[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12176 MARCH 8, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 4:10-cv-0007-HLM
LAMAR GRIZZLE,
KELVIN SIMMONS,
Plaintiffs-Appellees,
versus
HONORABLE BRIAN KEMP,
in his official capacity as Secretary of State of Georgia
and Chairperson of the Georgia State Election Board,
Defendant-Appellant,
THE STATE ELECTION BOARD OF THE STATE OF GEORGIA, et al.
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 8, 2011)
Before TJOFLAT, ANDERSON and ALARCÓN,* Circuit Judges.
ALARCÓN, Circuit Judge:
In this appeal, we must determine whether the District Court erred in
applying the strict scrutiny standard in reviewing the Plaintiffs’ claims under the
First and Fourteenth Amendments in issuing a preliminarily injunction against the
Honorable Brian Kemp, the Secretary of State of Georgia (the “Secretary of
State”), in his official capacity, and the County Executive Committee of the
Bartow County Republican Party (the “Republican Party”), enjoining the
enforcement or application of the portion of Georgia Code Ann. § 20-2-51(c)(2)
(2009) that precludes relatives of certain employees of a school system from
serving as members of that district’s board of education. We must also decide
whether the District Court erred in holding that a case or controversy exists with
regard to the Secretary of State.
We reverse the order granting a preliminary injunction because we conclude
that the District Court erred in reviewing the Plaintiffs’ First and Fourteenth
Amendment claims under the strict scrutiny standard. As the Secretary of State is
the chairperson of the State Election Board and the State Election Board is charged
with enforcing Georgia’s election code under state law, we conclude that the
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
2
Secretary of State is a proper party in this action for injunctive and declaratory
relief pursuant to Ex Parte Young, 209 U.S. 123 (1908).
I
A
The facts in this matter are undisputed. Plaintiffs Lamar Grizzle and Kelvin
Simmons are both Georgia residents who served on school boards in their
respective communities at the time this action was filed. Grizzle is a member and
currently Chairman of the Board of Education of Bartow County, Georgia, a
position to which he was first elected in November 2002 and re-elected in 2006.2
Grizzle’s daughter is an assistant principal at Pine Log Elementary School, which
is located within the Bartow County school district.
Simmons was a member of the Board of Education of the City of Gainsville,
Georgia from 1991 through 2009. His wife is an assistant principal at Gainsville
Middle School. Although he intended to run for re-election in November 2009, he
was disqualified due to the passage of 2009 Georgia Laws 164 (“HB 251”).
2
In compliance with the District Court’s preliminary injunction in this matter, Grizzle
was permitted to qualify for the Republican primary during the fourth week of April 2010. He
was re-elected in November 2010.
3
HB 251 was enacted by the State of Georgia and went into effect on May 5,
2009. HB 251 amended Georgia Code Ann. § 20-2-51 by adding the following as
subsection (c)(2):
No person who has an immediate family member sitting
on a local board of education or serving as the local
school superintendent or as a principal, assistant
principal, or system administrative staff in the local
school system shall be eligible to serve as a member of
such local board of education. As used in this paragraph,
the term “immediate family member” means a spouse,
child, sibling, or parent or the spouse of a child, sibling,
or parent. This paragraph shall apply only to local board
of education members elected or appointed on or after
July 1, 2009. Nothing in this Code section shall affect
the employment of any person who is employed by a
local school system on or before July 1, 2009, or who is
employed by a local school system when an immediate
family member becomes a local board of education
member for that school system.
Ga. Code Ann. § 20-2-51(c)(2) (2009), amended by Act of May 25, 2010, 2010 Ga.
Laws 468.3
B
On January 11, 2009, the Plaintiffs filed an action in the District Court for
the Northern District of Georgia against the Honorable Brian Kemp, Secretary of
3
Plaintiffs in this litigation contest the version of Georgia Code Ann. § 20-2-51(c)(2)
amended by HB 251 but prior to the amendments of May 25, 2010. For ease, this opinion refers
to the statute at issue as “section 20-2-51(c)(2).”
