                                                             PUBLISH




              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

               _____________________________________

                           No. 95-8230
               _____________________________________

                   D. C. Docket No. 1:94-CV-1298-ODE



WALKER L. CHANDLER; SHARON T. HARRIS; JAMES
D. WALKER,

                                           Plaintiffs-Appellants,

          versus


ZELL D. MILLER, Governor; MAX CLELAND,
Secretary of State of Georgia; JAMES G.
LEDBETTER, Commissioner Department of Human
Resources State of Georgia,

                                           Defendants-Appellees.


               ______________________________________

          Appeal from the United States District Court
              for the Northern District of Georgia
               _______________________________________
                          (January 22, 1996)


Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.


EDMONDSON, Circuit Judge:

     This case requires us to determine the constitutionality of

a Georgia statute requiring drug testing of political candidates

and nominees for state offices.    We hold that Georgia's rule
violates no federal constitutional provision and affirm the

district court's judgment.



                                     I.



     In 1990, the Georgia legislature enacted O.C.G.A. § 21-2-140.1

The offices to which the statute applies include, among others,

those of the Governor, Lieutenant Governor, Secretary of State,

Attorney General, the heads of several agencies, all state judges

in courts of general jurisdiction, and all state legislators.            Id.
§   21-2-140(a)(4).      Plaintiff-appellants     are     members   of   the

Libertarian Party seeking the offices of Lieutenant Governor,

Commissioner   of     Agriculture,    and   member   of    the   House    of

Representatives.

      As the language quoted in the margin indicates, anyone who

declines to take the test, or who tests positive, is basically

barred from holding office. Additional aspects of the drug-testing

scheme were outlined by the district court:          testing may, at the
option of the candidate, be performed either at an approved medical

testing laboratory or at the office of the candidate's physician.


      1
       O.C.G.A. § 21-2-140 provides:

      At the time a candidate for state office qualifies for
      nomination or election, each such candidate shall file
      a certificate . . . stating that such candidate has
      been tested for illegal drugs . . . and that the
      results of such test are negative. . . . No candidate
      shall be allowed to qualify for nomination or election
      to a state office unless he or she presents such
      certificate . . . .

                                     2
Laboratory    procedures   concerning    privacy    follow   the   Mandatory

Guidelines for Federal Workplace Drug Testing Programs, set out at

53 Fed. Reg. 11,979 (1988).        The test is designed to reveal the

presence or absence of the indicia of five illegal drugs.                 No

information unrelated to drug use is contemplated by the statute;

the test simply indicates that the candidate tested positive or

negative.

     The appellants' arguments comprise three identifiable claims.2

First, appellants argue the tests violate the Fourth Amendment

prohibition    on   unreasonable   searches   and    seizures.       Second,

appellants categorize the statute as affecting the Fourteenth

Amendment rights of candidates to run and of voters to choose them.

Third, they categorize their refusal to submit to the test as a

protected speech act that cannot, under the First Amendment, be the

basis for barring a candidate from the ballot.



                                   II.



     That the tests at issue are searches within the meaning of the

Fourth Amendment seems settled.          See Skinner v. Railway Labor


     2
      Appellants' brief refers to almost every right enumerated
in the Constitution. Many of these textual provisions are
touched on only in passing, with no citations of authority. The
district court focused exclusively on appellants' Fourth
Amendment claim, and Appellants asserted at argument here that
they chiefly advanced their First and Fourteenth Amendment
claims. We regard all federal constitutional arguments except
these (First, Fourth, and Fourteenth Amendments) as either
abandoned or without merit.


                                    3
Executives Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103

L.Ed.2d 639 (1989).    Like the test at issue in     National Treasury

Employees Union v. Von Raab , 489 U.S. 656, 109 S.Ct. 1384, 103

L.Ed.2d 685 (1989), this test "is not designed to serve the

ordinary needs of law enforcement."       489 U.S. at 666; 109 S.Ct. at

1391.     That is, the test is not designed to prosecute crime:       no

party before us contends otherwise.       Special needs are involved.

