            Case: 13-11816   Date Filed: 01/06/2014   Page: 1 of 6


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                      __________________________

                             No. 13-11816
                         Non-Argument Calendar
                      __________________________

                   D.C. Docket No. 1:12-cv-01822-RWS

GREEN PARTY OF GEORGIA,
CONSTITUTION PARTY OF GEORGIA,

                                                           Plaintiffs-Appellants,

                                   versus

STATE OF GEORGIA,
SECRETARY, STATE OF GEORGIA,

                                                          Defendants-Appellees.

                      __________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     __________________________

                             (January 6, 2014)

Before TJOFLAT, JORDAN, and COX, Circuit Judges.

PER CURIAM:
                Case: 13-11816        Date Filed: 01/06/2014       Page: 2 of 6


       The Green Party of Georgia and the Constitution Party of Georgia (the

“Plaintiffs”) challenge in this appeal the district court’s order dismissing their

complaint for failure to state a claim upon which relief may be granted.1 Because

the district court erred by concluding that this case was indistinguishable from

controlling decisions we reverse the district court’s order and remand for further

proceedings.

                                   I. Procedural History

       The Plaintiffs filed this suit claiming that Georgia’s petition-signature

requirement for ballot access violates the First and Fourteenth Amendments of the

United States Constitution. To be listed on the ballot in Georgia, any presidential

candidates not affiliated with a political party recognized by Georgia must present

a petition with signatures from 1% of the total number of registered voters in

Georgia.2 The Georgia Secretary of State and the State of Georgia moved to




       1
          The State of Georgia contended in its motion to dismiss that it was immune from suit
under the Eleventh Amendment. (R. 4-1 at 14-15.) The Plaintiffs did not contest the State of
Georgia’s immunity in response. (R. 5.) The district court dismissed the action for failure to
state a claim without considering the State of Georgia’s immunity. (R. 10.) The Plaintiffs do not
dispute the State of Georgia’s immunity on appeal. (Appellant’s Br. at 3.) Because the State of
Georgia is immune from this suit under the Eleventh Amendment, we instruct the district court to
dismiss the State of Georgia from this action for want of jurisdiction on remand. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908 (1984).
       2
         Georgia classifies political organizations as either a “political body” or a “political
party.” To be a political party, the organization must have received at least 20% of the total vote
in an election for governor or president. OCGA §§ 21-2-2(23)–(25). While political parties
receive automatic ballot access, a political body must file a nomination petition signed by either
1% of the total number of registered voters for a statewide office (including the presidential
                                                2
                Case: 13-11816       Date Filed: 01/06/2014      Page: 3 of 6


dismiss this case contending that past decisions of the United States Supreme

Court and the United States Court of Appeals for the Eleventh Circuit have

conclusively resolved the issue. The Defendants referenced a number of cases

where a 5% petition-signature requirement for non-statewide ballot access was

upheld and reasoned that if a 5% requirement was constitutional, the lower 1%

requirement must also be constitutional. See, e.g., Jeness v. Fortson, 403 U.S. 431,

91 S. Ct. 1970 (1971); Coffield v. Kemp, 599 F.3d 1276 (11th Cir. 2010);

Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002). Though none of the cases

Georgia referenced considered ballot access for a presidential election, the district

court agreed with Georgia Defendants reasoning and dismissed the action for

failure to state a claim. The Plaintiffs appeal.

                                       II. Discussion

       We review de novo a motion to dismiss for failure to state a claim. Timpson

v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008).

       The Plaintiffs contend that the district court erred by concluding that this

case is indistinguishable from previous decisions upholding Georgia’s 5% petition-

signature requirement for non-statewide elections.             As the Plaintiffs note, we

previously addressed whether our past decisions upholding a 5% petition-signature




election) or 5% of the total number of registered and eligible voters for any other office. OCGA
§ 21-2-170.
                                               3
              Case: 13-11816     Date Filed: 01/06/2014      Page: 4 of 6


requirement preclude a challenge to a lower petition-signature requirement for a

presidential candidate and we concluded that our past decisions are distinguishable.

See Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985).

      To determine whether a ballot access law violates the First and Fourteenth

Amendments, we follow the approach laid out in Anderson v. Celebrezze, 460 U.S.

780, 103 S. Ct. 1564 (1983). Bergland, 767 F.2d at 1553. In Anderson, the Court

rejected “the use of any ‘litmus-paper test’ for separating valid from invalid

restrictions.” Id. (citing Anderson, 460 U.S. at 789, 103 S. Ct. at 1570). Rather, a

court must first “evaluate the character and magnitude of the asserted injury to

rights protected by the First and Fourteenth Amendments. Second, it must identify

the interests advanced by the State as justifications for the burdens imposed by the

rules. Third, it must evaluate the legitimacy and strength of each asserted state

interest and determine the extent to which those interests necessitate the burdening

of the plaintiffs' rights.” Bergland, 767 F.2d at 1553-54.

      In Bergland, the district court dismissed an action challenging Georgia’s

then 2.5% petition signature requirement for a presidential candidate. The district

court based its dismissal on our past decisions that upheld a 5% petition signature

requirement for other offices. We rejected this “litmus-paper test” approach and

held that our past decisions “do not foreclose the parties’ right to present the

evidence necessary to undertake the balancing approach outlined in Anderson.” Id.

                                          4
               Case: 13-11816    Date Filed: 01/06/2014    Page: 5 of 6


at 1554. Furthermore, a state’s interest in regulating a presidential election is less

important than its interest in regulating other elections because the outcome of a

presidential election “will be largely determined by voters beyond the State’s

boundaries” and “the pervasive national interest in the selection of candidates for

national office . . . is greater than any interest of an individual State.” Anderson v.

Celebrezze, 460 U.S. 780, 795, 103 S. Ct. 1564, 1573 (1983). Consequently, a

ballot access restriction for presidential elections “requires a different balance”

than a restriction for state elections. Bergland, 767 F.2d at 1554; see also McCrary

v. Poythress, 638 F.2d 1308, 1314 n.5 (5th Cir. 1981) (holding that the

constitutionally of Georgia’s ballot access law may be different as applied to a

presidential election).

      The same analysis we applied in Bergland also applies to this case. The

district court’s approach employs the type of “litmus-paper test” the Supreme

Court rejected in Anderson. See Anderson, 460 U.S. at 789, 103 S. Ct. at 1570.

And, the district court failed to apply the Anderson balancing approach.

                                   III. Conclusion

      Accordingly, we conclude that this case is distinguishable from our past

decisions and that the district court erred by dismissing the action against the

Defendants for failure to state a claim. We reverse the judgment of the district

court and remand for further proceedings consistent with this opinion. On remand,


                                          5
              Case: 13-11816     Date Filed: 01/06/2014   Page: 6 of 6


the district court should dismiss the action against the State of Georgia for want of

jurisdiction because it is immune from suit under the Eleventh Amendment.

      REVERSED AND REMANDED WITH INSTRUCTION.




                                         6
