Legal Library

No. 98-9347






LEWIS A. MASSEY, et al.,




National Voting Rights Institute
294 Washington Street, Suite 713
Boston, Massachusetts 02108
(617) 368-9100

Dennis C. Hayes, Esq.
Willie Abrams, Esq.
Office of General Counsel, NAACP
4805 Mt. Hope Drive
Baltimore, Maryland 21215-3297
(410) 486-9180

John Clark, Esq.
General Counsel, Georgia NAACP
P.O. Box 752
Elberton, Georgia 30635
(706) 283-9732
FAX: (706) 283-0659


1. Did the District Court err in dismissing plaintiffs' complaint on the ground that plaintiffs lack standing sufficient to support jurisdiction under Article III of the Constitution of the United States or under the Georgia Constitution?

1. Course of Proceedings and Disposition in the Court Below

Plaintiffs-appellants (hereinafter, "plaintiffs") filed this action in the United States District Court for the Northern District of Georgia on August 13, 1997. On November 24, 1997, plaintiffs filed an amended complaint deleting one, and adding two, individuals to the list of plaintiffs. Plaintiffs comprise individual Georgia voters, former and future candidates for state office in Georgia, and organizations whose members are voters actively dedicated to improving opportunities for poor and minority citizens in Georgia. Together, they allege that the State of Georgia operates an electoral process for state offices that excludes non-wealthy citizens from meaningful participation, thereby violating rights guaranteed to them by the First and Fourteenth Amendments to the Constitution of the United States and by the analogous provisions of Article I, Section 1 of the Georgia Constitution. Plaintiffs seek declaratory and injunctive relief enjoining the continued operation of the electoral process for Georgia state offices in a manner that deprives non-wealthy citizens of meaningful participation. Defendants are both houses of the Georgia Legislature, their respective presiding officer and speaker, and the Georgia Secretary of State.

Before filing an answer, defendants filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on January 13, 1998. On September 23, 1998, the District Court entered a judgment granting defendants' motion to dismiss the action, opining that plaintiffs have not suffered a concrete injury in fact as required to establish standing under Article III of the Constitution of the United States.

2. Statement of Facts

The state of Georgia organizes and operates elections for public office on a periodic basis. The electoral process in Georgia, including the activities of candidates and their supporters, exclusively serves a unique public function, namely the just constitution of representative self-government. See Flagg Brothers v. Brooks, 436 U.S. 149, 158 (1978). In this regard, the state sets the timing and form of primary and general elections, determines the qualifications of voters and candidates, and, most importantly, regulates the financing of campaigns. Ga. Code Ann. §§ 21-2-1 et seq. ("Georgia Election Code"); 21-4-1 et seq. ("Recall Act of 1989"); 21-5-2 et seq. ("Ethics in Government Act"). The state of Georgia does not provide any form of public financing for state senate campaigns. R-1-4-5 (¶ 25).

The facts surrounding recent election fund-raising and spending in Georgia reveal a stark and troubling development: access to wealth has become a precondition of participation in electoral politics. For example, with each new election cycle, it costs progressively more to run a viable campaign for the Georgia state senate. R-1-4-7 (¶ 36). Over the three election cycles from 1992 to 1996, winners of Georgia state senate seats raised an average of $56,530 per election. R-1-4-7 (¶ 37). In 1996 alone, winners spent on average over $68,000. R-1-4-7 (¶ 36). Most critically, money has become the prime determinant of electoral success. From 1992 to 1996, the candidates who spent more won 83% of the time. R-1-4-8 (¶ 41). Ninety-four percent of all winners either outspent their opponents or enjoyed the natural advantage of incumbency. In the rare instances where a candidate won while spending less than his opponent, such underspending winners still spent on average over half of what their opponents spent. In sum, one cannot compete in, much less win, an election in Georgia without spending on the same order of magnitude as one's opponent.

