ee UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA pew it, cas ATLANTA DIVISION ey Te WS ty Derk JOHN B. ANDERSON, et al. CIVIL ACTION vs. DAVID B, POYTHRESS, Secretary of State of the State of Georgia NO. C80-1671A ORDER This is an action in which plaintiffs allege that defendant violated their constitutional rights by unlawfully refusing to accept the nominating petition of plaintiff John B. Anderson (anderson) and thereby precluding his appearance on the Georgia general election ballot as an independent candidate for President of the United States. The case came before the court for a preliminary injunction hearing on September 25, 1980. At that time the parties agreed to consolidate the preliminary injunc- tion hearing with the trial of the action on the merits. Rule 65(a) (2), Fed.R.Civ.P. Accordingly, this order shall serve as the court's findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P. Background Facts Plaintiffs include Anderson, an independent candidate for the office of President of the United States; twelve candidates for the office of elector pledged to Anderson; and three duly registered voters, two of whom are registered in Georgia, who either signed a petition to assist Anderson in qualifying for a place on the Georgia general election ballot or who intend to vote for him if he so qualifies. As an independent candidate, Anderson was required to submit a nomination petition containing ee woe GB70,649 signatures to the o:fice of defendant Secretary of State VY the signatures of at least 57,539” registered voters in order to have his presidential electors placed on the November 1980 Georgia general election ballot. Anderson, already on the ballot in 49 other states, submitzed a nomination petition containing (Secretary). Pursuant to GA. CODE ANN. § 34-1011(b), the Secre- tary then conducted a review of the signatures for the purpose of validation, and held 16,170 signatures to be invalid. Most of the invalidated signatures were found to be infirm either because the Secretary could not confirm the signatory as a reg- istered voter or because the signature was illegible. On the basis of his review, the Secretary determined that Anderson's petition contained 54,479 valid signatures. This number is 3,060 less than the total needed for Anderson to appear on the ballot. On September 3, 1980, the Secretary provided written notice to Anderson of the denial of his (Anderson's) nomination petition for the reason that-an insufficient number of valid signatures of registered voters appeared thereon. GEORGIA CODE ANN. § 34- 1011(c) requires that review of such a determination be filed in the form of a mandamus action within five days after notifi- cation. Accordingly, on September 8, 1980, Anderson and his electors filed suit in the Superior Court of Fulton County seek- ing to require the Secretary to place them on the ballot. The superior court heard the matter on September 11, 1980. At the hearing, Anderson presented evidence that the Secretary failed to follow a uniform procedure from county to county in the vali- dation process,*/ the effect of which was to invalidate the sig- ¥ one parties are agzeed that this figure represents 2-1/28 of the total number of voters eligible to vote in the last elec- tion for the same office, as required by GA. CODE ANN. § 34 1010(b) 2/ wne secretary employed individual investigators to col duct the verification process. ‘The investigators apparently did not follow uniform and consistent procedures in determining whether or not a signatory was a registered voter. Justice Nichols of the Georgia Supreme Court summed up certain of these inconsistencies as follows: G3natures of significant numbers of registered voters. An exami- nation of the registration lists in two counties indicated that certain voters found not to be registered by the Secretary were in fact registered. In addition, Anderson showed that he had conducted a small random sample of disqualified signatories and that many of these signatories were in fact registered voters. on September 12, 1980, the superior court issued an order upholding the Secretary's determination that Anderson's nomina- tion petition did not contain the required 57,539 valid signa~ tures. In so ruling, the court assigned the burden of proof to Anderson to prove by a preponderance of the evidence either (1) that he in fact had obtained the requisite number of valid sig- | natures; or (2) that the Secretary manifestly abused his dis- | cretion in the manner in which he determined the invalidity of the 16,170 invalid signatures. ‘The court found that Anderson met| neither burden. Anderson v. Poythress, No. C-67519 (Super. Ct. Fulton Co. Sept. 12, 1980). Anderson appealed that decision to the Georgia Supreme Court, which was under an obligation pursuant to GA. CODE