concurring specially:
Although I concur in the result reached by the majority of the panel, I write separately to note my disagreement with the majority’s apparent holding that a ballot cannot be misleading as a matter of law if it adequately identifies the particular proposed amendment to be voted on, even if the ballot language affirmatively misrepresents the effect of the proposed amendment. Judge Edmondson’s opinion cites Burger v. Judge, 364 F.Supp. 504, 511 n. 16 (D.Mont.), aff'd, 414 U.S. 1058, 94 S.Ct. 563, 38 L.Ed.2d 465 (1973), and Kohler v. Tugwell, 292 F.Supp. 978, 982 (E.D.La.1968), aff'd, 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969), for this proposition. Although I agree that these cases are relevant to the case at bar,1 neither Burger nor Kohler *1273involved a situation where the ballot proposal was rather simple, yet the ballot language affirmatively misrepresented that effect. In Burger, the dispute was whether the ballot misled voters as to the mechanics of the election, 364 F.Supp. at 508, and the Kohler case involved a very complex proposal which the court found could not possibly be adequately described on the ballot, 292 F.Supp. at 980.
In the case at bar, the ballot language incorrectly states that Amendment One would change the pre-Amendment One Constitution to (1) allow the General Assembly to authorize suits against the State and its officers, and (2) prescribe the circumstances in which officials may be held liable. Although Amendment One includes language related to these two proposals, the ballot text infers that the pre-Amendment One Constitution did not allow the General Assembly to waive sovereign and official immunity and did not prescribe the circumstances in which officials may be held liable. In fact, the pre-Amendment One Constitution, as interpreted by the Georgia courts, provided that (1) no sovereign immunity existed for contract actions, Ga. Const. Art. I, § 2, 119 (1983); (2) the State waived sovereign immunity for torts if the State had insured itself against the suit or if the General Assembly had expressly waived it, id.; and (3) the State waived sovereign and official immunity for torts if either the State or the official had purchased insurance for suits against the official, Martin v. Georgia Dept. of Public Safety, 257 Ga. 300, 357 S.E.2d 569, 572 (1987), cert. denied, 484 U.S. 998, 108 S.Ct. 685, 98 L.Ed.2d 638 (1988). Under Georgia common law, uninsured officials were immune from liability for discretionary acts unless done with actual malice and ministerial acts unless done with negligence or malice. Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878, 880 (1980).2
Amendment One, therefore, alters the current Constitution by (1) removing the constitutional insurance waiver of sovereign immunity for torts; thereby reinstating full sovereign immunity for torts subject to waiver by the General Assembly, (2) deleting the constitutional insurance waiver of official immunity, and (3) establishing a floor of official immunity by providing that the General Assembly may not make officials liable for discretionary acts taken with a mental state less culpable than malice or for ministerial acts taken with a mental state less culpable than negligence.
Hence, although the ballot language indicated that Amendment One would establish (not preserve) in the General Assembly the power to waive sovereign and official immunity, Amendment One does not effect this purpose. Rather, Amendment One actually expands the General Assembly’s power to impose sovereign and official immunity, and decreases the General Assembly’s power to waive official immunity.
Initially, the State had no constitutional obligation to do any more than identify Amendment One as the subject of the election. Nevertheless, when a state undertakes to explain the effect of a ballot proposal, due process imposes an additional duty on that state not to deceive the voters. Georgia breached this duty in the case at bar. Therefore, I believe that the plaintiffs established that the ballot language was misleading as a matter of law.
I agree, however, with the majority that, in order to justify the radical step of federal court intervention in a state election, the plaintiffs must also show that the deception was material, i.e., that it affected the election. See Harris v. Conradi, 675 F.2d 1212, 1216 (11th Cir.1982) (unless plaintiff was deprived outright of an opportunity to vote, plaintiff must show state action “caused an impairment” of the right to vote). Because the majority finds that the ballot was not misleading as a matter of *1274law, it does not reach the merits of whether the deception was material. I believe that the plaintiffs have failed to establish materiality because their evidence consisted chiefly of two voter surveys which asked the excessively simple question of whether voters thought, based on the ballot language, Amendment One would make it easier or harder to sue the State and its officials. No one could know the answer to this question because it requires a prediction of what the General Assembly will do with its newly-defined powers.3 The plaintiffs should have gathered evidence regarding voters’ perception of the effect Amendment One will have on the scope of the General Assembly’s power to impose or waive sovereign and official immunity. This defect in the plaintiffs’ evidence precludes, as a matter of law, a finding that the plaintiffs established materiality. I therefore concur in the affirmance of the district court’s judgment.
. Indeed, because they were summarily affirmed by the Supreme Court, these cases represent binding precedent for "the most narrow *1273plausible rationale for the summary decision.” Hardwick v. Bowers, 760 F.2d 1202, 1208 (11th Cir.1985); rev’d on other grounds, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). For whatever reason, Judge Edmondson’s opinion fails to note this.
. This common law immunity was presumably waivable by the General Assembly. See Hennessy, 264 S.E.2d at 879.
. If the General Assembly desired to make it easier to sue the State and its officials, it could, pursuant to Amendment One, waive sovereign immunity entirely and official immunity only to the extent it was waived prior to Amendment One. However, the General Assembly could not pass an insurance waiver of official immunity like the one that existed before Amendment One. If, on the other hand, the General Assembly wished to make it more difficult to sue the State and its officials, it could, under Amendment One, preserve full sovereign immunity and enact full official immunity. Hence, after Amendment One, it could become easier or harder to sue the State, but it will definitely be more difficult to sue officials.