Over the past few decades, the Georgia electorate has increasingly relied on major media -- newspaper, television and radio -- as the exclusive sources of election-related information. See R-1-4-17-25 (¶¶ 100-08, 112, 118, 124, 126, 131, 134, 138, 139, 143, 156, 157).[1] Multi-media advertising has replaced traditional forums of public debate as the method to communicate campaign speech. See e.g. R-1-4-24 (¶ 157). Accordingly, candidates who wish to communicate campaign messages to the public must amass funds sufficient to purchase substantial media advertising. R-1-4-17-28 (¶¶ 100-108, 112, 118, 124-126, 131, 134, 138, 139, 156, 157, 169, 182). The need for funds becomes most acute in the critical weeks before an election when candidates may be forced to respond to misinformation or accusations made by their opponents. Without money, candidates cannot hire campaign staff or organize a media campaign to speak to a critical mass of the electorate. Id.

Most importantly, since one cannot participate meaningfully in Georgia politics without money, the ability to raise money has itself become the primary criteria for evaluating a prospective candidacy. If a candidate for state office in Georgia fails to raise money on roughly the same order of magnitude as her opponent, she stands almost no chance of winning the election. R-1-4-19-28 (¶¶ 118, 124, 182). Accordingly, donors are less willing to give money to a candidate whom they perceive will be vastly outgunned by well-financed opponents. In keeping with this anti-competitive trend, the average campaign fund of winning candidates has increased by thirty-two percent (32%) from 1992 through 1996. R-1-4-7 (¶ 38). Over this same period, the average campaign fund of unsuccessful nominees has decreased by forty-eight percent (48%). R-1-4-7 (¶ 39). Hence, the funding advantage of winners over their vanquished counterparts has increased, over the span of only three election cycles, from a fifty-five (55%) lead to a three hundred and twenty-four percent (324%) advantage. R-1-4-7 (¶ 40).

Money is not only a prerequisite of participation in the Georgia electoral process, it also carries a corresponding influence in the policies and practices of the state's elected representatives. R-1-4-14, 27 (¶¶ 79, 173). Substantial campaign contributions by persons or entities with interests in legislative outcomes undermine the integrity of the state government by increasing the public perception of corruption. R-1-4-12 (¶ 64). The exclusion of nonwealthy citizens from Georgia politics is manifest not only in their persistent inability to nominate and elect candidates to represent their interests, R-1-4-14-29 (¶¶ 74, 109, 113, 119, 127, 132, 144, 161, 165, 166, 172-174, 176-178, 183-187), but also in the candid admissions of elected representatives that they tend to give ear only to those who contribute funds to their campaigns. R-1-4-14, 27 (¶¶ 79, 173).

Other facts complete the picture of Georgia's wealth-dominated political system: over two thirds of all funds raised in Georgia state senate campaigns from 1992 through 1996 came in the form of donations over $500. R-1-4-10 (¶ 54). Roughly half of this sum (one third of the total fundraising) comes from a group of individuals that comprise less than three one-hundredths of one percent (.03%) of the state population. R-1-4-10 (¶ 59). The remainder of these large donations come from businesses and political action committees. R-1-4-9-10 (¶¶ 50-59). While the median income of the average campaign contributor in Georgia is roughly $100,000, the median household income in Georgia is slightly over $29,000. R-1-4-5,10 (¶¶ 23, 58). Accordingly, one $500 campaign contribution represents over 1.72% of the median household income in Georgia while that same amount is only .5% of the average contributor's income. Clearly, the burden of supporting a viable political candidate falls more heavily on lower income citizens. When one takes account of the question of disposable income and other real-world concerns, it becomes clear that the wealth primary[2] radically constrains the ability of low income persons to participate meaningfully in Georgia elections. For the 12.2 percent of the voting age population who live below the poverty level, participation, and accordingly representation, are little more than a dream. See R-1-4-5 (¶ 24).