In this circumstance, the courts must "balance the individual's

privacy    expectations   against   the    Government's   interests   to

determine whether it is impractical to require a warrant or some

level of individualized suspicion in the particular context."         489

U.S. at 665-66, 109 S.Ct. at 1390-91.         Another federal appeals

court considering suspicionless drug testing has noted that "Von
Raab's balancing test is inherently, and doubtless intentionally,

imprecise.    The Court did not purport to list all of the factors

that should be weighed or to identify which factors should be

considered more weighty than others."       Willner v. Thornburgh, 928

F.2d 1185, 1187 (D.C. Cir. 1991).
     No federal court seems to have entertained a Fourth Amendment

challenge to a state law requiring testing of candidates for high

state office.    Thus we observe at the outset the special concerns

affecting the Von Raab balancing test where the state's interest is

in setting qualifications for its own officers.

     American history is especially important in a case like this

one; and the Supreme Court observed nearly a century ago:

     It is obviously essential to the independence of the
     States, and to their peace and tranquility, that their

                                    4
     power to prescribe the qualifications of their own
     officers . . . should be exclusive and free from external
     interference, except so far as plainly provided by the
     Constitution of the United States.

Taylor v. Beckham, 178 U.S. 548, 570-71, 20 S.Ct. 890, 898, 44

L.Ed.2d 1187 (1900); (cited in Gregory v. Ashcroft, 501 U.S. 452,

460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991)).                In the light

of this command, we regard the states as entitled to considerable

deference in the characterization of their own interests.

     Under the Skinner-Von Raab framework, the state's interest is

calculated mainly by reference to two factors:                     the level of

documented       evidence   of    a   past   problem   and   the    fundamental

inconsistency of drug use with the demands of the position.                   In

Skinner, the Court approved suspicionless drug testing where there
was a documented showing of widespread substance abuse among

employees in the position to be subjected to testing.               489 U.S. at

607, 109 S.Ct. at 1407-08.

     In Von Raab, the Customs office did not demonstrate a past of

drug abuse among the employees to be tested.             The Court approved

the search anyway, however, when confronted with evidence that
physical and ethical demands on customs agents were so great as to

render    drug    use   totally   incompatible    with   the   nature   of   the

position.    489 U.S. at 669-70, 109 S.Ct. at 1393.             Thus, because

Georgia has not argued that her elected officials have in the past

abused drugs, the issue on Georgia's interest is whether unlawful

drug use is similarly fundamentally incompatible with high state

office.

     We think that to ask this question is also to answer it.                The

                                         5
people of Georgia place in the trust of their elected officials

that which people value most highly:    their liberty, their safety,

their    economic   well-being,   ultimate   responsibility   for    law

enforcement, and so on.      The Supreme Court has recognized that

"drug abuse is one of the most serious problems confronting our

society today," Von Raab, 489 U.S. at 674, 109 S.Ct. at 1395, and

therefore has approved the drug testing of Customs officers in part

because "the national interest [in eradicating drug use] could be

irreparably damaged if those charged with safeguarding it were,

because of their own drug use, unsympathetic to their mission of

interdicting narcotics."    489 U.S. at 670, 109 S.Ct. at 1393.     That

said, it follows, even more forcefully, that those vested with the

highest executive authority to make public policy in general and

frequently to supervise Georgia's drug interdiction efforts in

particular must be persons appreciative of the perils of drug use.3

     3
      The Von Raab situation might be distinguished on the basis
that Congress can define the Customs Department's mission and
demand sympathy to that mission as a condition of employment,
whereas the executive officers here are members of a branch
coequal to the Georgia legislature. We regard this distinction
as involving a pure question of state law.
     Appellants asserted in their complaint that the testing
violates the Georgia Constitution, but the district court decided
no issues of state law. 28 U.S.C. § 1367 provides that the
district courts "may decline to exercise supplemental
jurisdiction over a claim" which they otherwise have power to
hear if "the claim raises a novel or complex issue of state law .
. . ." Id. The decision not to exercise supplemental
jurisdiction is reviewed for abuse of discretion. Faucher v.
Rodziewicz, 891 F.2d 864, 872 (11th Cir. 1990). In view of the
complex state constitutional issues presented here and the
interests of comity in this sensitive area of federal-state
relations, we cannot conclude the district court abused its
discretion. See, e.g., Grant v. Seminole County, Fla., 817 F.2d
731, 732 (11th Cir. 1987) (finding no abuse of discretion where
district court failed to explain dismissal of state claim,

