Hero v. Lake County Election Bd., No. 21-2793 (7th Cir. 2022)
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The Seventh Circuit affirmed the judgment of the district court dismissing this action challenging the conduct of the Lake County Election Board, holding that the Election Board did not violate Joseph Hero's First and Fourteenth Amendment rights.
Hero, a registered republican for forty years, opposed the decision of his town council to exercise its eminent-domain authority to seize the property of predominantly lower-income homeowners. Hero backed two independent candidates for town council running against two incumbent, pro-development candidates. Thereafter, the Indiana Republican Party banned Hero from the Republican Party for ten years. In 2019, Hero attempted to appear as a Republican candidate in the 2019 election, but the Election Board concluded that Hero could not run. Hero subsequently filed a complaint arguing that the Election Board violated his First and Fourteenth Amendment rights. The district court dismissed for lack of standing. The Seventh Circuit affirmed, holding (1) Hero had standing to sue; and (2) the Election Board did not violate Hero's constitutional rights.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21 2793 JOSEPH HERO, Plainti Appellant, v. LAKE COUNTY ELECTION BOARD, Defendant Appellee. ____________________ Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 19 cv 00319 — Damon R. Leichty, Judge. ____________________ ARGUED APRIL 13, 2022 — DECIDED AUGUST 2, 2022 ____________________ Before ROVNER, WOOD, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Joseph Hero has been a registered Republican for forty years. He supported Republican candi dates, voted in Republican primaries for decades, and even ran for o ce as a Republican with occasional success. But lo cal politics can be messy. Hero’s town council decided to ex ercise its eminent domain authority to seize property of low income residents. Hero opposed the measure and backed in dependent candidates to replace two incumbent Republican 2 No. 21 2793 councilmembers. Upon learning of his actions, the Indiana Republican Party banned him from the Republican party for ten years. Undeterred, Hero tried to appear as a Republican candidate in the 2019 election. He met all the criteria estab lished by Indiana law, but the party objected to his status, and the Lake County Election Board (“the Election Board”) sided with the party, striking his name from the ballot. Hero sued the Election Board, seeking declaratory relief that his rights were violated in the past election and an injunc tion prohibiting the Election Board from similar conduct in future elections. The district court dismissed for lack of juris diction. We a rm, albeit on a di erent basis. I. Background Hero, a resident of St. John, Indiana, has been a member of the Republican Party for more than forty years. He voted as a Republican in every primary election since the mid 1980s, including in the 2020 primary election; held numerous posi tions within the Republican Party, such as Lake County Re publican Chairman; supported Republican candidates for every o ce; and usually voted for Republican candidates in the general election. In 2015, St. John got swept up in a polarizing debate over eminent domain. The St. John Town Council, comprised ex clusively of five Republican members, voted to seize private residences for a commercial development. Some residents were unhappy because this decision would have primarily af fected lower income homeowners who had been living in the area all their lives. They formed a local political action com mittee to elect two independent candidates for town council running against the incumbent, pro development candidates. No. 21 2793 3 Hero lent his support to the e ort, o ering legal advice, post ing yard signs, and making his opinions publicly known. Ac cording to Hero, the issue was not partisan (one of the inde pendent candidates was also a Republican), and this election was the only instance in which he openly campaigned for the defeat of a Republican candidate. The state Republican Party, however, caught wind of Hero’s e orts to oust Republican incumbents. The year after the contentious events, Hero ran to retain his position as St. John Precinct Committeeman and delegate to the Republican State Convention. The Republican Party o cials determined that because he supported the independent candidates in the town council election, he could not serve in these capacities. Shortly after, Hero received a letter from the state chairman of the Republican Party, informing him that for the next ten years he was “not a Republican in good standing” and thus barring him