The state of Georgia requires disclosures and otherwise regulates campaign contributions "in furtherance of its responsibility to protect the democratic process and to ensure fair elections for constitutional offices". Ga. Code Ann. § 21-5-2. For example, Georgia limits contributions to state senate candidate campaigns, but provides exemptions for loans to candidates made in the normal course of business. Ga. Code Ann. § 21-5-42(c) (1996).[3] Thus, Georgia law permits wealthy, i.e. creditworthy, candidates effectively to circumvent whatever restraints the contribution limits normally impose. R-1-4-24 (¶ 154). Georgia law also allows candidates to carry forward unused funds from one campaign cycle to the next. R-1-4-8, 24 (¶¶ 44, 152). Georgia law thus facilitates the preservation of incumbents' and successful fundraisers' funding advantages, which may not reflect contemporaneous popular support.[4] The campaign war chests maintained by incumbents and successful fundraisers impose a substantial in terrorem disincentive on citizens who would challenge well-funded candidates and on supporters who would contribute money to such challengers. R-1-4-8, 24, 26, 29 (¶¶ 43, 150, 171, 184). As a result of the Georgia fundraising regime, close to half of the state senate races were uncontested over the three election cycles from 1992 through 1996.

The Constitution of Georgia does not permit the adoption of legislation through ballot initiatives. R-1-4-5 (¶ 25). Incumbent legislators and successful candidates under the current regime, the direct and intended beneficiaries of the wealth primary, will not dismantle the system that elects them to office. Accordingly, plaintiffs have no legislative recourse to remedy the unconstitutional exclusion of non-wealthy citizens from meaningful participation in Georgia elections.

3. Scope of Review

The issue presented in this appeal involves plenary review of whether the District Court applied the correct legal standards in evaluating the plaintiffs' standing to bring suit. Plaintiffs assert that, if the correct legal standards are applied, they have made a sufficient showing to establish their standing under the case or controversy requirement of Article III of the Constitution of the United States as well as the under the Georgia Constitution. Accordingly, plaintiffs contend that the District Court's judgment must be reversed because of its legal errors.

"Whether appellants have standing to bring suit constitutes a legal issue subject to de novo review." Wilson v. State Bar of Georgia, 132 F.3d 1422, 1427 (11th Cir. 1998) (citation omitted). This Court reviews dismissals pursuant to Fed. R. Civ. P. 12(b)(6) de novo "taking all material allegations of the complaint as true while liberally construing the complaint in favor of the plaintiff." Ellis v. GMAC, 160 F.3d 703 (11th Cir. 1998) (citing Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998). "A court may dismiss a complaint 'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations'." Id. (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).


Plaintiffs have standing to pursue their claims under both the federal and state constitutions. Voters excluded from an integral part of the electoral process have standing to seek judicial relief from such exclusion. Plaintiffs -- a group of voters, candidates, experienced politicians, and civic organizations dedicated to protecting the rights of nonwealthy and minority citizens -- have alleged with specificity their exclusion from Georgia state senate elections by virtue of the dominance of wealth in controlling the viability of senate election campaigns. In particular, plaintiffs have experienced the inability to communicate and receive campaign speech sufficient to allow meaningful participation in the electoral process.

The Supreme Court has long recognized that a state may not maintain an electoral system that excludes certain voters on the basis of wealth. In Terry v. Adams, 345 U.S. 461 (1953), Bullock v. Carter, 405 U.S. 134 (1972), Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), and Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), the Court recognized the concrete and particularized harm caused by exclusion from an integral part of the electoral process. Notably, plaintiffs in this case would have had to raise well over five times the amount of the highest filing fee struck down in Bullock in order to compete for a seat in the Georgia state senate.