                                   6
       But    drug    use   poses   significant   dangers   beyond    rendering

elected officials unsympathetic to drug interdiction efforts.                 The

nature of high public office in itself demands the highest levels

of honesty, clear-sightedness, and clear-thinking.                 For example,

the Lieutenant Governor is the President of the Senate and has

other executive duties posed by law; more important, though, the

Lieutenant Governor is to replace the Governor should the top

executive office become vacant.          O.C.G.A. § 45-12-7.       The Governor

must respond to state emergencies, id. § 45-12-30, and if necessary

call out the state militia.            Id. §§ 45-12-27; 45-12-28.          He can

direct state law enforcement agencies.            See O.C.G.A. §§ 35-3-8.1;

35-2-33(b).          The Governor has broad powers of appointment to

important      offices,      boards,   commissions,   and   so    forth.      See

generally id. § 45-12-50; see also Ga. Const. Art. I., § 2, par. 1

(Governor appoints members of State Board of Pardons and Paroles).

It goes without saying that clear judgment is imperative to the

position.      Likewise, members of the House of Representatives enact

laws of general applicability for the state, while the Commissioner
of Agriculture leads an agency with broad regulatory powers.                  See
generally id. § 2-2-7 (Commissioner of Agriculture); Ga. Const.

art.    III    (House       of   Representatives).      The      positions    are

particularly susceptible to the "risks of bribery and blackmail

against which the Government is entitled to guard."               Von Raab, 489


because "[e]xercising pendent jurisdiction over the claim would
have required the district court to decide a novel question of
state law . . ."). We also decline to decide the issues of state
law raised by appellants.


                                         7
U.S. at 674, 109 S.Ct. at 1395.    Simply put, the state's interest

in filling these positions with drug-free people is great.4

     Also, we note that our conclusion is strengthened by our

deferential reading of Georgia's appraisal of its own interests.

Evaluating the governmental interest is necessarily a policy-based

inquiry; and while the importance of electing officials whose

probity and judgment are unclouded by the use of unlawful drugs may

be self-evident to us, we--whatever our own views might be--would

be slow to disregard Georgia's appraisal of that need in the light

of cases like Taylor, supra, reminding us that a state's sovereign
interests are at stake.

     Against   Georgia's   interests   must   be   balanced   plaintiff-

appellants' privacy interests.    The Supreme Court in Skinner, 489

U.S. at 626, 109 S.Ct. at 1418, noted that drug tests "require

employees to perform an excretory function traditionally shielded

by great privacy," and Justice Scalia wrote in Von Raab that the

drug tests there were "particularly destructive of privacy and


     4
      Appellants contend that because the test is administered
after substantial notice, drug users may simply discontinue their
indulgence for a brief period before testing and, thus, defeat
the purpose of the test. They say the testing is just
ineffective. But, in balancing the Fourth Amendment interests,
there is no requirement that a search be the single most
effective one a legislature could design. Also, as the Supreme
Court noted in Von Raab, "addicts may be unable to abstain for
even a limited period of time, or may be unaware of the 'fade-
away effect' of certain drugs." 489 U.S. at 676, 109 S.Ct. at
1396 (citations omitted). Persons who would be caught by
Georgia's limited testing would seem to be people who are out of
control about drugs; these worst cases might be the most
dangerous in public office. The testing is not so ineffective as
to be unreasonable or irrational in itself.


                                  8
offensive to personal dignity."       489 U.S. at 680, 109 S.Ct. at 1398

(Scalia, J., dissenting).

      But, we think that the intrusion here is even less than that

approved in Von Raab.       Here, the test can be taken at the office of

the candidate's physician, whereas in Von Raab, the test had to be

taken in the company of an (auditory) observer employed by an

"independent       contractor."      Other     aspects   bearing   on   the

individual's interests are similar to those approved in Von Raab.