4
State of Georgia, in his official capacity,4 the Election Board of the State of
Georgia,5 and the County Executive Committee of the Bartow County Republican
Party,6 alleging, inter alia, that the “nepotism provision” of section 20-2-51(c)(2),
as applied and on its face, violates the equal protection guarantee of the Fourteenth
Amendment. They additionally alleged that that provision violates their right of
free association, both as voters and as candidates for office, under the First
Amendment. Plaintiffs requested, inter alia, that the court declare section
20-2-51(c)(2) unconstitutional; that it grant a preliminary injunction against
enforcement of that section prior to the fourth week of April 2010, the deadline for
candidate qualification for party primary elections; and that the Court also grant a
permanent injunction against the section’s enforcement.
4
“There is created a state board to be known as the State Election Board, to be composed
of the Secretary of State, an elector to be elected by a majority vote of the Senate of the General
Assembly at its regular session held in each odd-numbered year, an elector to be elected by a
majority vote of the House of Representatives of the General Assembly at its regular session
held in each odd-numbered year, and a member of each political party to be nominated and
appointed in the manner provided in this Code section. . . .” Ga. Code Ann. § 21-2-30(a). “The
Secretary of State shall be the chairperson of the board. . . .” Id. at (b).
5
“The State Election Board is vested with the power to issue orders . . . directing
compliance with [Chapter 2 of the Georgia Code] or prohibiting the actual or threatened
commission of any conduct constituting a violation [of that Chapter] . . . .” Ga. Code Ann. §
21-2-33.1(a).
6
Under Georgia law, county executive committees of the respective political parties are
charged with certifying to the Secretary of State those candidates who have qualified for the
primary elections. Ga. Code Ann. § 21-2-154(a).
5
On January 30, 2010, Plaintiffs requested that the District Court enter an
Order to Show Cause scheduling a hearing for a preliminary injunction. The Court
denied their request on January 21, 2010. On the same day, the Plaintiffs filed a
motion for a preliminary injunction and requested a hearing on their motion prior
to the candidate qualifying period of April 26 to 30, 2010.
The Republican Party, on February 5, 2010, filed a motion to be excused
from the case. It indicated that it would “abide by the statute as written or by any
injunction entered by the Court.” Mot. to be Excused at 2. The District Court
granted the Republican Party’s motion on February 12, 2010.
On February 12, 2010, the Secretary of State and the State Election Board
jointly filed a motion to dismiss them from this action. In an order issued on
March 15, 2010, the District Court granted the State Election Board’s motion to be
dismissed from this action, and denied the motion to dismiss the Secretary of State
as a party.
The Secretary of State filed an answer to the complaint on March 29, 2010.
On April 21, 2010, the District Court issued an Order granting in part and denying
in part Plaintiffs’ motion for a preliminary injunction. The District Court
preliminarily enjoined the Secretary of State and the Republican Party “from
enforcing or applying the portion of [Georgia Code Ann.] § 20-2-51(c)(2) that
6
precludes relatives of certain employees of a school system from running for
election to the school board governing that system, and from precluding Plaintiff
Grizzle or any other otherwise qualified individual from running for election to a
school board position within Georgia.” Id. at 60-61. It denied relief as to
Plaintiffs’ other claims, not pertinent to this appeal, and again rejected the
Secretary of State’s contention that he is not a proper party in this action.
The Secretary of State timely appealed from the District Court’s April 21
order. This Court has jurisdiction over this interlocutory appeal pursuant to 28
U.S.C. § 1292(a)(1).
II
The Secretary of State contends the District Court erred in holding that he is
a proper party in this action, and, accordingly, in entering a preliminary injunction
against him. He additionally argues that the District Court erred in applying strict
scrutiny to the Plaintiffs’ claims under the First and Fourteenth Amendments in its
assessment of the Plaintiffs’ Motion for Preliminary Injunction. Because the case-
or-controversy requirement is jurisdictional in nature, we address that issue first.
