           Case: 20-12107   Date Filed: 08/03/2020   Page: 1 of 15



                                                                     [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 20-12107
                       ________________________

                D.C. Docket No. 4:20-cv-00110-MW-MAF



INDEPENDENT PARTY OF FLORIDA,
PARTY FOR SOCIALISM AND LIBERATION,

                                                         Plaintiffs-Appellants,

                                  versus

SECRETARY, STATE OF FLORIDA, In Her Official Capacity,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (August 3, 2020)

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM and LUCK, Circuit
Judges.

WILLIAM PRYOR, Chief Judge:
              Case: 20-12107      Date Filed: 08/03/2020    Page: 2 of 15



      This appeal requires us to decide whether a Florida ballot-access law for

presidential elections complies with the United States Constitution. Decades ago,

we upheld a Florida law that required minor parties to submit a petition signed by

three percent of registered voters to access the ballot in statewide elections.

Libertarian Party of Fla. v. Florida, 710 F.2d 790, 792 (11th Cir. 1983). But

Florida now makes it easier for minor parties to gain access to the ballot. Under

current law, minor parties may access the presidential ballot either by satisfying a

one-percent signature requirement or by affiliating with a qualified national party.

Fla. Stat. § 103.021(4)(a)–(b). The Independent Party of Florida and the Party for

Socialism and Liberation seek to place their presidential candidates on the ballot in

Florida without satisfying either requirement. The district court denied their motion

for a preliminary injunction against the enforcement of these requirements. We

affirm because we conclude that the minor parties are unlikely to succeed on their

claims that the ballot-access requirements unconstitutionally burden their First

Amendment rights and deny them equal protection of the laws.

                                 I. BACKGROUND

      Florida offers minor political parties two ways to access the ballot in

presidential elections. If a minor party affiliates with a national party that

nominates candidates for President and Vice President at a national convention, the

minor party may have those candidates listed on the ballot by sending the


                                           2
              Case: 20-12107     Date Filed: 08/03/2020    Page: 3 of 15



Department of State a certificate naming the candidates. Fla. Stat. § 103.021(4)(a).

To qualify as a “national party,” a party must successfully register as a national

committee with the Federal Election Commission. Id. If a minor party does not

affiliate with a qualified national party, its candidates for President and Vice

President may appear on the ballot if the party submits a petition signed by one

percent of registered voters in Florida. Id. § 103.021(4)(b).

      This ballot-access regime has governed presidential elections in Florida

since 2012. Ten minor parties accessed the ballot using the affiliation method in

the 2012 election and four did so in 2016. Minor parties also accessed the ballot

using a similar affiliation method between 2000 and 2008. It appears that no party

has attempted to access the presidential ballot by the petition method since Florida

first adopted an affiliation method in 1999. The last time minor-party presidential

candidates accessed the ballot using the petition method was in 1996.

      The Independent Party of Florida and the Party for Socialism and Liberation

seek to place their presidential candidates on the ballot in the upcoming election.

The Party for Socialism and Liberation has already chosen its candidate for

President; the Independent Party of Florida is still in the selection process. Neither

party affiliates with a qualified national party. And neither party has complied with

the one-percent signature requirement, which they contend burdens their

constitutional rights.


                                           3
               Case: 20-12107     Date Filed: 08/03/2020    Page: 4 of 15



      The minor parties filed a complaint against the Florida Secretary of State

and moved for a preliminary injunction. They alleged that the one-percent

signature requirement is an unconstitutional restriction on their First and

Fourteenth Amendment rights. See generally Anderson v. Celebrezze, 460 U.S. 780

(1983); Burdick v. Takushi, 504 U.S. 428 (1992). They also alleged that Florida

violated the Equal Protection Clause by providing an alternative, easier method of

ballot access for minor parties that affiliate with a national party.

      The district court denied the motion for a preliminary injunction. It ruled that

the parties had standing to challenge the ballot-access measures but that they were

unlikely to succeed on the merits of their claims. The district court evaluated the

claims using the balancing test employed in Anderson, 460 U.S. 780, and Burdick,

504 U.S. 428, which requires courts to weigh the burdens imposed by an election

regulation against the state interests that justify the measure. It concluded that the

ballot-access law does not impose a severe restriction on First and Fourteenth

Amendment rights and that the State’s interest in requiring minor parties to prove a

modicum of state or national support before appearing on the ballot was sufficient

to justify the law.

                          II. STANDARDS OF REVIEW

       We review the denial of a preliminary injunction for abuse of discretion.

Horton v. City of St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001). We review


                                           4
               Case: 20-12107     Date Filed: 08/03/2020     Page: 5 of 15



any underlying legal conclusions de novo and any factual findings for clear error.