The     district    court    noted   that    federally-approved    privacy

guidelines, such as those at 53 Fed. Reg. 11,979           et seq. (1988),
serve as the benchmark for laboratory procedures. The test reveals

only the presence or absence of the indicia of the use of illegal

drugs.     The results are not made available to law enforcement

officers in the event a candidate chooses not to file them (if

taken through one's own physician, no state agent need know that

the test was administered).          And, much like the Customs agents

whose    privacy    expectations     are    diminished   because   physical

conditioning and ethical behavior are central to job performance,
see Von Raab, 489 U.S. at 679, 109 S.Ct. at 1398, candidates for

high office must expect the voters to demand some disclosures about

their physical, emotional, and mental fitness for the position.

      Because the governmental interests of the state of Georgia

outweigh the intrusions on privacy effected by the challenged

testing, we hold that O.C.G.A. § 21-2-140, as applied to the

appellants, does not violate the Fourth Amendment.




                                      9
                                          III.



      Appellants also contend that by barring from the ballot a

class of persons (those who refuse to take drug tests), the Georgia

legislature has violated the rights of the candidates to run for

office and the people to vote for whom they please.                         In their

briefs    and      at     argument,      appellants       indicated     they   would

characterize the Fourteenth Amendment as creating a nearly absolute

barrier to excluding a defined group of persons from the ballot.

The Supreme Court, however, has rejected that argument, most

recently in Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115
L.Ed.2d      410   (1991).       There,    the    Court    recognized    Missouri's

prerogative to exclude from the ballot most candidates for the

state judiciary over a mandatory retirement age of seventy years.

The Court acknowledged that when states bar a class of candidates

from the ballot, "the Equal Protection Clause provides a check on

such state authority," but cited Article IV, section 4 and the

Tenth Amendment for the proposition that
      our scrutiny will not be so demanding where we deal with
      matters resting firmly within a State's constitutional
      prerogatives. This rule is no more than a recognition of
      a   State's   constitutional   responsibility   for   the
      establishment and operation of its own government, as
      well as the qualifications of an appropriately designated
      class of public office holders.

501   U.S.    at   462,    111   S.Ct.    at     2402   (citations    and   internal

quotation marks omitted).

      Gregory guides us in our disposition of the appellants' equal

protection claim.            There, the Court held that rational basis


                                           10
scrutiny applies to state electoral qualifications not involving a

suspect classification.   501 U.S. at 470, 111 S.Ct. at 2406.   Under

rational basis scrutiny, courts "will not overturn such a statute

unless the varying treatment of different groups or persons is so

unrelated to the achievement of any combination of legitimate

purposes that we can only conclude that the legislature's actions

were irrational."   Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939,

943, 59 L.Ed.2d 171 (1979).

     Considering the importance of the mental, emotional, and

physical health of high public officials, we cannot conclude that

the Georgia legislature acted irrationally.      Also, the Georgia

statute creates less of a barrier than the one upheld in Gregory:
whereas Missouri judicial candidates past the mandatory retirement

age were permanently barred from the ballot, Georgia candidates are

only barred so long as they cannot (or will not) demonstrate that

they are drug-free.   Thus we hold that O.C.G.A. § 21-2-140 does not

improperly infringe on the rights of people to run and of voters to

choose the candidate of their choice.
                                IV.



     Appellants' First Amendment claim is based on their assertion

that the "refusal tamely to submit to the government's drug testing

edict is itself a protected free speech act similar in nature to

refusing to salute a flag or the king's hat set upon a post in the

village square."      We read this argument as an appeal to the

rationale of cases like Communist Party of Indiana v. Whitcomb, 414


                                 11
U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974), which invalidated a

state statute conditioning ballot access on the filing of an

affidavit      disavowing    the    overthrow       of    state        and    national

governments, and Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17

L.Ed.2d 235 (1966), which held that exclusion of a member of the

Georgia House of Representatives based on his stated opposition to

the Vietnam war violated the First Amendment. We think these cases

are distinguishable in that they involve pure speech acts, divorced

from unlawful conduct.