A
The Secretary of State asserts that, because he cannot qualify, challenge or
certify candidates for local boards of education under Georgia’s election code, he
7
is not a proper party in this lawsuit. He maintains that, under Georgia’s election
code, in partisan elections such as those for local boards of education,7 a
candidate’s party is charged with determining the qualifications of aspirants for
office. Ga. Code Ann. § 21-2-153.1(a).8 Challenges to candidates to local office
may be mounted only by electors or the elections superintendent. § 21-2-6(b).9
The elections superintendent then certifies the election results to the Secretary of
State as well as to the State School Superintendent. § 20-2-53.10
The Secretary of State contends that, “[b]ecause he must accept, and cannot
alter, the qualifications and certification of Grizzle and Simmons [under Georgia’s
7
The court accepts the parties’ concession that elections to local boards of education in
Georgia are partisan. See Appellees’ Br. 6 (stating that the Bartow County school board election
is partisan); see Appellant’s Br. 4 (“The facts of this case . . . are not in dispute.”).
8
“Unless otherwise provided by law, all candidates for party nomination in a municipal
primary shall qualify as such candidates in accordance with the rules of their party.” § 21-2-
153.1(a).
9
“The superintendent upon his or her own motion may challenge the qualifications of any
[county or municipal] candidate [certified by the county or municipal executive committee,
respectively, of a political party or who files a notice of candidacy] at any time prior to the
election of such candidate. Within two weeks after the deadline for qualifying, any elector who
is eligible to vote for any such candidate may challenge the qualifications of the candidate by
filing a written complaint with the superintendent giving the reasons why the elector believes the
candidate is not qualified to seek and hold the public office for which the candidate is
offering. . . .” § 21-2-6(b).
10
“[I]t shall be the duty of the elections superintendent of each system or other political
subdivision to transmit to the Secretary of State and to the State School Superintendent a
certified statement of the election of members of a local board of education. . . .” § 20-2-53.
8
election code], he cannot be sued over a statute designed to prevent such
occurrence.” Appellant’s Br. 11.
Pursuant to the Eleventh Amendment, a state may not be sued in federal
court unless it waives its sovereign immunity or its immunity is abrogated by an
act of Congress under section 5 of the Fourteenth Amendment. Kimel v. Florida
Bd. of Regents, 528 U.S. 62 (2000); Seminole Tribe of Florida v. Florida, 517 U.S.
44, 55-57 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). Under the doctrine
enunciated in Ex Parte Young, 209 U.S. 123, however, a suit alleging a violation of
the federal constitution against a state official in his official capacity for injunctive
relief on a prospective basis is not a suit against the state, and, accordingly, does
not violate the Eleventh Amendment. Id. at 168; Frew ex rel. Frew v. Hawkins,
540 U.S. 431, 437 (2004).
A state official is subject to suit in his official capacity when his office
imbues him with the responsibility to enforce the law or laws at issue in the suit.
See Young, 209 U.S. at 161. In Ex Parte Young, the Supreme Court held that, as
the duties of the attorney general of Minnesota under both common law and statute
included “the right and the power to enforce the statutes of the state, including
. . . the act in question,” the attorney general was a proper party. Id.
9
In this matter, the Secretary of State is, by statute, a member and the
chairperson of the State Election Board. Ga. Code Ann. § 21-2-30(a) & (d).
Under Georgia law, “[t]he State Election Board is vested with the power to issue
orders . . . directing compliance with [Chapter 2 of Georgia’s election code] or
prohibiting the actual or threatened commission of any conduct constituting a
violation [of Chapter 2] . . . .” § 21-2-33.1(a). Partisan primary elections,
including those for local boards of education, fall within Chapter 2 of the state
election code. See Ga. Stat. tit. 21, ch. 2 (governing “Elections and Primaries
Generally”).
Plaintiffs here seek prospective injunctive relief against the Secretary of
State in his official capacity. Because their suit falls within the Ex Parte Young
exception, the Eleventh Amendment does not bar their suit. Although the
Secretary of State cannot directly qualify or challenge candidates for local boards
of education or certify the results of those elections, as a member and the
chairperson of the State Election Board, he has both the power and the duty to
ensure that the entities charged with those responsibilities comply with Georgia’s
election code in carrying out those tasks. Pursuant to Ex Parte Young, “[h]is
power by virtue of his office sufficiently connect[s] him with the duty of
enforcement to make him a proper party to a suit of the nature of the one now
10
before” this Court. 209 U.S. at 161. The District Court therefore did not err in
holding that the Secretary of State is a proper party in this action.