The Supreme Court has also admonished federal courts to examine alleged abridgements of voting rights in a realistic light, looking at the totality of the state's laws for unconstitutional conditions. Anderson v. Celebrezze, 460 U.S. 780 (1983); Williams v. Rhodes, 393 U.S. 23 (1968). The district court ignored the gravamen of the plaintiffs' complaint by falsely characterizing it as a claim of right to electoral success. In fact, plaintiffs allege that they are excluded from meaningful participation in an integral part of the electoral process. The dominating influence of wealth in electoral politics amounts to a "wealth primary" that limits access to political participation. The exclusion of nonwealthy citizens from the wealth primary, which has become integral to the operation of campaigns, denies plaintiffs their constitutional rights to equal protection and free association. By sanctioning and exacerbating the wealth primary system, Georgia denies nonwealthy citizens a meaningful opportunity to participate in elections, which in present-day Georgia requires more than simple access to the ballot box. Plaintiffs cannot compensate for a lack of funding through hard work when faced with the massive campaign war chests of their opponents. The realities of present-day Georgia politics simply do not allow candidates to spread their campaign message, or respond to opponents' claims, without substantial amounts of money.

Relying on Terry, Morse, and Bullock, the district court concluded that plaintiffs have not suffered an injury in fact because they are not completely deprived of their ability to cast a ballot. The district court's conclusion, however, reflects clear legal error, because in none of those cases was anyone deprived of the vote. Nor, as defendants argued below, are plaintiffs required to prove that they would have won elections absent the barrier posed by wealth in order to have standing to challenge its constitutionality.

Voters who suffer a debasement of the value of their vote have standing to challenge the electoral practices that cause that debasement. The dominant influence of wealth in state politics excludes nonwealthy citizens from effective representation and allows wealthy contributors to exert disproportionate influence in legislative and executive policies. Plaintiffs' associational rights are also infringed by the state's sanction of wealth-dominated elections. Nonwealthy candidates and their prospective supporters are deterred from political participation by the amount of money needed to run a viable campaign, thereby depriving the electorate of the viewpoints of nonwealthy citizens.

Misapprehending the Supreme Court's holding in Terry, the district court incorrectly concluded that plaintiffs' injuries are not traceable to the state of Georgia. As Terry instructed, state ratification of a discriminatory, private pre-primary selection process is itself discriminatory and unconstitutional. Georgia's state action also mirrors that of Tennessee in Baker v. Carr, 369 U.S. 194 (1962), which failed to respond to changing circumstances that placed certain voters in a position of constitutionally unjustifiable inequality with respect to other voters. Additionally, plaintiffs have alleged numerous ways in which Georgia sanctions and exacerbates the exclusionary operation of wealth in state elections, including exemptions for loans to candidates, unlimited carryovers from one election to the next, and unlimited corporate contributions.

Plaintiffs' injuries are likely to be redressed by a favorable decision because the court has the authority to declare violations of federal law in state electoral practices and plaintiffs have identified numerous effective remedies. At this stage in the pleading, plaintiffs are not required to do more than demonstrate the likelihood of adequate redress.

Intervention to protect citizens' constitutional rights enjoys its most solid justification in precisely this situation, where plaintiffs allege injuries stemming from exclusionary electoral practices that incumbent legislators will not remedy because of their interest in the status quo. The specific and exhaustive allegations in the plaintiffs' complaint, which must be taken as true for the purposes of defendants' motion to dismiss, establish their standing to bring suit under both the federal and state constitutions. The district court's decision to the contrary should be reversed.


Plaintiffs have standing under Article III of the United States Constitution to be heard on the merits of their claim (1) if they suffer an injury in fact, defined as a concrete and particularized harm; (2) if there is a causal connection between the injury and the conduct complained of; and (3) if it is likely that the injury will be redressed by a favorable decision. See FEC v. Akins, 118 S. Ct. 1777, 1998 U.S. LEXIS 3567, 141 L. Ed. 2d 10 (1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Plaintiffs satisfy all three elements in this case.

The "gist of the question of standing" is whether the plaintiffs have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of the issues". Baker v. Carr, 369 U.S. 194, 204 (1962). Plaintiffs' personal stake in the outcome of this litigation could not be more weighty, as they have alleged substantial and systematic impairment of their "most basic of political rights". Akins, 1998 U.S. LEXIS at *25.