Id.

                                  III. DISCUSSION

      We divide our discussion in two parts. We first explain that at least one of

the minor parties has standing to challenge both ballot-access requirements. We

then explain that the district court correctly denied the motion for a preliminary

injunction because the parties are unlikely to succeed on the merits of their claims.

              A. The Party for Socialism and Liberation Has Standing.

      We must begin by ensuring that at least one plaintiff has standing under

Article III of the Constitution to challenge the ballot-access requirements. See

Jacobson v. Fla. Sec’y of State, 957 F.3d 1193, 1201 (11th Cir. 2020). To have

standing, a plaintiff must establish an injury in fact that is fairly traceable to the

challenged action of the defendant and likely to be redressed by a favorable

decision. Id. When a plaintiff seeks prospective relief to prevent a future injury, it

must establish that the threatened injury is “certainly impending.” Id. (internal

quotation marks omitted).

      The Party for Socialism and Liberation has standing. It has chosen its

candidate for President and seeks to place that candidate on the ballot in the

upcoming presidential election. The Secretary of State previously rejected the

party’s application for ballot access in the 2016 presidential election because it


                                            5
              Case: 20-12107     Date Filed: 08/03/2020    Page: 6 of 15



failed to comply with the statutory requirements, and the party has every reason to

believe the Secretary will continue to enforce those requirements in the upcoming

2020 election. The party will be injured if its candidate is denied access to the

ballot. See Swanson v. Worley, 490 F.3d 894, 903 n.10 (11th Cir. 2007). That

future injury is “certainly impending”—it will occur only months from now. And

because the party has neither affiliated with a qualified national party nor complied

with the one-percent signature requirement, its injury is fairly traceable to the

challenged ballot-access provisions, both of which the Secretary enforces. Fla.

Stat. §§ 20.10(1), 103.021(4)(a)–(b); see also Jacobson, 957 F.3d at 1211. Finally,

its injury could be redressed by an injunction forbidding the Secretary to deny the

party access to the ballot based on the challenged provisions. See Jacobson, 957

F.3d at 1208–09.

      The Secretary contends that the reasoning of Bernbeck v. Gale, 829 F.3d 643

(8th Cir. 2016), supports that the minor parties lack standing, but we disagree. In

Bernbeck a petition circulator alleged that he was injured by a signature-

distribution requirement for voter initiatives because the requirement allegedly

gave the signatures of voters in rural counties greater weight than other signatures.

Id. at 647, 648 n.4. The Eighth Circuit held that the petition circulator lacked

standing because he never attempted to collect or submit a single signature for the

initiative at issue and had no immediate plans to do so in the future. Id. at 648 &


                                           6
              Case: 20-12107      Date Filed: 08/03/2020    Page: 7 of 15



n.3. Without any efforts or imminent plans to collect signatures, the petition

circulator could not establish that any signatures were at imminent risk of being

unequally valued under the signature-distribution requirement. Id. at 648 & n.4.

Because the alleged injury in Bernbeck was not denial of access to the ballot but

instead a failure to value all signatures equally, the decision is inapposite.

         B. The District Court Correctly Denied a Preliminary Injunction.

      To obtain a preliminary injunction, a party must establish that it is

substantially likely to succeed on the merits; that it will suffer irreparable injury

absent an injunction; that the threatened injury to the movant outweighs any harm

the injunction would cause the opposing party; and that the injunction would not be

adverse to the public interest. Swain v. Junior, 961 F.3d 1276, 1284–85 (11th Cir.

2020). We can begin and end with the first requirement. Because the minor parties

failed to establish a substantial likelihood of success on their claims, the district

court correctly denied their motion for a preliminary injunction.

      In our Circuit, the balancing test of Anderson, 460 U.S. 780, and Burdick,

504 U.S. 428, “controls challenges to ballot access requirements.” Green v.

Mortham, 155 F.3d 1332, 1337 (11th Cir. 1998). This test applies whether a

plaintiff challenges a ballot-access requirement under the First Amendment or the

Equal Protection Clause of the Fourteenth Amendment. Fulani v. Krivanek, 973

F.2d 1539, 1542–43 (11th Cir. 1992).


                                            7
              Case: 20-12107     Date Filed: 08/03/2020    Page: 8 of 15



      Under this framework, the level of scrutiny we apply to a ballot-access law

depends on the severity of the burdens it imposes. Severe restrictions on ballot

access must be narrowly tailored to advance a compelling state interest. Grizzle v.

