September 24th, 1998

Precedential

98-2042

                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 98-2042.

                               Henry GREEN, Plaintiff-Appellant,

                                                 v.

  Sandra Barringer MORTHAM, Secretary of State, State of Florida, in her official capacity,
Defendant-Appellee.

                                          Sept. 24, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 96-CV-1143-T-
23A), Mark A. Pizzo, Magistrate Judge.

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.




   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).
       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 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 signatures. After swearing an intent to

   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,
               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); McNamee 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

                                                   2
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.




               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
               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).

                                                  3
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.

       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 constitutional,




   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.

                                                  4
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 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 Fee (percent of salary) Number of Candidates Qualifying9            Number
Qualifying by Paying Fee  Number Qualifying by Petition



       1990    6%       45    45      0


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

                                                5
       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 requirements. Burdick v. Takushi, 

504 U.S. 428

, 433, 

112 S.Ct.

2059

, 

119 L.Ed.2d 245

 (1992); Anderson v. Celebrezze, 

460 U.S. 780

, 788 & n. 9, 

103 S.Ct. 1564

,

75 L.Ed.2d 547

 (1983); see also Lubin v. Panish, 

415 U.S. 709

, 715, 

94 S.Ct. 1315

, 

39 L.Ed.2d 702


(1974); Jenness v. Fortson, 

403 U.S. 431

, 442, 

91 S.Ct. 1970

, 

29 L.Ed.2d 554

 (1971). The states'


                                                 6
compelling interests include maintaining fairness, honesty, and order, Burdick, 

504 U.S. at 433

, 

112

S.Ct. 2059

, minimizing frivolous candidacies, Lubin, 

415 U.S. at 715

, 

94 S.Ct. 1315

, and "avoiding

confusion, deception, and even frustration of the democratic process," Jenness, 

403 U.S. at 442

, 

91

S.Ct. 1970

. See also Anderson, 

460 U.S. at

788 & n. 9, 

103 S.Ct. 1564

. 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

, 

112 S.Ct. 2059

; Anderson, 

460 U.S. at 787-88

, 

103 S.Ct. 1564

; Lubin, 

415 U.S. at

716-

18, 

94 S.Ct. 1315

; Jenness, 

403 U.S. at 440

, 

91 S.Ct. 1970

. 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

, 

103 S.Ct. 1564

; see

also Tashjian v. Republican Party of Connecticut, 

479 U.S. 208

, 213-14, 

107 S.Ct. 544

, 

93 L.Ed.2d

514

 (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").

C. Post-Anderson Decisions


                                                  7
        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

, 

112 S.Ct.

698

, 

116 L.Ed.2d 711

 (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

, 

112

S.Ct. 2059

, 

119 L.Ed.2d 245

 (1992), which sheds further light on the standard for analyzing state

election 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

, 

112 S.Ct. 2059

 (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

, 

112 S.Ct.

2059

. Then citing Anderson again, the Supreme Court continued that "when a state election law

provision imposes only "reasonable, nondiscriminatory restrictions' " on those constitutional rights,




                                                     8
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 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

, 

112 S.Ct. 2059

).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.




      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.


                                                    9
        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, 

94 S.Ct. 1315

, 

39 L.Ed.2d

702

 (1974); Bullock v. Carter, 

405 U.S. 134

, 144-45, 

92 S.Ct. 849

, 

31 L.Ed.2d 92

 (1972). This

Court 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 and to trust fund); McNamee v. Smith, 

647 So.2d 162


(Fla.Dist.Ct.App.1994) (same).



   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).

                                                   10
        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,

91 S.Ct. 1970

, 

29 L.Ed.2d 554

 (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 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.


                                                  11
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. § 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, ...

   12
    The plaintiffs in Libertarian needed 144,492 signatures statewide, 

id. at 792

, whereas Green
needed only 4,077 from the Tenth Congressional District.
   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).

                                                  12
they may use random sampling techniques which reduce the number of signatures checked and

therefore the cost." Libertarian, 710 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

, 

91 S.Ct. 1970

. Florida's strong regulatory interests are

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

504 U.S. at 434

, 

112 S.Ct.

2059

 (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

        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



   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.

                                                  13
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 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.




                                                  14