A. Plaintiffs Suffer an Injury in Fact

1.  Plaintiffs Suffer an Injury in Fact as Voters and Candidates Excluded from an Integral Part of the Electoral Process.

Voters excluded from an integral part of the electoral process have standing to seek judicial relief from such exclusion. In Terry v. Adams, 345 U.S. 461 (1953), the Supreme Court addressed a constitutional challenge by African-American voters to the pre-primary endorsement process of a wholly private entity, the Jaybird Association. The Association's private nominating process was not governed by state or federal laws and did not use state or federal elective machinery or funds. The Supreme Court nevertheless ruled that the Association's nominating process unconstitutionally infringed African Americans' right to vote, because the Association's private nominating process had come to determine, as a practical matter, which candidates could win the Democratic primary. Because the "Jaybird primary" had become "an integral part . . . of the elective process that determines who shall rule and govern. . .," the state could not allow certain voters to be excluded from it, despite the fact that the state did not participate in its operation. Id. at 469. Justice Clark, in his concurring opinion, wrote that "any 'part of the machinery for choosing officials' becomes subject to the Constitution's restraints," even if it takes "the form of 'voluntary association' of unofficial character." Id. at 481 (quoting Smith v. Allright, 321 U.S. 649 (1944)).

Recently, the Supreme Court reiterated the principle first articulated in Terry that exclusion from an integral part of the election process, "does not merely curtail [voters'] voting power, but abridges their right to vote itself." Morse v. Republican Party of Virginia, 517 U.S. 186, 207 (1996). In Morse, the Court held that Section 5 of the Voting Rights Act of 1965, 42 U.S.C. §1973(c), applied to Virginia Republican Party fee requirements for participating in a nominating convention. Significantly, the Court stated that Section 5, "'like the constitutional provisions it is designed to implement, applies to all entities having any power over any aspect of the electoral processÖ'" Morse, 517 U.S. at 204 (quoting United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 118 (1978))(emphasis added); see also Jamin Raskin and John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol'y Rev. 273 (1993); R-1-4-1 (¶ 1).

The Supreme Court has long recognized the "real and appreciable impact on the exercise of the franchise" that voters face under a system that excludes certain candidates on the basis of their lack of wealth. Bullock v. Carter, 405 U.S. 134, 144 (1972). In Bullock, the Court struck down filing fees ranging from $150 to $8,900 that Texas required primary candidates to pay to their political parties. The Court found that "the very size of the fees imposed under the Texas system [gave] it a patently exclusionary character." Id. at 143. By precluding prospective candidates without wealth from seeking office, the fees violated the equal protection rights of both voters and candidates. In particular, the fees limited voters' choices of candidates and burdened less affluent voters more heavily. As the Court noted, "Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support." Id. See also Harper v. Virginia State Board of Elections, 383 U.S. 663,666 (1966) (striking down a $1.50 poll tax in Virginia state elections). Notably, as state senate candidates facing the wealth primary system, plaintiffs Sherrod, White and Peevy would have needed to raise well over five times the amount of the highest filing fee in Bullock in order to have what it takes, on average, to win a seat in the Georgia State Senate today ($56,530). R-1-4-7, 16, 20, 22, 24 (¶¶ 37, 96, 126, 137, 149).

As in Terry and Morse, the private, non-governmental use of money in Georgia state senate campaigns has become an integral part of the machinery of the electoral process. The wealth primary process is not directly dictated by state law and does not use official state instumentalities for funds. Nonetheless, Georgia sanctions private financial competition as the method of selecting candidates for office by ratifying the results of elections conducted under a wealth primary regime. See Morse, 517 U.S. at 202. Furthermore, as discussed more fully below, Georgia's exemptions to the contribution laws favor the wealthy, thereby exacerbating the disproportionate influence of wealth in elections. The candidates who win the wealth primary almost invariably win the state senate primary and the general election. The exclusion of plaintiffs from an integral part of the electoral process constitutes a concrete and particularized harm recognized by the courts in Terry, Bullock, Harper and Morse.