B
1
The Secretary of State also contends the District Court erred in determining
that the strict scrutiny standard applies to the Plaintiffs’ claims under the First and
Fourteenth Amendments. He argues that, due to this error, the issuance of a
preliminary injunction was improper.
“Although we review the district court’s entry of a preliminary injunction
under a deferential abuse-of-discretion standard, the legal conclusions upon which
an injunction is based are subject to more exacting de novo review.” Bank of Am.
Nat. Ass’n v. Colonial Bank, 604 F.3d 1239, 1242-43 (11th Cir. 2010).
The moving party must demonstrate the following in order for the District
Court to grant its motion for a preliminary injunction: “(1) a substantial likelihood
of success on the merits of the underlying case, (2) the movant will suffer
irreparable harm in the absence of an injunction, (3) the harm suffered by the
movant in the absence of an injunction would exceed the harm suffered by the
opposing party if the injunction issued, and (4) an injunction would not disserve
the public interest.” N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211,
11
1217 (11th Cir. 2008). The Secretary of State maintains that, because the District
Court applied the incorrect standard of review to Plaintiffs’ constitutional claims,
Plaintiffs have not demonstrated a likelihood of success on the merits. Our inquiry
thus begins and ends with this first prong of the test.
2
In its analysis of the standard it should apply in determining whether section
20-2-51(c)(2) violates the Equal Protection Clause of the Fourteenth Amendment,
the District Court stated that “the right to seek and hold public office is not a
fundamental right protected by the Constitution.” April 21 Order at 34 (internal
citations omitted). Nonetheless, it found that section 20-2-51(c)(2)
entirely precludes Plaintiffs from appearing on the ballot
as candidates for their respective local school boards,
and, consequently, its effect on Plaintiffs is extreme.
Moreover, it is extremely likely that [Georgia Code Ann.
§ 20-2-51(c)(2)] will severely burden the rights of
numerous Georgia voters, as it likely will bar individuals
across the State from running as candidates for their local
school boards, thereby depriving voters of the right to
vote for the candidates of their choice.
Id. at 37-38. Holding that section 20-2-51(c)(2) thus severely impacted “ballot
access” and “the right of association,” the District Court applied strict scrutiny to
Plaintiffs’ claims. Id.
12
The District Court assumed, for purposes of its review, that the Secretary of
State’s proposed interest–the prevention of nepotism–is a compelling state interest.
It stated that
the statute . . . is not narrowly tailored to serve that
purpose. Specifically, the statute is overly broad, because
it simply excludes certain relatives from office, rather
than addressing the real problem of nepotism–possible
biased decisions of school board members. The statute,
by the same token, is also too narrow, because it fails to
address other family relationships that might cause biased
decisions on the part of a school board member.
April 21 Order at 39. Additionally, the District Court noted,
Georgia already has statutes in place that address many
nepotism concerns, including: (1) [Georgia Code Ann.]
§ 20-2-58.1, which precludes school board members
from voting on employment decisions for relatives; (2)
[Georgia Code Ann.] § 45-10-3, which sets forth a code
of ethics for school boards members and includes a
provision that members must “[n]ever discriminate by the
dispensing of special favors or privileges to anyone,
whether or not for remuneration;” and (3) [Georgia Code
Ann.] § 45-10-4, which permits the Governor to remove
an official who breaches the provisions of [Georgia Code
Ann.] § 45-10-3.
Id. at 39-40 (quoting Ga. Code Ann. § 45-10-3).
The District Court stated that, “[a]pplying strict scrutiny, [Georgia Code
Ann.] § 20-2-51(c)(2) fails to pass muster.” Id. at 38. It thus held that the
Plaintiffs had shown a substantial likelihood of success on the merits at trial and
13
granted their motion for a preliminary injunction.