from seeking elected o ce in Indiana as a Repub lican during that time. Undeterred by the letter, in 2019, Hero declared his candidacy for an at large seat on the St. John Town Council. Under Indiana law, there are three ways to appear on an election ballot. First, a candidate of a major political party can file a “declaration of candidacy” for a party if either he voted in the last primary election, or the county chairman certifies that the candidate is a member of the political party. Ind. Code § 3 8 2 7(a)(4) (2021). Second, a candidate can run as an independent by obtaining two percent of the total vote cast in the last election. Id. § 3 8 6 3(a). Third, a candidate can appear as a write in option. Id. § 3 8 2 2.5(a). Despite meeting the requirements to appear on the Repub lican primary ballot in 2019, the chairman of the Lake County 4 No. 21 2793 Republican Party and a member of the Lake County Council challenged Hero’s candidacy. The Lake County Election Board held a hearing on February 26, 2019. Hero explained that he met the requirements under Indiana law to be a Re publican in the upcoming primary election. He presented an opinion from an attorney for the Indiana Election Division and a print out of every Republican primary he had voted in since the mid 1980s. The challengers conceded that Hero met the qualifications for a liation under Indiana Code § 3 8 2 7(a)(4) but maintained that Hero could not run based on “an actual order from the party chairman in Indiana.” The Elec tion Board unanimously ruled against Hero and removed his name from the Republican primary ballot. Hero filed a complaint against the Election Board in fed eral court, arguing that “[t]he determination that the plainti may not run for election as a member of the Republican Party, and the resulting removal of the plainti from the Republican primary ballot, violates the First and Fourteenth Amend ments of the United States Constitution.” See 42 U.S.C. § 1983. He requested declaratory relief that the Election Board “vio lated the rights of the plainti ” and an injunction “prohibiting the [Election Board] from prohibiting the plainti from seek ing election as a member of the Republican primary provided that he meets all requirements of Indiana Code § 3 8 2 7,” though not damages. He submits that he would like to run as a Republican candidate “for the St. John Town Council or an other local o ce at the earliest opportunity” and the Election Board’s position e ectively denied him the chance to run for the duration of the ten year ban. Both parties moved for summary judgment, and the dis trict court dismissed the appeal for lack of standing. The 2019 No. 21 2793 5 election “has been held and decided,” and there were no “con tinuing, present adverse e ects” of the past illegal conduct. II. Discussion On appeal, Hero argues he has standing to sue and should prevail on the merits of his claim. We review the district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of the nonmoving party’s favor. Lewis v. Ind. Wesleyan Univ., 36 F.4th 755, 759 (7th Cir. 2022). A. Article III Jurisdiction We first address our jurisdiction. The Election Board claims that Hero lacks Article III standing and, in the alterna tive, his claims for relief are moot. In his complaint, Hero sought a declaratory judgment for a past alleged wrong—his ballot access denial from the Republican primary in 2019— and an injunction for a future wrong—the potential depriva tion of his alleged right to appear on the ballot for the 2023 Republican primary. Although a plainti must have standing for each requested relief, see California v. Texas, 141 S. Ct. 2104, 2115 (2021), we focus on the declaratory judgment because Hero has satisfied the requirements under Article III.1 1 Hero’s claim for an injunction is more problematic. A plainti seeking “prospective relief against a harm not yet su ered … must establish that he ‘is immediately in danger of sustaining some direct injury as the result of the challenged o cial conduct[,] and [that] the injury or threat of injury [is] both real and immediate, not conjectural or hypothetical.’” Bell v. Keat ing, 697 F.3d 445, 451 (7th Cir. 2012) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)); see also Lopez Aguilar v. Marion Cnty. Sheri ’s Dep’t, 924 F.3d 375, 393–94 (7th Cir. 2019). A plainti , like Hero, alleging some 6 No. 21 2793 1. Standing Article III grants federal courts jurisdiction over “cases” and “controversies.” U.S. Const. art. III § 2. “One essential as pect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). Standing has three elements: a plainti must have su ered (1) a concrete and particularized injury that is actual or imminent, (2) trace able to the