In other voting rights contexts, the Supreme Court has admonished federal courts to "examine in a realistic light the extent and nature of [candidate restrictions'] impact on voters". Anderson v. Celebrezze, 460 U.S. 780, 786 (1983) (citing Bullock). Courts must determine whether "the totality of the [state's] restrictive laws taken as a whole imposes a[n unconstitutional] burden on voting and associational rights." Williams v. Rhodes, 393 U.S. 23, 34 (1968). Plaintiffs at bar have no alternative to competition in the wealth primary. Given the spiraling costs of conducting viable campaigns, plaintiffs cannot respond to, much less overcome, media blitzes launched by well-funded opposition through hard work and determination. R-1-4-19, 22-24, 26 (¶¶ 118, 138-140, 143, 156, 169). Consequently, plaintiffs' electoral choice is ultimately limited to those who have wealth or access to wealth. R-1-4-15, 18-23, 26-28 (¶¶ 88, 109, 113, 119, 127, 132, 144, 166, 172, 176-178). The court must examine these abridgements of voting rights in a realistic light.

It is "unnecessary to support with citations the observation that, where a fundamental right is involved, slight discrimination is considered invidious." Goforth v. Poythress, 638 F.2d 27, 29 (5th Cir. 1981); see also Turner v. Fouche, 396 U.S. 346 (1970) ("appellants and the members of their class do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications"). [5] As nonwealthy voters and as state senate candidates, the individual plaintiffs have suffered concrete abridgement of their fundamental voting rights by their exclusion from an integral part of the process for choosing Georgia state senators. As noted above, 83% of all winning candidates for the state senate over the last three election cycles have won election only by winning the wealth primary ó that is, by amassing and spending more campaign funds than their opponents. R-1-4-8 (¶ 41). In this money-dominated system, plaintiff candidates and their supporters could not run competitive state senate campaigns, much less reach like-minded voters with their electoral message.

The district court, and the appellees in their briefs below, mistakenly claim that plaintiffs are asserting a 'right' to electoral success. R-1-5-17; R-1-13-4, 7; R-1-18-3-5. By thus mischaracterizing the plaintiffs' claims, the district court has ignored the gravamen of the systemic injury they suffer, namely a substantial and persistent abridgement of their fundamental right to participate in self-government. Plaintiffs do not seek a guarantee of success; rather, they seek a right to meaningful participation. An apt analogue to the state's sanction of the wealth primary would arise if the state were to arrange for the election of senators through tennis matches. In this analogy, the state serves as only as a referee, enforcing rules of play and ratifying the results of the competition. The plaintiffs at bar, however, cannot afford a racquet. Though they are technically allowed onto the court to 'compete', the balls whizzing past them prove that they have no meaningful opportunity to do so.

Plaintiffs are not complaining of persistent defeat in private competitions, for the electoral 'matches' at issue in this lawsuit serve a grave and constitutionally unique function. In a just system of elections, the state cannot deny any citizen a qualitatively sound opportunity to perform the basic tasks that are integral to participation. Plaintiffs allege in their complaint, and stand ready to prove at trial, that electoral participation in present-day Georgia requires more than simple access to the ballot box. It requires money. By failing to provide a basic minimum of public financing, or otherwise to stem the exclusionary influence of wealth in elections, Georgia sanctions the exclusion of nonwealthy citizens from government and substantially injures their fundamental rights.

In his 1996 campaign for Senate District 12, Plaintiff John White had the benefit of name recognition as a long-time state representative, and conducted intensive grass-roots campaigning with the assistance of dedicated volunteers. However, with campaign funds of $16,000, Mr. White was precluded from running television advertising, could not employ any paid campaign staff, and was unable even to purchase one full-page advertisement in a newspaper published in his district. He simply could not convey his electoral message to the voters so as to compete effectively against an opponent who had over $300,000 to spend on his campaign. R-1-4-16-22 (¶¶ 92-125, 128-132); see also R-1-4-20-23 (¶¶ 126-127, 133-140) (detailing similar experiences in Plaintiff Charles Sherrod's 1992 campaign in same district). Plaintiff Jerry Lynn Peevy, who had substantial political experience before running as a candidate for Senate District 48 in 1994, also could not afford paid campaign staff and lacked the ability to get her message to voters in a system dominated by big-money spending for television and other mass media. Indeed, prospective supporters advised Ms. Peevy that they saw no point in contributing to her campaign because she could not match her opponent's huge expenditures. R-1-4-24 (¶ 150).