ANN. § 34- | 1011(c) "to announce its decision within such period of time as 2/ (Cont'a.) [1]n Fulton County over 1,000 names which were not found on the computerized voter registration lists were found by checking the registration cards. But, in Chatham County where 858 signers were found not to be registered, the investigator did not check the registration cards at all. In Clayton County, where 486 signers were found not to be registered, the investigators also completely failed to refer'to the cards. In Cobb County, where 1785 signers were found not tobe registered, there was no countywide computerized list of registered voters and investigators relied solely on the registration cards. But uncontradic- ted testimony showed that out of 17 invalidated as not registered, 12 had cards. There was also evidence that in Fulton County, where 5,325 signatures were invalidated, a computerized address list was checked only infrequently Yet such cross-checking in other counties such as DeKalb County resulted in the validation of previously invalidated signatures. Anderson v. Poythress, No. 36807 (Ga. Sup. Ct. Sept. 25, 1980) Nichols, J., dissenting) . ~3- *~ 44three dissenters, the court held that the burden of establishing will permit the name of the candidate affected by the court's decision to be printed on the ballot, if the court should so determine." On September 25, 1980, the court announced its decision affirming the judgment of the superior court. over that the Secretary erred in his method of determining the number of valid signatures or that previously invalid signatures were in fact valid was properly placed on the political candidate. With respect to the sufficiency of the evidence, the court rec- ognized "the time exigencies under which this case was appealed from the superior court, md the constraints placed upon [Ander- son] thereby," but nonetheless concluded that there was suffi- cient evidence to support the trial court's decision. Anderson vs Poythress, No. 36807 (Ga. Sup. Ct. Sept. 25, 1980). During the pendency of Anderson's appeal to the Georgia Supreme Court but before that court entered its judgment, he, his electors, and three registered voters who either support him or signed his nomination petition brought this action. They claim in very general terms that the Secretary's refusal to place Anderson and his electors on the ballot violates their first and fourteenth amendment rights to seek office and to vote for can- didates of their choice. The principal relief that plaintiffs neck’ in a declaration that the Secretary hae violated their constitutional rights and an injunction precluding the Secretary from denying Anderson a place on the November 1980 general elec- tion ballot. II. Threshold Issues Before the court can consider the merits of this case, it must address several threshold issues that arise due to the ¥ praintitts additionally seek damages based on the amount of funds Anderson would be entitled to under the Federal Election Act. 26 U.S.C. §§ 9004(a) (3) and 9006(b). No evidence is in the record pursuant to this claim, however, and the court DECLINES to consider making any award for it. ~4- 45nature of the case and its prior litigation history. A first issue is whether the fact that the Georgia state court system has previously entertained a review of the Secretary's action and has upheld it should cause this court to invoke the doctrine enunciated in Younger v. Harris, 401 U.S. 37 (1971), and as applied to civil cases involving an important state interests in Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), and Moore v. Sims, 442 U.S. 415 (1979). Younger and its progeny instruct a federal court to employ a policy of equitable restraint when an exercise of its power would interfere with an ongoing state proceeding where an important state interest is at stake. Here however, the Georgia Supreme Court handed down its affirmance of the judgment of the superior court during the trial of this case before this court. Consequently, no pending state court proceeding currently exists. Plaintiffs' sole remaining direct avenue of review of the state court decision lies in petition for certiorari to the United States Supreme court.“/ under these circumstances, "that threat to our federal system posed by dis- placement of state courts by those of the National Government" no longer exists. Moore v. Sims, supra, at 423; see Huffman v. Pursue, supra, at 607-11. The court therefore need not abstain on the ground of the pendency of a state court proceeding. 