David Duke; Martha Andrews; William Gorton and Victormanget, Plaintiffs-appellants, v. Max Cleland, Secretary of State of Georgia and Chair of Thepresidential Candidate Selection Committee;presidential Candidate Selectioncommittee and Alec Poitevint,defendants-appellees, 5 F.3d 1399 (11th Cir. 1993)

The plaintiffs in this case are David Duke ("Duke"), a controversial political figure, and three Georgia voters (the "Voters"). Georgia's Secretary of State, Max Cleland ("Cleland"), its Republican party chairman, Alex Poitevint ("Poitevint"), and the Georgia presidential candidate selection committee (the "Committee"), are the defendants. Duke and the Voters filed suit after the Committee's Republican members, acting pursuant to power granted by state law, excluded Duke from a list of Republican candidates to be placed on Georgia's presidential primary election ballot. The plaintiffs claimed that the Committee's actions constituted an improper use of state power. The district court granted the defendants' motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b) (6) and the plaintiffs appeal. We vacate and remand.

In December 1991 Cleland, acting as Secretary of State of Georgia, prepared and published a list of candidates for the upcoming 1992 presidential preference primaries per section 21-2-193(a) of the Georgia Code. Section 21-2-193 establishes the "presidential candidate selection committee" comprised of the Speaker of the House, the Senate majority leader, the minority leaders of both the House and the Senate, and the chairmen of the political parties. The Secretary of State is the nonvoting chairman.¹  Pursuant to section 21-2-193 Cleland placed Duke on the list as a nationally recognized candidate for the 1992 Republican Party nomination for President of the United States.

When the Committee met, the three Republican members voted unanimously to remove Duke's name from the presidential preference primary ballot as authorized by section 21-2-193(a). Duke appealed his removal from the ballot pursuant to section 21-2-193(b) of the Georgia Code. The Committee met to hear the appeal, but no Republican member of the Committee voted to restore Duke's name to the ballot.

Duke and the Voters, who previously voted in Republican primaries and wished to have an opportunity to vote for Duke in the 1992 presidential preference primary, filed an action in federal district court against Cleland as Secretary of State and as chair of the Committee and against the Committee itself, seeking a temporary restraining order, preliminary injunction and permanent injunction under 42 U.S.C. § 1983 to prohibit the printing of ballots for the 1992 Georgia Republican presidential preference primary unless Duke was listed as a candidate. Plaintiffs claimed that the actions by the Committee and Cleland to exclude Duke from the Republican Party primary ballot deprived them of their right to free speech, right to association, right of equal protection, right to due process, right to run for office and right to vote in violation of the First and Fourteenth Amendments of the United States Constitution. Cleland opposed the requested relief. Poitevint, Georgia's Republican Party Chair, moved to intervene as a defendant.

The district court held a hearing and granted Poitevint's motion to intervene. In a written order, the district court denied the temporary restraining order and the preliminary injunction. Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga. 1992). We affirmed. Duke v. Cleland, 954 F.2d 1526 (11th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 1152, 117 L. Ed. 2d 279 (1992) [hereinafter Duke I ].

Plaintiffs then filed an amended complaint, reasserting the allegations in the first complaint and asserting an additional claim under 42 U.S.C. § 1983 that the Georgia presidential preference primary candidate selection statute violates their right of free speech, right of association, right to equal protection, right to run for office, right to vote and right of due process guaranteed by the First and Fourteenth Amendments of the Constitution of the United States. Cleland and Poitevint moved to dismiss the plaintiffs' amended complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b) (6). The district court granted the defendants' motions to dismiss on the grounds that there was no state action, plaintiffs' constitutional rights were not violated and the statute is constitutional. This appeal followed.

We review de novo the district court's dismissal of plaintiffs' complaint for failure to state a claim. See Thomas v. Evans, 880 F.2d 1235, 1239 (11th Cir. 1989). We must take the complaint's allegations as true and read them in the light most favorable to the plaintiffs. Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992). A complaint may not be dismissed unless the plaintiff can prove no set of facts entitling him to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Pataula Electric Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir. 1992).