defendant’s conduct, and (3) can be redressed by judicial relief. Pierre v. Midland Credit Mgmt., Inc., 29 F.4th 934, 937 (7th Cir. 2022); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). The Election Board does not contest that Hero has satisfied most of the standing requirements—he suf fered a concrete and particularized injury, caused by the Elec tion Board, that could be remedied by his requested relief. The Election Board maintains, however, that neither of Hero’s re quested remedies satisfy the “actual or imminent” require ment of injury in fact. We disagree. The claim for declaratory judgment easily meets the “ac tual” injury requirement of standing. Hero requested relief for a past wrong—mainly, the Election Board’s decision to strike his name from the Republican Party’s primary ballot for the 2019 election. A routine past harm, such as denial of access to a ballot, presents a textbook example an “actual” injury suf fered. See, e.g., Acevedo v. Cook Cnty. O cers Electoral Bd., 925 F.3d 944, 947 (7th Cir. 2019). “criminal or unconstitutional behavior” based on o cial conduct that has yet to transpire faces a steep climb. Bell, 697 F.3d at 451. No. 21 2793 7 2. Mootness While Hero has standing to seek a declaratory judgment, we still must consider mootness. An actual controversy must exist at every phase of litigation. Campbell Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016). If later events resolve the dispute, then the case is moot. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71–72 (2013). Both parties acknowledge that the re quest for declaratory relief fits within this definition because the 2019 election has come and gone. Hero argues though that his case is not moot because it falls within the “capable of rep etition, yet evading review” exception, which permits courts to hear cases after resolution because the injuries occur too quickly for judicial review during the normal process. “The exception applies where ‘(1) the challenged action is in its du ration too short to be fully litigated prior to cessation or expi ration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Fed. Election Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Hero’s claim for a declaratory judgment falls within the “capable of repetition, yet evading review” exception. “Chal lenges to election laws [or election board decisions] are one of the quintessential categories of cases which usually fit” within the evading review “prong because litigation has only a few months before the remedy sought is rendered impossible by the occurrence of the relevant election.” Graveline v. Benson, 992 F.3d 524, 533 (6th Cir. 2021) (quoting Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005)); see also Gaspee Project v. Mede ros, 13 F.4th 79, 84 (1st Cir. 2021); Acevedo, 925 F.3d at 947. Elec tions often happen too quickly for meaningful judicial review to occur before a dispute is resolved, as many cases take years 8 No. 21 2793 to reach a final disposition. Absent this exception, few chal lenges would be heard outside of an emergency basis. The facts here o er an illustrative example. Hero declared his can didacy in early 2019, and the Election Board heard his chal lenge in late February 2019. Hero filed his complaint shortly thereafter, in August 2019, and a final resolution will come, at the earliest, three years later. A three year timeline is certainly not su cient to litigate this di cult case before it becomes moot.2 Hero also will reasonably run again “at the earliest oppor tunity.” He declared his intention to do so and has a long his tory of running for o ce. The ten year ban is still in e ect, and neither the Indiana Republican Party nor the Election Board have shown any intention to change course. Recent Supreme Court decisions advise that routine elec tion law cases, such as this one, typically remain justiciable after the election has passed. In Federal Election Commission v. Wisconsin Right to Life, Inc., for example, the Court unani mously held that a challenge to the Federal Election Commis sion’s blackout period for ads prior to an election was not moot. 551 U.S. at 462. Despite a two year challenge window, the case would still avoid judicial review because groups 2 The Election Board averred for the first time at oral argument that Indi ana state law, by providing some process to challenge the law, satisfied the “evading review” prong of the mootness exception. Assuming with skepticism that a state court procedure might adequately provide the nec essary review contemplated by federal law, a proposition that no other circuit court has recognized, the Election Board has failed to provide any details to support its argument. When pressed, it could not even say con clusively whether a decision would be rendered by a state court in time for an election. No. 21 2793 9 might not know what ads to air until the public concern arises. Id. at 462–63. Nor does there need to be any type of precisely similar fact pattern. Id. at 463. “Requiring repetition of every ‘legally relevant’ characteristic of an as applied chal lenge—down to the last detail—would e ectively overrule this statement by making this exception unavailable for virtu ally all as applied challenges.” Id. One year later, the Court rea rmed this holding in Davis v. Federal Election Commission. 