In support of the District Court’s conclusion, Plaintiffs maintain that
the nepotism provision violates their right to equal protection under the Fourteenth
Amendment because it treats them differently from similarly situated persons,
namely, individuals desiring to run for the school board who do not have family
members employed in certain positions in the relevant school system. With regard
to their claims under the First Amendment, Plaintiffs assert that the provision
violates their right to free association because it affects their right to seek office as
school board members as well as the right of voters to vote for them. They argue
that the District Court did not err in applying strict scrutiny because section
20-2-51(c)(2) completely bars them from running for office, and thus constitutes a
“severe restriction” on their right to be candidates as well as on voters’ ballot
access rights. They additionally note that the restriction is imposed based on
matters over which they have no control.
The Secretary of State contends that “the district court erred in holding
[Georgia Code Ann.] § 20-2-51(c)(2) unconstitutional [because] [t]here is no
severe burden on Grizzle’s and Simmons [sic] First and Fourteenth Amendment
[r]ights.” Appellant’s Br. 24. He argues that this case is analogous to those in
which courts have held that statutes requiring an individual to resign from office in
14
order to appear on the ballot for a different office (“resign-to-run” statutes) warrant
only rational basis review.
3
The Supreme Court has not “attached such fundamental status to candidacy
as to invoke a rigorous standard of review.” Bullock v. Carter, 405 U.S. 134, 142-
43 (1972). Recognizing, however, that the right to vote is fundamental, the Court
has noted that “the rights of voters and the rights of candidates do not lend
themselves to neat separation; laws that affect candidates always have at least some
theoretical, correlative effect on voters.” Id. at 143. But “[n]ot all restrictions
imposed by the States on candidates’ eligibility for the ballot impose
constitutionally suspect burdens on voters’ rights to associate or to choose among
candidates.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also Bullock,
405 U.S. at 143 (“not every limitation or incidental burden on the exercise of
voting rights is subject to a stringent standard of review.”). A restriction on
candidacy implicates a fundamental right only if “the challenged restriction
unfairly or unnecessarily burdens the ‘availability of political opportunity.’”
Anderson, 460 U.S. at 793 (quoting Clements v. Fashing, 457 U.S. 957, 964 (1982)
(plurality opinion)); see also Morial v. Judiciary Comm’n of Louisiana, 565 F.2d
295, 301 (11th Cir. 1977) (Candidacy is “an important, if not constitutionally
15
‘fundamental,’ right.”).
In reviewing challenges to restrictions on candidacy and ballot access under
the First and Fourteenth Amendments, we “must first consider ‘the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth
Amendments that the [candidate] seeks to vindicate.’” Swanson v. Worley, 490
F.3d 894, 902 (11th Cir. 2007) (quoting Anderson, 460 U.S. at 789). When the
plaintiffs’ rights are subject to “severe” restrictions, those restrictions survive only
if they are “‘narrowly tailored and advance[] a compelling state interest.’” Id. at
903 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997));
see Burdick v. Takushi, 504 U.S. 428, 434 (1992) (“severe” regulation must be
“‘narrowly drawn to advance a state interest of compelling importance.’”) (quoting
Norman v. Reed, 502 U.S. 279, 289 (1992)). By contrast, “a State’s important
regulatory interests” are generally sufficient to justify a state election law which
burdens the First and Fourteenth Amendment rights of candidates and voters with
restrictions which are “reasonable” and “nondiscriminatory.” Swanson, 490 F.3d
at 903 (citing Burdick, 504 U.S. at 434). “Lesser burdens . . . trigger less exacting
review . . . .” Id. Thus, in order to assess whether, on the current record, strict
scrutiny applies to the Plaintiffs’ claims under the First and Fourteenth
Amendments, we must determine whether the restriction imposed by section
16
20-2-51(c)(2) is “severe” based on the “character and magnitude” of Plaintiffs’
asserted harm.
In Morial v. Judiciary Commission of Louisiana, 565 F.2d 295 (5th Cir.