Duke and the Voters contend that the district court misapplied Rule 12(b) (6) in dismissing their complaint. Specifically, they allege that the district court erred by finding (1) no state action and (2) that the statute did not violate Duke's and the Voters' constitutional rights.² 

It is well established that in any action brought under 42 U.S.C. § 1983 the initial inquiry must focus on whether the two essential elements to a Sec. 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). The panel in Duke I assumed arguendo that the actions of the Committee constituted state action for purposes of that lawsuit. The district court in this case held instead that the plaintiffs failed to allege a sufficient basis that the Committee's decision to exclude Duke was fairly attributable to the state. The district court examined the statute and concluded that it did not (1) involve the state in party member decisions, (2) delegate authority that the parties did not have already, or (3) mandate guidelines for the decision-making process. In essence, the district court--citing our decision in Delgado v. Smith, 861 F.2d 1489, 1496 (11th Cir. 1988), cert. denied, 492 U.S. 918, 109 S. Ct. 3242, 106 L. Ed. 2d 589 (1989)--found that the statute preserves party autonomy, and thus does not constitute state action. We disagree.

The Committee is a creature of state law and its actions are attributable to the state. First, the state vests the initial power to include or exclude candidates in the Secretary of State. This seminal power of selection, conferred upon a high state official, is tempered only by the state's requirement that the candidates selected be generally recognized by the national media as aspirants for the presidency.³  Second, the statute then confers upon the Committee the absolute power to decide who may run and who may not. The statute represents a scheme whereby the state confers largely upon itself the raw power to choose who may or may not be party primary candidates. Two-thirds of the Committee's voting members are elected officials representing their respective parties. No guidelines limit their power. The Committee may exclude nationally recognized candidates for any reason or no reason at all.

Party membership is no concern of the state. Smith v. Allwright, 321 U.S. 649, 664, 64 S. Ct. 757, 765, 88 L. Ed. 987 (1944); see also Democratic Party of U.S. v. Wisconsin ex rel. Lafollette, 450 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981). An entity may, however, become "so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 299, 86 S. Ct. 486, 488, 15 L. Ed. 2d 373 (1966). When as here the state empowers its officials to exclude presidential aspirants from the presidential primary ballot, the power exercised is directly attributable to the state. Allwright, 321 U.S. at 664-65, 64 S. Ct. at 765-66. Indeed, the Committee performs a critical public function by limiting the electorate's voting choices to its preferred candidates only. See id.

That the Committee exercises judgment independent of the state does not necessarily negate state action. See Terry v. Adams, 345 U.S. 461, 469, 73 S. Ct. 809, 813, 97 L. Ed. 1152 (1953). The Committee acts in "matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly." Nixon v. Condon, 286 U.S. 73, 88, 52 S. Ct. 484, 487, 76 L. Ed. 984 (1932). Its power to restrict ballot access flows directly from the state ab intitio. See Allwright, 321 U.S. at 664, 64 S. Ct. at 765. The parties themselves do not select their primary candidates or retain ultimate responsibility for choosing those it seeks for representation. Indeed, the Committee's determinations are essentially unreviewable by the party membership.⁴  The Committee's power is such that it alone may declare who is fit to run, and who, by extension, is fit to govern. As the product of state legislative choice, the Committee's power constitutes "state action" within the meaning of the Fourteenth Amendment. Bullock v. Carter, 405 U.S. 134, 140, 92 S. Ct. 849, 854, 31 L. Ed. 2d 92 (1972).