554 U.S. 724 (2018). A group sought to run an ad within thirty days of the Wisconsin primary, and the Court again held that it was not moot because the case “closely resemble[d]” Wis consin Right to Life. Id. at 735. Our opinion in Gill v. Scholz, 962 F.3d 360 (7th Cir. 2020), parallels this case. There, David Gill wanted to run as an in dependent candidate for an Illinois election, but he came up 2,000 votes shy of the number necessary to appear on the gen eral ballot. Id. at 361. He and several registered voters sued the election board for a violation of the First and Fourteenth Amendments. Id. at 362. The district court granted summary judgment to the board, and Gill appealed. Id. Despite finding the appeal of the stay was moot, we determined that his case fit within the “capable of repetition, yet evading review” ex ception because “Gill was unable to litigate his claim before the November 2016 election was held, and he has expressed his intent to run for o ce in 2020.” Id. at 363 n.3. Here too, Hero could not litigate his claim before the election on appeal, and he has declared his intent to run again. See also Acevedo, 925 F.3d at 947–48 (“[T]he timeline for collecting signatures to appear on a primary ballot is too short to fully litigate a chal lenge to the signature requirement. In light of this, and be cause Acevedo has expressed his intention to run for o ce in Cook County again, his challenge remains live.”). 10 No. 21 2793 Other circuits have reached the same conclusion in similar election law disputes. See, e.g., Gaspee Project, 13 F.4th at 84; Nat. Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 692 (2d Cir. 2013); Stop Reckless Econ. Stability Caused by Democrats v. Fed. Election Comm’n, 814 F.3d 221, 231 (4th Cir. 2016); Cath. Lead ership Coal. of Tex. v. Reisman, 764 F.3d 409, 422 (5th Cir. 2014); Graveline v. Benson, 992 F.3d 524, 533 (6th Cir. 2021); Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). The Election Board relies upon Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517 (7th Cir. 2001). In Tobin, the plainti s were Illinois residents who wished to place can didates from the Libertarian Party on the general election bal lot. Id. at 519. A group also formed a political committee, named Tobin for Governor, to support James L. Tobin for gov ernor of Illinois. Id. The party gathered signatures for its nom ination petition, but the Illinois State Board of Elections struck out so many that the petition fell below the necessary thresh old. Id. The Libertarian candidates who did not appear on the ballot first filed suit in Illinois state court; the state trial court determined that the Libertarian Party needed to be named, and the candidates did not serve the objectors or the party with the necessary petition for judicial review under Illinois law. Id. The circuit court dismissed the action, the state inter mediate appellate court a rmed, and the Illinois Supreme Court denied the appeal. Id. The plainti s then sued the board in federal court. Id. We concluded that the party’s case did not fall within the “capable of repetition, yet evading review” ex ception because “a controversy of this sort does not neces sarily evade review.” Id. at 529. The plainti s made several “procedural missteps that prevented judicial review of the Board’s decision.” Id. Additionally, there was no “reasonable No. 21 2793 11 expectation that Tobin for Governor [would] find itself in this same situation in the future.” Id. Ultimately, Tobin is distinguishable for three reasons. First, Hero never pursued a state remedy and thus never com mitted the various “procedural missteps” made by the Liber tarian candidates. Second, Hero has shown a “reasonable ex pectation” to run for o ce again; he has declared his intention and provided ample support to corroborate his plan. Finally, Hero advances a di erent type of claim than the one in Tobin. He alleges the state denied him complete ballot access, which di ers in kind from a failure to collect a certain number of ballot signatures. A signature collection issue lends itself to state resolution because of the di culties in verifying the in dividual signatures and the complex procedural vehicles to adjudicate disputes, whereas a ballot access claim often in volves agreed upon facts and isolated legal issues. B. Federal Question The Election Board raises a challenge, for the first time on appeal, to our statutory jurisdiction. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“Subject matter jurisdiction can never be waived or forfeited. The objections may be resurrected at any point in the litigation ….”). Section 1331 gives district courts “original jurisdiction of all civil actions arising under the Con stitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The well pleaded rule requires that a federal question be “apparent on the face” of the complaint. Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass’n, Inc., 707 F.3d 883, 890 (7th Cir. 2013) (citing Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). A federal statute that creates a “cause of action” raises a “federal question.” Sarauer v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. No. 10, 966 F.3d 12 No. 21 2793 661, 673 (7th Cir. 2020). Hero’s well pleaded complaint raises a “federal question” by alleging a deprivation of his First and Fourteenth Amendment rights. See 42 U.S.C. § 1983. Section 1983 provides a cause of action, which su ces to grant fed eral question jurisdiction in this case. C. Election Law We turn now to the merits.3 The First and Fourteenth Amendments safeguard the rights of citizens and political parties to participate in the electoral system. See Norman v. Reed, 502 U.S. 279, 288 (1992). “We have stated that the Ander son/Burdick ‘test applies to all First and Fourteenth Amend ment challenges to state election laws.’” Tully v. Okeson, 977 F.3d 608, 615 (7th Cir. 2020) (quoting Acevedo, 925 F.3d at 948). The Anderson Burdick framework derives from two Supreme Court cases, Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). In Anderson, the Court struck down as unlawful Ohio’s early filing deadline, which required independent candidates to file a statement of candi dacy in March ahead of the November election. 460 U.S. at 786–87. The law placed too great a restriction on the associa tional rights of independent voters. Id. at 790–92. In Burdick, however, the Court upheld a Hawaii law that prohibited 3 Although the district court did not consider the merits, “we may a rm on any ground supported in the record so long as it was adequately ad dressed below and the plainti s had an opportunity to contest the issue.” O’Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018). Hero sued the state Election Board for violating his First and Fourteenth Amendments rights. Both parties accept these amendments govern. We do not neces sarily share this confidence but given the clear resolution of this dispute and the possibility of waiver, we assume that Hero states a plausible claim for relief. No. 21 2793 13 write in voting under a more flexible standard. 504 U.S. at 432–33. The law imposed a low burden, and Hawaii had an interest in avoiding unrestrained factionalism. Id. at 433–40. The resulting test requires courts to engage in a two part inquiry: First, we determine whether the law imposes severe or reasonable and nondiscriminatory restrictions on can didates’ and voters’ constitutional rights so that we can ensure application of the appropriate level of scrutiny. Second, we must determine whether the state interest o ered in support of the law is su ciently weighty un der the appropriate level of scrutiny. Navarro v. Neal, 716 F.3d 425, 430 (7th Cir. 2013) (internal cita tion omitted). Severe restrictions on voter rights trigger strict scrutiny, whereas courts generally defer to the state’s interest for less restrictive ones, those that impose “reasonable, non discriminatory restrictions.” Id. (quoting Burdick, 504 U.S. at 434). The Election Board did not violate Hero’s First and Four teenth Amendment rights. The decision to strike Hero’s name from the ballot imposed only a minor restriction on his ballot access. Indiana law provides alternative means to access the general election ballot. Although Hero cannot run in the Re publican primary—undoubtedly his first choice—he can ei ther run as an independent by obtaining two percent of the total vote cast in the last election or as a write in candidate. Ind. Code §§ 3 8 2 2.5(a), 3 8 6 3(a). As an independent, he can tout his Republican virtues, tell voters he supports Repub licans, put up yard signs to that e ect, and run on a platform 14 No. 21 2793 identical to any political party. The only limitation is that he cannot appear on the Republican Party’s primary ballot. The restriction here