1977),11 the former Fifth Circuit considered whether a Louisiana statute and canon
of judicial conduct requiring judges to resign from their current office before
running for a non-judicial position comported with the plaintiffs’ rights to free
speech and freedom of association under the First Amendment and their right to
equal protection of the laws under the Fourteenth Amendment. Id. at 299-307.
The Fifth Circuit stated that, although Judge Morial had a “substantial” First
Amendment interest in becoming a candidate, “in order to judge the substantiality
of the impairment,” that interest must be weighed in light of his interests left
unaffected by the Louisiana statute. Id. at 301. The Court noted that
Louisiana’s resign-to-run requirement does not burden
[Judge Morial’s] right to vote for the candidate of his
choice or to make statements regarding his private
opinions on public issues outside a campaign context; nor
does it penalize his belief in any particular idea. These
are core first amendment values.
Id.; see also Clements, 457 U.S. at 972 (no first amendment violation where state
constitutional provisions “in no way restrict appellees’ ability to participate in the
11
Decisions of the Fifth Circuit rendered prior to October 1, 1981 are binding precedent
of this Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).
17
political campaigns of third parties. They limit neither political contributions nor
expenditures. They do not preclude appellees from holding an office in a political
party. . . . [A]ppellees may distribute campaign literature and may make speeches
on behalf of a candidate.”) The Fifth Circuit also stated that “[t]he impact of the
resign-to-run requirement upon voters is even less substantial[,]” as it did not
exclude candidates based on their viewpoint, or their membership in an identifiable
group, such as the poor or minority parties. Morial, 565 F.2d at 301-02 (citations
omitted).
In addressing the level of scrutiny appropriate to review the plaintiffs’
challenge to the Louisiana statute under the First Amendment, the Court stated in
Morial,
The impairment of the plaintiffs’ interests in free
expression and political association stemming from
enforcement of the resignation rule is thus not
sufficiently grievous to require the strictest constitutional
scrutiny. Neither is the impairment insubstantial or
innocuous; a level of scrutiny which guarded against only
those measures offending logic would be a gratuitous
insult to the seriousness of the interests involved in
becoming or supporting a candidate for public office.
Instead, we should employ a level of scrutiny which
requires the state to show a reasonable necessity for
requiring judges to resign before becoming candidates for
elective judicial office.
Id. at 302 (internal citations omitted).
18
The Supreme Court considered the equal protection question at length in
Clements v. Fashing, 457 U.S. 957 (1982). The plaintiffs in Clements brought
both First Amendment and Fourteenth Amendment challenges to Article III, § 19
and Article XVI, § 65 of the Texas Constitution. Id. Article III, § 19 stated that
[n]o judge of any court, Secretary of State, Attorney
General, clerk of any court of record, or any person
holding a lucrative office under the United States, or this
State, or any foreign government shall during the term
for which he is elected or appointed, be eligible to the
[state] Legislature.
Id. at 960. Article XVI, § 65 provided for the automatic resignation of certain state
officers upon the announcement of their candidacy “in any General, Special or
Primary Election, for any office of profit or trust under the laws of this State or the
United States other than the office then held, at any time when the unexpired term
of the office then held shall exceed one (1) year[.]” Id. The Court noted that it had
“departed from traditional equal protection analysis” in cases involving
classifications based on economic status and in those burdening emerging, smaller,
or independent political parties or candidates. Id. at 964-65 (citations omitted).
The Supreme Court also stated in Clements that the concerns underlying
those cases–filing fees, invidious discrimination, and discrimination based on
viewpoint or political affiliation–did not apply to the matter before it. Id. at 964.
Addressing Article III, § 19, it held that the classification was not invidious,
19
arbitrary, or irrational and that the burden imposed on a Justice of the Peace by that
section–effectively, a maximum two-year waiting period between the end of his
current term in office and announcing his candidacy for the state legislature–was
de minimis. Id. at 967 (citing Storer v. Brown, 415 U.S. 724, 733-37 (1974) (no
constitutional violation where individual was disqualified from running in party
primary if he had been registered or affiliated with a different party within the
preceding twelve months)). “[T]his sort of insignificant interference with access to
the ballot need only rest on a rational predicate in order to survive a challenge
under the Equal Protection Clause.” Id. at 968.