5/ The Secretary raises a second--and somewhat related: threshold issue by vigorously urging the court to rule that plaintiff's current action is res judicata as a result of the state court judgment entered in his favor. Under the doctrine of res judicata, a final judgment on the merits in one case is 4 ¥Y sraintises appare: tionality of the Georgia and thus may not invoke 4: y did not challenge the constitu- ‘tutory scheme in the state courts ct appeal under 28 U.S.C. § 1257(2) °/ tn Huffman v. Pursue, Ltd., 420 U.S. 592, 607 n.19 (1979), the Supreme Court stated that it is "difficult to con- sider the duration of Younger's restrictions after entry of a state trial court judgment, without also considering the res judicata implications of such a judgment." -5- 46D. Ga. 1972); 1B Moor: an absolute bar to a subsequent action on the same cause between the same parties and their privies, not only with respect to mat- ters actually litigated in the earlier action but also with respect to all matters that might have been litigated in the Federal Practice ¥ 0.405{1], at 621-24 | first action. E.g., Battle v. Cherry, 339 F.Supp. 186, 191 (N. | | (2d ed. 1980). The Secretary contends that although plaintiffs failed to raise their constitutional claim in state court, they could have raised it there and are thus precluded from bringing it in this action. In forwarding this argument, the Secretary fails to con- sider that at least three plaintiffs in this suit--those who are registered voters supporting Anderson or who have signed his nomination petition--were neither parties nor privies to any party in the state court proceedings. These three plain- tiffs possess two clearly established and independently protec- table rights under the first amendment: the right of indi- viduals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, "to cast their votes effectively" for the candidate of their choice. Williams v. Rhodes, 393 U.S. 23, 30 (1968) Res judicata cannot preclude these voter-plaintiffs from seeking to vindicate these rights by establishing that the Secretary has unconstitutionally denied to the candidate of their choice access to the ballot.£/ 1f voter-plaintiffs can establish that the constitutional rights of Anderson and his electors have been violated, these plaintiffs will also have established a violation | of their own constitutional right to cast their votes effectively for the candidate of their choice. Illinois State Board of Elec- &/ we rule of Monroe v. Pape, 365 U-S. 167 (1961), ov ruled _on other grounds, Monell v. Department of Social Services, 438-008. €58 (1878), prevails under these circumstances: one seeking redress under 42 U.S.C. § 1983 for a deprivation of federal rights need not first initiate state proceedings based on related state causes of action. ~6- . 47tions v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (re~ strictions on access to ballot implicate the right to vote). Because of the more or less derivative nature of voter-plain- tiffs' claims, the court need not reach the issue of whether res judicata would preclude Anderson or his electors from bring- ing this action, The court must examine whether Anderson and his electors were subjected to unconstitutional treatment regard- less of whether those plaintiffs are barred by res judicata from pursuing their claims. Any relief that the court accords to voter-plaintiffs would necessarily satisfy the claims for relief made by Anderson and his electors. Accordingly, the court turns to the merits of plaintiffs’ claim assuming, but not having decided, that only voter-plaintiffs have a cognizable cause of q action.” III. The Merits The merits of this action have been clouded due in large part to plaintiffs' failure to set forth or adequately brief the precise manner in which they claim to have been denied their constitutional rights. Plaintiffs stated at trial that they do not allege that the statute under which the Secretary denied Anderson access to the ballot is unconstitutional on its face. Such challenge would be fruitless anyway, inasmuch as the Supreme vy ~ although it leaves the issue open, the court would have certain misgivings about applying the doctrine of res judicata in full force to Anderson and his electors under the facts of this case. These plaintiffs became a part of a very extraordi- nary and expedited judicial proceeding in seeking to mandamus the Secretary under GA. CODE ANN. § 34-1011(c). They had only five days in which to file their writ, and then only three more days in which to prepare for trial of the substantive issue of whether the Secretary had erred in denying Anderson access to the ballot. During this period, they needed to prepare to re~ but the Secretary's findings with respect to a vast number of invalidated voter signatures. To expect them at the same time to explore more peripheral issues such as constitutional chal- lenges to the judicial proceedings in which they were partici- pating, and to deny them the right collaterally to raise such issues, may carry the application of the principles of res judi- cata