democratic Party v. Jones, 530 U.S. 567, 120 S. Ct. 2402 (2000),3 to hold that the
standing to challenge a state’s regulation of a political party’s primary belongs
only to the party itself, and, therefore, the Plaintiffs in this case lacked standing to
bring their First Amendment right of association claim. Plaintiffs argue that the
Supreme Court in Jones does not hold that the standing to bring a right of
association claim belongs solely to the political party. Plaintiffs assert that the
Supreme Court has not held, nor even implied, that individuals have no First
Amendment associational rights concurrent with the political parties.
Although the Supreme Court has not explicitly said that only the party
proper, and not individual members of the party, may challenge a state’s regulation
of a political party’s primary, the case law points toward such a result. In
Democratic Party of the United States v. Wisconsin, 450 U.S. 107, 101 S. Ct. 1010
(1981), the Supreme Court upheld a challenge by the national Democratic Party to
Wisconsin’s election laws. The election laws at issue essentially forced the
3
The Supreme Court in Jones concluded that California’s adoption of a blanket primary,
which permitted all voters to vote in the primary for any candidate regardless of the candidate’s
political affiliation, against the wishes of the state’s political parties, was violative of the
associational rights of the political parties. Jones, 530 U.S. at 586, 120 S. Ct. at 2414.
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Democratic Party to seat at their conventions delegates chosen in state selection
processes that did not conform to the party’s national charter limiting participation
in choosing Democratic delegates to members of the Democratic Party. Id. at 109-
11, 101 S. Ct. at 1012-14. The Supreme Court held that the Wisconsin election
laws unconstitutionally infringed on the Democratic Party’s right “to define their
associational rights by limiting those who could participate in the processes leading
to the selection of delegates to their National Convention.” Id. at 122, 101 S. Ct. at
1019.
In Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S. Ct.
544 (1986), the Supreme Court examined a challenge by the Republican Party of
Connecticut to Connecticut’s closed primary system, in which the Republican
Party was not allowed to invite independent voters (i.e., voters not affiliated with
any political party) to participate in the Republican primary and to help choose the
Republican candidate. The Court held that the First Amendment protects a party’s
right to invite independent voters to participate in the primary. Id. at 224, 107 S.
Ct. at 554.
While these cases have upheld a political party’s right to both expand and
limit the persons that the party wishes to include in its primary elections, it was the
political party in each case that was entitled to decide who would be involved in
the decision making process, not individual members of the party. In fact, there
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are no cases directly on point, i.e., no cases in which individual plaintiffs alone
have been found to be entitled to such rights.
Instead, the case law weighs against an individual’s right to assert such a
claim and is buttressed by the fact that the relief that Plaintiffs seek, i.e., to limit
the voters who could participate in a Democratic primary to those who Plaintiffs
consider to be “Democratic voters,” would likely be held unconstitutional if
challenged by the state political party. The Supreme Court in Tashjian held that a
state may not limit who a party may invite to participate in its primary election. Id.
at 225, 107 S. Ct. at 554. Therefore, the remedy sought by Plaintiffs imposing
such a limit on the Democratic Party of Georgia would likely be unconstitutional.
See id. Accordingly, this Court finds that the Plaintiffs lack standing to assert their
First Amendment claim.
II.
Plaintiffs’ amended complaint alleged that the State of Georgia’s adoption of
the open primary system was done intentionally and for the purpose of
discriminating against African-American voters, whose membership includes the
Plaintiffs. The district court found that the Plaintiffs had not presented facts
sufficient to support any showing of violations of either their Fourteenth or
Fifteenth Amendment rights.
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To establish a Fourteenth Amendment claim, the Plaintiffs must not only
plead that they lack the equal opportunity to participate in the political process, but
must also demonstrate that this inequality results from the open primary system
and that a racially discriminatory purpose underlies that system. See Johnson v.
DeSoto, 204 F.3d 1335, 1345 (11th Cir. 2000) (citing Lucas v. Townsend, 967
F.2d 549, 551 (11th Cir. 1992)).