      In that respect, this case is more like United States v.
O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), where

the   court     upheld    against   a    First      Amendment      challenge         the

prosecution of a young man who burned his draft card, ostensibly in

an effort to persuade others to oppose the Vietnam War.                      There, the

Court stated, "[w]e cannot accept the view that an apparently

limitless variety of conduct can be labeled speech whenever the

person engaging in the conduct intends thereby to express an idea."

391 U.S. at 376, 88 S.Ct. at 1678.           The Court went on, however, to
entertain the "assumption that the alleged communicative element in

O'Brien's conduct is sufficient to bring into play the First

Amendment."        Id.    Against this backdrop, the Court held that

government regulation of conduct containing "speech and nonspeech"

elements      is   "sufficiently    justified        if   it      is     within      the

constitutional power of the Government; if it furthers an important

or substantial government interest; if the governmental interest is

unrelated     to   the   suppression    of   free    expression;        and     if   the


                                        12
incidental restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that interest."

391 U.S. at 377, 88 S.Ct. at 1679.

       Georgia's     drug-testing      statute       passes   muster   under   the

framework of O'Brien.          First, it is generally within the power of

the state of Georgia to prescribe qualifications for its elected

officials.       See Gregory, 501 U.S. at 463, 111 S.Ct. at 2402.

       Second,    the   statute      furthers    a    substantial   governmental

interest, as described in the Fourth Amendment analysis above.

       Third, the government's purpose is not suppression of free

expression.      The purpose, as we concluded above, is ensuring that

high    public     officials    to    whom    immense     responsibilities     are

entrusted possess the judgment, probity, and alertness required of

them.    Anyway, it is doubtful whether the statute has even the

effect, let alone purpose, of restricting speech rights.                 We think

an audience would much more clearly perceive the intended message

of one who burns a draft card than the message of one who declines

to take a drug test.      See generally Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 3069, 82 L.Ed.2d

221 (1984) (noting that First Amendment protection of conduct

depends on whether conduct "would reasonably be understood by the

viewer to be communicative").

       Fourth, the regulation is no more restrictive of expression

than is necessary. If Georgia's goal is to preclude the nomination

or election of people addicted to drugs then it must require,

rather than simply advise, that prospective candidates submit to


                                         13
testing.   Appellants have not suggested a less restrictive way for

Georgia to accomplish its stated objective of keeping drug users

out of office.    Therefore, we conclude that whatever impact the

Georgia statute has on speech does not violate the First Amendment.



                                 V.




     No party contends in this appeal that the drug testing in this

case is for normal law enforcement.       The controversy is about

Georgia's rights and the special need Georgia believes it has to

take a step to deter illicit drug users from filling important

state offices. Especially in the light of federalism and the Tenth

Amendment, we are cautious in interfering with the states on

matters central to their governance.5   O.C.G.A. § 21-2-140 does not

violate the First, Fourth, or Fourteenth Amendment rights of


     5
      By the way, Georgia publishes almost no official
legislative history. And, we do not accept an academic law
journal's summary of a post-enactment telephone interview (not
conducted under oath) with a single legislator (even one of the
sponsors of a bill) as competent legislative history. See, e.g.,
Blanchette v. Connecticut General Ins. Corps., 419 U.S. 102, 132,
95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974) (rejecting use of
"subsequent legislative history" because "[P]ost-passage remarks
of legislators, however explicit, cannot serve to change the
legislative intent . . . . Such statements represent only the
personal views of these legislators."). Nor do we -- on the
basis of such "history" -- accept that Georgia's drug testing law
is merely or chiefly symbolic, although that which is symbolic
may still have great significance. In their brief, plaintiff-
appellants cited to no such law review summaries; and we think
they -- given the lack of true legislative history available --
were right not to do so.


                                 14
candidates for high office in Georgia; we affirm the judgment of

the district court.6



     AFFIRMED.




     6
      We are aware that qualifying to run for the pertinent
public offices is only a few months away. We also recognize that
plaintiff-appellants will likely seek review of our decision.
For that reason, we have tried to be expeditious in announcing
the decision. Because speed seems important, we have perhaps not
said all that we could -- especially about history; but we think
we have said enough to indicate our general point of view.


                               15