too far. aeinclusion of a candidate on the ballot. Court in Jenness v. Fortson, 403 U.S. 421 (1971), has upheld the ballot access requirements imposed therein. ‘The Court in Jenness found an important state interest in requiring some preliminary showing of a significant modicum of support before The court is also uncertain whether plaintiffs seek to challenge the constitutionality of the statute as applied in this case. It appears that they do, although they have never explicitly so stated. The court perceives plaintiffs’ claim as one for interference with the exercise of their constitutional rights to vote and to gain access to the ballot by reason of the Secretary's failure to accord Anderson due process of law in applying the Georgia nomination petition statute to him. The crux of plaintiff's position is that the Secretary denied Anderson due process by imposing a series of unreasonable procedural obstacles upon him that made it almost impossible for him to get a fair review of the determination of the Secre- tary. More specifically, plaintiffs argue that the Secretary failed to afford Anderson adequate time or opportunity to prove the errors in the Secretary's validation process or to counter the Secretary's determinations of signature invalidation. Plain- tiffs point out that Anderson had only eight days between his notification of the denial of his nomination petition and the hearing reviewing that denial in superior court.°/ uring that time Anderson was saddled with garnering proof that, out of over | 16,000 of the Secretary's signature invalidations, the records 8/ by statute, Anderson was required to file for review in superior court within five days after receiving notification from the Secretary. The superior court was then under a duty to hold a hearing "as soon as practicable" thereafter. GA. CODE ANN. § 34-1011(c). ‘The practical effect of these provisions was to allow only an eight-day period between notification and the review hearing. | In actuality, the number of days available to Anderson for verification of signatures was only six. Two of the eight days between notification and the hearing were a Saturday and a Sun- day, on which days county courthouses are not open: eos] oe 49superior court. upon which are spread out in as many as 159 Georgia county court- houses, at least 3,060 signatures on his petition were improp- erly invalidated. In addition, Anderson was made to bear the burden of proof on these issues once the case came before the A fundamental requirement of: procedural due process is the opportunity to be heard "at a meaningful time and in a meaning- ful manner," Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (empha~ sis added). This opportunity must be "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria # Restaurant Workers, Local 473 v. McElroy, 367 U.S. 886, 895 (1961). Article II, section 1 of the Constitution provides that "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors ..." to choose a Presi- dent and Vice-President. Although this section clearly grants extensive power to the states to pass laws regulating the selec- tion of electors, the power cannot be exercised in such a manner as to violate other specific provisions of the Constitution. Williams v. Rhodes, supra, at 29. Accordingly, no state can pass a law regulating elections that, as applied, violates the fourteenth amendment's command that no state shall deny any person his fundamental rights and liberties without due pro- cess of law. The rights of plaint: 's that were allegedly infringed here "rank among our most precious freedoms." Voter-plaintiffs' rights include the right = qualified voters, regardless of their political persuasion, to cast their votes effectively Williams v. Rhodes, supra, at 30; Illinois State Board of Elec- tions v. Socialist Workers Party, supra, at 184. No right is ~9- es 50more precious in a free country than that of having a voice in the election of those who serve the public. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). "[T]he right to vote is ‘heavily bur- dened' if that vote may be cast only for one of two candidates at a time when other candidates are clamoring for a place on the ballot." Lubin v. Parrish, 415 U.S. 709, 716 (1974). Furthermore, "the right of an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters ...." Id.; see Illinois State Board of Elections v. Socialist Workers Party, supra, at 184. Access to the ballot is thus not only a protected right in itself, but represents an integral element in the effective implementation and exer- cise of the rights of political association and of voters. Under the peculiar facts of this case, the court after careful but rather expedited consideration must agree with plaintiffs that the procedure under which Anderson was forced to challenge the Secretary's determination violated due process of law. The court's decision does not rest on any single im- proper element in the procedure--such as shortness of time in which to garner evidence, imposition of the burden of proof on Anderson, etc.