The Supreme Court further stated in Clements that, pursuant to Broadrick v.
Oklahoma, 413 U.S. 601, 607 (1973), the singling out of particular officeholders
for this restriction did not offended equal protection. Id. at 969. “‘[T]he
legislature must have some leeway in determining which of its employment
positions require restrictions on partisan political activities and which may be left
unregulated.’” Id. (quoting Broadrick, 413 U.S. at 607 n.5.). The state may,
consistent with equal protection, regulate “one step at a time, addressing itself to
the phase of the problem which seems most acute.” Id. at 970.
The Supreme Court likewise reviewed the classification behind Article XVI,
§ 65, the “resign-to-run” provision, for a “rational predicate.” Id. Noting that there
20
was no apparent “invidious purpose” behind the provision, it held that the
legislature’s “one step at a time” approach was permissible under equal protection.
Id. at 970-71.
Reviewing the plaintiffs’ First Amendment claims, the Supreme Court held
that they failed for the same reasons the plaintiffs’ equal protection claims
failed–because the burden on their interests in candidacy was de minimis rather
than “severe.” Id. It remarked that those claims additionally failed due to the
limited nature of the challenged restrictions on political activity. Id.
The Second Circuit, too, has confronted the constitutionality of “resign-to-
run” provisions, in Fletcher v. Marino, 882 F.2d 605 (2d Cir. 1989). In that case,
plaintiffs, who were members of a community school board, argued that a New
York statute making current community school board members ineligible for
employment by any community school board or city board, and making certain
public officials ineligible for membership on community school boards violated,
inter alia, their right to freedom of association under the First Amendment. Id. at
608-10. The Second Circuit applied a lesser standard of scrutiny in its review of
the plaintiffs’ claims. See id. at 613. The law, it stated, “does no more than
prohibit certain municipal employees, political party office holders and elected
officials from being community school board members. It does not stop anyone
21
from running for any office.” Id.
The Second Circuit in Fletcher also evaluated the plaintiffs’ First
Amendment claim as to infringement on the voters’ right to choose a candidate
under a lesser standard of review. Id. at 614. The New York legislature, it held,
“has not prevented people with certain ideas from becoming candidates. It has not
prevented people from certain protected backgrounds from becoming candidates.
It has only prevented people holding certain jobs or certain party leadership
positions from becoming members of community school boards.” Id.
The Plaintiffs here attempt to distinguish this case from Morial, Clements,
and Fletcher on two bases. We are not persuaded.
Plaintiffs first maintain that section 20-2-51(c)(2) “enacts a total ban from
elective office for the thousands of close relatives of existing school board
members, superintendents, principles [sic], assistant principals and ‘system
administrative staff.’” Appellees’ Br. 21. Plaintiffs overstate the point. Section
20-2-51(c)(2) prohibits them, and like individuals, only from running for the
school board governing the system in which certain family members are employed.
Plaintiffs may run for any other elected office; they may vote, distribute campaign
literature, voice their political opinions, and participate in and hold office in their
political party of choice. Under the balancing test articulated by this Court in
22
Swanson, the Plaintiffs’ injury under the First Amendment is not so “severe” as to
require strict scrutiny.
Additionally, Plaintiffs suggest that the type of restriction at issue in this
matter–nepotism–warrants closer scrutiny than that afforded in the “resign-to-run”
cases. They argue that the plaintiffs in those cases were faced with a choice as to
whether to step down from their current posts in order to run for office under the
challenged law. Here, Plaintiffs have no control over their eligibility as candidates
for the desired school boards; their eligibility is entirely based on the employment
of their “immediate family member[s].” See Ga. Code Ann. § 20-2-51(c)(2).