Because the Committee is an arm of the state, the private associational rights of the Republican party do not end the inquiry in this case. See, e.g., Newton, 382 U.S. at 299, 86 S. Ct. at 488. Also at stake are Duke's asserted right to associate with a political party free from governmental interference based on ideology,⁵  and the Voters' right to vote for a candidate best reflecting their views, free from governmental entanglement. See Bullock, 405 U.S. at 143, 92 S. Ct. at 856 (" [T]he 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."). Because the state's action implicates important constitutional rights we must next determine the appropriate level of judicial scrutiny to be applied.

The panel in Duke I canvassed Supreme Court case law and noted that the Court has often deviated from traditional strict scrutiny analysis in ballot access cases. 954 F.2d at 1529-30 (and the cases cited therein). Most notably, in Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983), the Court articulated a flexible approach to determine the proper standard of judicial review to be applied in ballot access cases, one that requires a balancing of the Constitutional interests asserted by the plaintiffs and the state's asserted justifications for its legislation:

[A court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. The results of this evaluation will not be automatic; as we have recognized, there is "no substitute for the hard judgments that must be made."460 U.S. at 789-90, 103 S. Ct. at 1570 (citations omitted); see Norman v. Reed, --- U.S. ----, ----, 112 S. Ct. 698, 705, 116 L. Ed. 2d 711 (1992); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 213-14, 107 S. Ct. 544, 547-49, 93 L. Ed. 2d 514 (1986). The approach adopted in Anderson is a balancing test that ranges from strict scrutiny to a rational-basis analysis, depending upon the factual circumstances in each case. Fulani v. Krivanek, 973 F.2d 1539, 1543 (11th Cir. 1992).

In its latest pronouncement in the ballot access area, the Court in Burdick v. Takushi, --- U.S. ----, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992), reiterated this open-ended approach and explained 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. at ----, 112 S. Ct. at 2063. Thus, while "voting is of the most fundamental significance under our constitutional structure," Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S. Ct. 983, 990, 59 L. Ed. 2d 230 (1979), the mere fact that a state has created barriers tending to limit the field of candidates does not alone compel strict scrutiny. Burdick, --- U.S. at ----, 112 S. Ct. at 2063; Bullock, 405 U.S. at 143, 92 S. Ct. at 856. Rather, a court considering a state election law challenge 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." Burdick, --- U.S. at ----, 112 S. Ct. at 2063; Anderson, 460 U.S. at 789, 103 S. Ct. at 1570.

Thus, when the state election scheme burdens a fundamental constitutional right severely, it may survive only if it is narrowly tailored to advance a compelling state interest. Burdick, --- U.S. at ----, 112 S. Ct. at 2063. "But when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. at ---- - ----, 112 S. Ct. at 2063-64 (quoting Anderson, 460 U.S. at 788, 103 S. Ct. at 1569).

The posture of this case makes it impossible for us to undertake the proper review required by the Supreme Court. While Duke and the Voters have made clear their asserted rights under the First and Fourteenth Amendments, the record before us is devoid of evidence as to the state's interests in promulgating section 21-2-193. This case is before us on appeal from a dismissal of the plaintiffs' amended complaint under Rule 12(b) (6). Discovery has not commenced. The state, therefore, has not as yet asserted its precise interests justifying the burden imposed by its election law.⁶ 

Because it is possible that upon remand the state's interests may not justify the burden upon the plaintiffs' asserted rights, we vacate the district court's order and remand this case for further proceedings designed to determine with particularity the interests purportedly advanced by section 21-2-193. We take no position as to the ultimate merits of the plaintiffs' claims. The allegations asserted, however, are sufficient to allow the parties to conduct discovery. Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579-80 (11th Cir. 1986). Upon a clear determination of those interests, the district court must weigh them against the purported burden upon the plaintiffs' constitutional rights, then apply the proper level of scrutiny pursuant to the teachings of Anderson and Burdick.

The Georgia presidential candidate selection committee constitutes state action. The rights at stake therefore go beyond the private associational rights of the Republican party. Accordingly, we vacate the district court's order and remand for further proceedings consistent with this opinion.

VACATED and REMANDED.