In conjunction with their Fourteenth Amendment claim, Plaintiffs also raise
a claim under the Fifteenth Amendment4 to the U.S. Constitution. The Supreme
Court has recognized that the Fifteenth Amendment protects the right to register
and to vote, but it has never held or even suggested that vote dilution violates the
Fifteenth Amendment. Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 334 n.3,
120 S. Ct. 866, 875 n.3 (2000).
Plaintiffs do not allege that they were prevented from registering to vote or
from voting at all. Instead they allege that they were outvoted in relation to
selecting the candidate of their preference. The claim does not identify the
violation of any fundamental right in relation to voting. On its face, the amended
complaint fails to state a claim for either a Fourteenth or Fifteenth Amendment
4
The Fifteenth Amendment to the U.S. Constitution provides:
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account
of race, color or previous condition of servitude.
U.S. CONST . amend. XV, § 1.
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violation. See GJR Investments, Inc. v. County of Escambia, 132 F. 3d 1359, 1367
(11th Cir. 1998)(requiring that a § 1983 plaintiff allege with some specificity the
facts that make out its claim); see also Gonzalez v. Reno, 325 F.3d 1228, 1235
(11th Cir. 2003)(discussing heightened pleading requirement for civil rights cases).
III.
Plaintiffs argue that Georgia’s open primary system has the purpose and
effect of denying or abridging their vote on account of race in violation of Section
2 of the Voting Rights Act. Plaintiffs contend that the amended complaint clearly
states that black voters are politically cohesive and that white voters voted in a bloc
in the primary to defeat the black voters’ preferred candidate.
The district court rejected this claim finding that the Plaintiffs’ allegations
failed to state a claim for denial or abridgement of the right to vote. The district
court also noted that both former Congresswoman McKinney and incumbent
Congresswoman Majette are African-American and that factor was one that belied
the Plaintiffs’ legal claims of discrimination in the electoral system.
Section 2 of the Voting Rights Act states, in relevant part, that “[n]o voting
qualification or prerequisite to voting or standard, practice, or procedure shall be
imposed or applied by any State or political subdivision in a manner which results
in a denial or abridgement of the right of any citizen of the United States to vote on
account of race or color.” 42 U.S.C. § 1973(a).
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To establish a violation of Section 2, this Court has held that:
[A] plaintiff must prove invidious discrimination in order to establish
a violation of [S]ection 2 of the Voting Rights Act. Specifically, the
plaintiff may prove either: (1) discriminatory intent on the part of
legislators or other officials responsible for creating or maintaining
the challenged system; or (2) objective factors that, under the totality
of the circumstances, show the exclusion of the minority group from
meaningful access to the political process due to the interaction of
racial bias in the community with the challenged voting scheme.
Nipper v. Smith, 39 F.3d 1494, 1524 (11th Cir. 1994); see also Brooks v. Miller,
158 F.3d 1230, 1237-38 (11th Cir. 1998). It is Plaintiffs’ burden to show on the
face of their amended complaint either a discriminatory purpose or effect
demonstrating that members of the minority community contained within the
Fourth Congressional District are unable to equally participate in the political
processes leading to the nomination or election of a candidate of choice. Plaintiffs
allege no discriminatory purpose, but instead claim there is a discriminatory effect
in the operation of the open primary system.
A violation of Section 2 is established only if, based on the totality of the
circumstances, minority plaintiffs can prove that they “have less opportunity than
other members of the electorate to participate in the political process and to elect
representatives of their choice.” 42 U.S.C. § 1973(b); see also Chisom v. Roemer,
501 U.S. 380, 397, 111 S. Ct. 2354, 2365 (1991)(“the inability to elect
representatives of their choice is not sufficient to establish a [Section 2] violation
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unless, under the totality of the circumstances, it can also be said that the members
of the protected class have less opportunity to participate in the political process”).
The facts alleged by Plaintiffs, i.e., that Republican voters crossed-over and
voted for Majette rather than McKinney, do not demonstrate a violation of Section
2 of the Voting Rights Act. The Plaintiffs have not alleged facts to support a claim
that the minority group has been excluded from meaningful access to the political
process due to the interaction of racial bias in the community with the challenged
voting system. See Nipper, 39 F.3d at 1524.
AFFIRMED.
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