--but on a combination of these elements that when considered together virtually foreclosed Anderson's oppor- tunity to obtain meaningful’ review of the Secretary's action Although the truncated period in which to file for review under section 34-1011(c) may be appropriate in county or other local elections, it is less acceptable in statewide elections in which huge numbers of signatures may be necessary for nomination by petition. Anderson had tens of thousands of signatures on his petition, presumably including voters from nearly every county in Georgia (159 in total). Validation (or similarly invalida- tion) of those signatures requires going to each county court- house where voter lists are kept, and checking rejected signa~ tures against the various county voter records. Many pitfalls -10-surely lurk for the inexperienced or unwary, as the Secretary The Secretary spent 56 days completing his verifica- tion process. Anderson, by contrast, had only eight days in which to revalidate the signatures that the Secretary invali- datea.2%/ himself apparently discovered in conducting his own verification | | The time shortage faced by Anderson was compounded by the state court's placement of the burden of proof upon him. The placement of the burden of proof upon the candidate has been found to be singularly objectionable by the Massachusetts Su- preme Court in McCarthy v. Secretary of the Commonwealth, Mass. ___, 359 N.E.2d 291 (1977). In McCarthy, the court found as a matter of statutory construction that the Massachusetts general election laws did not place on the candidate "the massive and difficult, if not impossible, task ... of rechecking large numbers of signatures within the severe time constraints imposed by the electoral process." 1a. at 294.42/ In so ruling, the 2 see note 2 supra. 19/ tne court has considered whether plaintiffs exercised due diligence in pursuing the relief they sought in state court or, stated conversely, whether the doctrine of laches should prohibit them from complaining of the state court proceeding. There is every indication that plaintiffs have exercised due diligence. The Secretary repeatedly informed them that the printing of ballots was imminent and that any challenge to the Secretary's action required the earliest possible hearing. Plain- tiffs accordingly participated in the superior court hearing without asking for a continuance to more fully prepare their case. 11/ ty the present case and as a practical matter, such a canvass of 16,000 signatures from 159 counties in eight days would be utterly impossible. "Impossibilium nulla obligatio est": there is no obligation to do impossible things. appeal found McCarthy to support a finding that, under the cir- cumstances here presented, the burden of proof is properly upon the candidate. The distinguishing factor, according to the court, is that here the Secretary provided specific reasons for rejecting signatures as invalid whereas in McCarthy the Secretary failed to give such reasons. This court refuses to accept this distinction. The McCarthy court made a general finding that the candidate was not to beatthe burden of proving the validity of a sufficient number of petition signatures and stated that "[t]hi conclusion is particularly evident in a case such as this one where there is no evidence regarding the reasons for rejection of signatures ...." 359 N.E.2d at 294 (emphasis added). The majority of the Georgia Supreme Court in Anderson's |court found it unnecessary to reach the issue of whether impo- sition of such burden of proof upon the candidate would be un- constitutional. The court strongly intimated, however, that it would. Calling the constitutional issue "serious," the court stated that the Commonwealth must provide a fair and reasonable avenue for an independent candidate to secure a place on the ballot and that the state has no interest in "burdening the route to the ballot by denying meaningful review of the certi- fication process." Id. at 300 n.14 The court need not and does not hold that the placement of| the burden of proof on the candidate in challenging the Secre- tary's action, standing alone, is unconstitutional. When taken together with the shortage of time in which to verify signatures as well as other obstacles imposed on the candidate, however, the cumulative effect renders the review process in this case 12/ unduly burdensome. —~ The hopelessness of the situation that the state court placed Anderson in is illustrated by the testimony, undisputed by the Secretary, that even after 56 days of