Kemp, 634 F.3d 1314, 1322 (11th Cir. 2011). But reasonable, nondiscriminatory

restrictions are usually justified by “a State’s important regulatory interests” in

conducting orderly elections. Id. (internal quotation marks omitted); see also

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (“Lesser

burdens . . . trigger less exacting review . . . .”). However severe the burden, we

must ensure it is warranted “by relevant and legitimate state interests sufficiently

weighty to justify the limitation.” Common Cause/Ga. v. Billups, 554 F.3d 1340,

1352 (11th Cir. 2009) (internal quotation marks omitted).

      We applied this framework to uphold an earlier version of Florida’s ballot-

access regime in 1983. Libertarian Party, 710 F.2d at 792–93. At that time, Florida

offered minor political parties only one path to the ballot: submitting a petition

signed by three percent of registered voters, which at the time amounted to 144,492

signatures. Id. at 792. We held that this requirement did not “unreasonably

encroach[] on ballot access” because Florida law alleviated the burden of gathering

signatures in several ways. Id. at 793–94. Voters could sign a petition regardless of

party affiliation, voting history, or whether they had previously signed a petition

for another minor party. Id. at 794. Florida law imposed no geographic-distribution


                                           8
              Case: 20-12107     Date Filed: 08/03/2020    Page: 9 of 15



requirements for collecting signatures, and parties could submit more signatures

than necessary to ensure that a petition contained enough valid signatures. Id.

Parties had 188 days to collect the required signatures, which “compare[d]

favorably” to other time limits courts had upheld. Id. And although Florida charged

10 cents per signature to verify petitions and did not allow the charge to be waived,

the law still was not “impermissibly burdensome as to cost.” Id. These burdens on

ballot access, we concluded, were justified by the State’s important interest in

ensuring that political parties have a significant modicum of support before

appearing on the ballot. Id. at 793.

      Florida’s current ballot-access regime is less restrictive than the one we

upheld in Libertarian Party, and it serves the same state interest. Minor parties

now have two ways to access the ballot: affiliating with a qualified national party

or satisfying a one-percent signature requirement. Fla. Stat. § 103.021(4)(a)–(b).

The current signature requirement is less onerous than the earlier one in both

relative and absolute terms: one percent of registered voters amounts to only

132,781 signatures instead of 144,492. Minor parties now have nearly four years to

collect the signatures instead of only 188 days. And Florida law now allows

election officials to waive the signature-verification fee upon a showing of need.

Fla. Stat. §§ 99.097(4), 103.021(4)(b). All the “alleviating factors that eased the

burden of gathering signatures in Libertarian Party”—and more—are present here.


                                          9
             Case: 20-12107     Date Filed: 08/03/2020   Page: 10 of 15



Swanson, 490 F.3d at 904. And Florida continues to invoke its well-established

interest in requiring candidates to “make a preliminary showing of substantial

support” before appearing on the ballot, an interest the signature requirement

plainly advances. Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986)

(internal quotation marks omitted); see also Libertarian Party, 710 F.2d at 793.

      Despite previously upholding a more restrictive ballot-access regime in

Florida, we still must consider whether any changed circumstances require a

different result under the Anderson-Burdick test. See Cowen v. Ga. Sec’y of State,

960 F.3d 1339, 1342 n.1 (11th Cir. 2020). After we decided Libertarian Party,

Florida added a second method for minor parties to access the ballot. In addition to

the petition method, minor parties may also access the ballot by affiliating with a

qualified national party—a party that nominates candidates for President and Vice

President at a national convention and successfully registers as a national

committee with the Federal Election Commission. Fla. Stat. § 103.021(4)(a). The

minor parties contend that the affiliation method renders the ballot-access regime

unconstitutional because it undermines the State’s asserted interest for the one-

percent signature requirement and treats minor parties differently based on whether

they choose to associate with a qualified national party. We are unpersuaded.

      The affiliation method does not undermine the state interest that justifies the

one-percent signature requirement. Together, the affiliation and petition methods


                                         10
              Case: 20-12107     Date Filed: 08/03/2020    Page: 11 of 15



serve the important state interest of limiting ballot access to presidential candidates

that have a modicum of support somewhere—either nationally or in Florida. The

minor parties contend that a State may not consider national support in setting

ballot-access requirements for presidential elections, but presidential elections

implicate a unique “national interest” because they are decided by voters from

across the nation. Anderson, 460 U.S. at 794–95. For this reason, States have “a

less important interest” in limiting ballot access in presidential elections than in

state and local contests. Id. at 795; accord Cowen, 960 F.3d at 1344. By providing

an additional method of ballot access for minor parties whose presidential

candidates have national support, Florida respects the “national interest” in

presidential elections. Anderson, 460 U.S. at 795. It has not undermined its interest

in requiring parties that have no demonstrated national support to prove some

modicum of support in Florida. That States have a lesser interest regulating ballot

access in presidential elections does not mean they have no interest.