is also reasonable and nondiscrimina tory. The state has an interest in protecting a party’s right to determine its own membership and limit its candidates to those party members. Cf. Ray v. Blair, 343 U.S. 214 (1952) (party loyalty oath); Kucinich v. Tex. Democratic Party, 563 F.3d 161 (5th Cir. 2009) (party loyalty oath); Da La Fuente v. Cortes, 751 F. App’x 269 (3d Cir. 2018) (sore loser law); S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752 (4th Cir. 2010) (sore loser law). Implicit in the First Amendment is the free dom “to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000) (quot ing Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)). “The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person a ects in a significant way the group’s ability to advocate public or private viewpoints.” Id. at 648. Political parties enjoy these associational rights like any other organi zation. And “[i]n no area is the political association’s right to exclude more important than in the process of selecting its nominee.” Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000); see also Maslow v. Bd. of Election in N.Y.C., 658 F.3d 291, 296 (2d Cir. 2011) (“The Supreme Court has emphasized— with increasing firmness—that the First Amendment guaran tees a political party great leeway in governing its own af fairs.”). Hero seeks to use the First Amendment as a sword, de manding “a certain degree of influence in[] the party.” N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008). No. 21 2793 15 But his bold assertion finds little support in precedent. Includ ing people una liated with the party—or those with whom the party does not wish to a liate—“may seriously distort [the party’s] collective decisions—thus impairing the party’s essential functions.” Democratic Party of U.S. v. Wisc. ex rel. La Follette, 450 U.S. 107, 122 (1981). “[P]olitical parties may ac cordingly protect themselves ‘from intrusion by those with adverse political principles,” id. (quoting Ray, 343 U.S. at 221– 22), so too can a state protect the First Amendment rights of a political party, as the Election Board did here by allowing the Republican Party to determine its own membership and re strict its standard bearers to members in good standing. Our conclusion aligns with two Eleventh Circuit opinions regarding a party’s e ort to exclude a candidate, David Duke, from its primary ballot. Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992).4 The cases involve essentially identical facts. Georgia law estab lished a committee to select the candidates for the presidential primary ballot. Cleland, 954 F.2d at 1527. Duke met the criteria, yet the Republican committee members successfully removed his name from the ballot. As a result, Duke and two 4 See also De La Fuente v. Simon, 940 N.W.2d 477, 496 (Minn. 2020) (“[T]he statute poses no bar to De La Fuente’s right to be a presidential candidate on the general election ballot, as a party’s nominee or a write in candidate. … In contrast to this de minimis burden, the associational rights of politi cal parties to choose a candidate are well established.”); Langone v. Sec’y of Com., 446 N.E.2d 43, 50 (Mass. 1983) (“To the extent, however, that the plainti s wish to associate and express their ideas as Democrats, those ideas may be represented by the several candidates who obtained the req uisite convention support. Every voter cannot be assured that a candidate to his liking will be on the ballot.”). 16 No. 21 2793 supporters sued the Secretary of State and Committee (not the Georgia Republican Party). Id. at 1527–28. Twice, the Eleventh Circuit sided with the state. In the first case, the court agreed that the committee’s action infringed upon Duke and his sup porters’ right to associate and vote. Id. at 1533. But Georgia “has an interest in maintaining the autonomy of political par ties,” which means the Republican Party “enjoys a constitu tionally protected right of freedom of association.” Id. at 1531– 32. Applying the “reasonable restriction” standard, the deci sion to exclude Duke easily passed muster. Four years later, the Eleventh Circuit again denied Duke his requested relief, this time under strict scrutiny because the “state has a com pelling interest in protecting political parties’ right to define their membership.” Massey, 87 F.3d at 1234. Both times, the interests of the party prevailed over that of a single candidate attempting to dictate an organization’s speech. While Hero is by no means advocating similar beliefs as Duke, he also can not define the Republican Party’s message. III. Conclusion For these reasons, we a rm the judgment of the district court.
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