This Court had occasion to consider the standard of review applicable to
anti-nepotism provisions specifically in Parks v. City of Warner Robins, 43 F.3d
609 (11th Cir. 1995). There, the plaintiff argued that a Georgia statute which
prohibited a city employee from working in the same department as a relative in a
supervisory position violated her right of intimate association under the First
Amendment, her substantive due process right to marry under the Fourteenth
Amendment, and her right to equal protection under the Fourteenth Amendment
due to its disparate impact on women. Id. at 612. In determining whether the
ordinance warranted strict scrutiny, this Court reviewed the effect of the restriction
under each constitutional provision, rather than considering a specific standard
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generally applicable to anti-nepotism provisions. Id. Because the provision at
issue did not require a heightened standard of review, this Court analyzed the
plaintiffs’ claims under the rational basis standard. Id. at 614-15. That section
20-2-51(c)(2) combats nepotism therefore does not, in itself, subject it to strict
scrutiny review.
In asserting that equal protection analysis of section 20-2-51(c)(2) demands
strict scrutiny, the Plaintiffs charge both that it is too narrow and that it is
overbroad. Plaintiffs argue that the statute’s failure to address potential nepotism
by grandparents, aunts, uncles, cousins, and the like demonstrates that “this statute
was not drafted with ‘nepotism’ as the purpose[,]” “but rather was intended to cost
someone elective office.” Appellees’ Br. 22-23. On this record, we cannot say
that the statute was enacted with an invidious purpose; pursuant to Clements, the
State may regulate one step at a time in order to address what it deems the most
pressing issues. Plaintiffs’ overbreadth argument similarly fails; that the statute
does not prevent nepotism in all its possible forms does not heighten the severity of
the restriction to necessitate strict scrutiny.
In addition, Plaintiffs argue that “the issue of nepotism can better be
addressed by specific rules relating to decisions regarding relatives . . . .”
Appellees’ Br. 26. They note that Georgia already has statutes in place that
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regulate school board members with respect to decisions affecting relatives
employed by the school system, including ethics provisions that subject a board
member to removal for breach. However, whether nepotism is “better” addressed
in one manner or another is irrelevant to our inquiry here; the standard of review
we apply in assessing the statute at hand is not measured by reference to alternative
measures. See, e.g., Morial, 565 F.2d at 301-03 (determining the appropriate level
of scrutiny prior to analyzing whether the restriction at issue “[met] the test of
reasonable necessity”). The Plaintiffs’ argument in this regard thus goes to the
question of whether Georgia Code Ann § 20-2-51(c)(2) is reasonably necessary to
combat nepotism. Because we hold here that the District Court erred in applying
strict scrutiny, we do not reach this issue.
Conclusion
“Candidacy for office is one of the ultimate forms of political expression in
our society.” Morial, 565 F.2d at 301. However, “[f]ar from recognizing
candidacy as a ‘fundamental right,’” the Supreme Court has stated “that the
existence of barriers to a candidate’s access to the ballot ‘does not of itself compel
close scrutiny.’” Clements, 457 U.S. at 963 (quoting Bullock, 405 U.S. at 143).
Likewise, although “[v]oting is of the most fundamental significance under our
constitutional structure[,] [i]t does not follow . . . that the right to vote in any
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manner and the right to associate for political purposes through the ballot are
absolute.” Burdick, 504 U.S. at 433 (internal citations and quotations omitted).
Only where candidacy or ballot access regulations severely burden the availability
of political opportunity do we apply strict scrutiny.
On the current record, the District Court erred in reviewing Plaintiffs’
constitutional claims under the strict scrutiny standard. Because the application of
strict scrutiny on review of the Plaintiffs’ constitutional claims was error, Plaintiffs
have not demonstrated a likelihood of success on the merits, as required to obtain a
preliminary injunction. We note that, although the Republican Party has been
excused from appearing in this matter, our decision reversing the grant of a
preliminary injunction applies to both the Secretary of State and the Republican
Party. We express no view as to the merits of any other theory of liability
Plaintiffs may wish to assert at any further proceedings before the District Court.
Pursuant to Ex Parte Young, 209 U.S. 123, the Secretary of State has the
duty and the power to enforce the State’s election code. The District Court did not
err in holding that the Secretary of State is a proper party in this action.
AFFIRMED in part, and REVERSED in part.
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