searching through voter registration lists the Secretary had mischaracterized as invalid a significant number of signatures. Mr. Albert Beerman, an accountant at Touche Ross & Company who was hired by plain- 12/ the constitutional analysis that the court must apply in a due process challenge to a state election procedure is settled doctrine. Where the fundamental personal liberties of the voter-plaintiffs--recognized by decisional authority as nationalized legal rights--to associate for political expression and to cast effective votes are burdened as in this case, a “strict scrutiny" of defendant's actions must be undertaken, rather than a mere "rational basis" test. See, e.g, Richards v. Lavelle, 620 F.2d 144 (7th Cir.1980). Although the state has an acknowledged "compelling" state interest in preserving the integrity of its electoral process and in regulating the number of candidates appearing on the ballot, Richards v. La- velle, supra, at 147, citing American Party of Texas v. White, 415 U. 767, 782 n.14 (1974), and Bowe v. Board of Election Commissioners, 614 F.2d 1147 (7th Cir. 1980), the application of the "strict scrutiny" test requires the state to adopt the least restrictive alternative to effectuate its interest. It has failed to do so here. -12-tiffs to conduct a statistical survey of signatories that the Secretary found unqualified, testified that in the limited time he had available to him, he conducted a small random survey in which error rates in the Secretary's invalidations were found to be large enough to indicate that Anderson's petition in fact contained a sufficient number of valid signatures. The state court found this preliminary showing insufficient to overturn the Secretary's determination. Yet Anderson was unable to pre- sent conclusive and thorough proof of the exact number of incor- rect invalidations made by the Secretary due to insufficient time. “Cumbersome election machinery can effectively suffocate the right of association, the promotion of political ideas and programs of political action, and the right to vote." Williams Rhodes, 393 U.S. 23, 39 (opinion of Douglas, J.); see id. at 32 (majority opinion). ‘The totality of the requirements placed on Anderson--the barriers :mposed upon him in seeking review of the Secretary's determination, taken together--necessitate a finding that he was denied a fair opportunity to present his case. His right of access to the ballot, and additionally voter-plaintiffs' right to cast their vote effectively for the 13/ candidate of their choice, was infringed. 13/ ghe infringement of these rights becomes magnified due to the peculiar nature of the electoral process for the office of President of the United States. Ordinarily in an election, a voter has the opportunity to write in the name of the candidate of his choice should such candidate not appear on the ballot. Inthe presidential election, however, it is electors for whom voters must vote, not the candidate himself. This fact effectively precludes a write-in vote for the office of President; only a very Zew voters would know to vote for the electors who represent the candidate of their choice, and a vote for the candidate himself is of no effect. See Williams v. Rhodes, 393 U.S. 23, 37 (1968) (opinion of Douglas, J.). In any event, however, "[tlo force a candidate to rely on write- ins is to burden him with disability." 1d. Piss 54Iv. Relief In accordance with this ruling, the court must ENJOIN the Secretary from the printing of ballots for the November general election without the names of Anderson and his electors thereon. If a means were available by which to afford Anderson a more reasonable length of time =o prepare his case against the Secre- tary! if the secretary vere willing to assune the burden of proving the insufficiency of Anderson's petition and then he did 50 prove, the court might consider lifting this injunction;~“/ Anderson clearly would not be entitled to a place on the ballot if the Secretary could show in a proceeding that afforded him his constitutional right to due process that head less than the 57,539 signatures necessary to qualify for nomination by petition. Jenness v. Fortson, supra. Not having been afforded this right at the present time, however, plaintiffs are entitled to the injunctive relief they seek So ORDERED, this 26th day of September, 1980. NEWELL seafet ol United States District Judge 13a) 132/ whe parties agreed at the hearing that this day, September 26th, was the last day the ballotscould go to the printer. 14/ cs. williams v. Rhodes, 393 U.S. 23, 35 (1968) (opinion of Douglas, J.) (confusion =hat would attend last-minute ballot changes, with attendant disruption of electoral process, re- quired allowance of the challenging political party to remain on the ballot). _-14- camera nemepe