      The minor parties dispute the premise that the affiliation method reliably

measures national support, but their own evidence belies this argument. The minor

parties submitted evidence that the Federal Election Commission will not grant

national committee status to a party unless it has placed candidates for President

and Congress on the ballot in several States and is organized across the United

States, both of which reflect national support.


                                           11
              Case: 20-12107     Date Filed: 08/03/2020    Page: 12 of 15



      To be sure, the minor parties also offered evidence that candidates of

qualified national parties do not always receive more votes in presidential elections

than other minor-party candidates. But a State’s proxy for measuring a modicum of

support need not be perfect, especially where the State seeks to balance “the desire

for liberal ballot access with the need to ensure that candidates achieve some

modicum of support.” See Rockefeller v. Powers, 74 F.3d 1367, 1382 (2d Cir.

1995). The district court did not err in concluding that the affiliation method

reasonably advances the State’s interest in granting ballot access to presidential

candidates with a modicum of national support.

      The minor parties also challenge the ballot-access law under the Equal

Protection Clause because it treats minor parties differently based on whether they

affiliate with a qualified national party. Only minor parties that affiliate with a

national party can avoid the one-percent signature requirement. Fla. Stat.

§ 103.021(4)(a)–(b). And the decision whether to affiliate may be based on the

exercise of associational freedoms. For example, the Independent Party of Florida,

true to its name, desires to remain independent and not associate with any national

party. The minor parties contend that subjecting them to a signature requirement

that does not apply to minor parties that affiliate with a national party denies them

equal protection of the laws.




                                           12
              Case: 20-12107     Date Filed: 08/03/2020     Page: 13 of 15



      We apply the Anderson-Burdick test to resolve equal-protection challenges

to a ballot-access requirement. Fulani, 973 F.2d at 1542–43. We first consider “the

character and magnitude” of the asserted denial of equal treatment. Id. at 1544

(quoting Anderson, 460 U.S. at 789). We then identify “the precise interests put

forward by the State” to justify its rule and determine “the legitimacy and strength”

of each interest. Id. at 1546 (quoting Anderson, 460 U.S. at 789). We conclude that

Florida’s goal of accounting for the national interest in presidential elections

justifies its decision to provide different paths to the ballot for minor parties that

affiliate with a qualified national party and those that do not.

      The minor parties’ asserted injury is that they “were forced to bear an

unequal burden in order to gain access to the ballot” based on the exercise of their

associational freedom. See id. at 1544. We agree that treating political parties

differently may impermissibly burden constitutional rights when no legitimate

reason exists for the distinction. In Fulani, for example, we held unconstitutional a

law that excluded minor parties from a fee-waiver provision because the State

failed to explain how its discriminatory treatment of minor parties advanced any

relevant state interest in regulating ballot access. Id. But the Supreme Court has

made clear that States may account for relevant differences among political parties

and candidates when regulating ballot access. See, e.g., Jenness v. Fortson, 403

U.S. 431, 441–42 (1971) (explaining that Georgia was not “guilty of invidious


                                           13
              Case: 20-12107     Date Filed: 08/03/2020     Page: 14 of 15



discrimination” by acknowledging “obvious differences” between established and

new political parties and “providing different routes to the . . . ballot” based on

those differences); accord Libertarian Party, 710 F.2d at 795.

      Florida’s interest in accounting for the national interest in presidential

elections justifies its decision to provide minor parties that affiliate with a qualified

national party a different path to the ballot. The presidential candidates of qualified

national parties are likely to appear on the ballot in multiple other States besides

Florida and to enjoy some level of national organization. In that respect, they are

not similarly situated to minor parties in Florida that have no proven national

support. Although the extent to which States must accommodate the national

interest in presidential elections is unclear, see Stein v. Ala. Sec’y of State, 774 F.3d

689, 691 (11th Cir. 2014), they are certainly permitted to account for this interest

by tailoring ballot-access restrictions for candidates with a modicum of national

support. And the burden this disparate treatment imposes on minor parties that do

not affiliate with a national party is not severe. As explained above, Florida has

provided them an alternative path to the ballot that is not overly burdensome. For

these reasons, we conclude that the provision of “different routes to the . . . ballot”

for differently situated minor parties is justified by sufficiently weighty state

interests. Jenness, 403 U.S. at 442; see also Common Cause/Ga., 554 F.3d at 1352.




                                           14
      Case: 20-12107   Date Filed: 08/03/2020   Page: 15 of 15



                       IV. CONCLUSION

We AFFIRM the denial of the motion for a preliminary injunction.




                                15