The voter plaintiffs who supported Mr. White, Mr. Sherrod, and Ms. Peevy saw that no matter how hard they and other volunteers worked, they could not make up for their candidates' lack of campaign funds. They organized community meetings, distributed campaign literature, participated in get-out-the-vote efforts, and/or assisted in Mr. White's campaign bus tour across the multi-county district, but these efforts were futile to counteract the lack of large funds for campaign spending. These voter plaintiffs were simply unable to participate in the wealth primary which effectively determines who can run a viable state senate campaign. R-1-4-16-23 (¶¶ 91-144). Furthermore, potential candidates such as plaintiff Suzanne Britt have been deterred from running for state senate because of the requirement of substantial wealth or access to wealth to run a competitive campaign. R-1-4-26 (¶¶ 167-171).

The district court concluded that plaintiffs have not "suffered a cognizable injury in fact" because theirs is not "a case of outright prohibition of voting rights, such as occurs where state action completely deprives a voter of her vote." R-1-18-3. Though the district court cited Terry, Morse, and Bullock in support of this conclusion, none of those cases involved a complete deprivation of the franchise. In Terry, no one was prevented from voting in the general or primary elections, yet the Court deemed the challenged conduct (a private, exclusionary pre-primary selection process) an unconstitutional impairment of fundamental voting rights. Similarly, in Morse, no one was prevented from voting in general or primary elections, yet a plurality of the Court found that a nominal fee charged to delegates who wished to vote in a pre-primary nomination process abridged their fundamental voting rights. Lastly, in Bullock, no one was prevented from voting in any election, yet the Court decided that candidate filing fees were a "patently exclusionary" violation of fundamental rights in the absence of an alternative procedure for those unable to pay.

By ignoring the facts of these critical precedents, the district court reached a clearly erroneous conclusion regarding plaintiffs' standing to bring suit. Plaintiffs do suffer a substantial, cognizable injury to their fundamental voting rights because, as in Terry and Morse, private actors operate an exclusionary, integral part of the electoral process that effectively "abridges [plaintiffs'] right to vote itself". Morse, 517 U.S. at 207. As in Bullock, the state's failure to provide an alternative procedure allowing those of modest means to nominate and vote for candidates of their choice causes a growing and irreparable injury to plaintiffs' fundamental right to participate in our democracy.

Appellees argued below that plaintiffs lack standing because their chosen candidates would not be assured of electoral success under a reformed system. See R-1-5-5. Plaintiffs, however, need not make such a showing to establish standing to sue. As the Supreme Court held in Northeastern Florida Contractors v. City of Jacksonville, Florida, 508 U.S. 656 (1993), plaintiffs asserting an equal protection violation have standing to challenge a barrier that makes it more difficult for them to obtain a particular benefit, whether or not they can demonstrate that they ultimately would have been successful absent the barrier. Id. at 666 (holding that members of contractors' association had standing to challenge minority set-asides without proving their bids would have been successful, because "the ëinjury in fact' is the inability to compete on an equal footing in the bidding process").

Like the plaintiffs in Northeastern, who alleged that they regularly bid on contracts and wished to bid on an equal basis with other contractors, plaintiffs here have alleged that they regularly run or vote in elections for Georgia state senators and wish to participate free of the barriers imposed by the wealth primary. R-1-4-3-4, 13-16, 18-19, 21, 23, 25-29 (¶¶ 5-13, 67, 71, 74, 80, 89, 91, 109, 113, 127, 132, 144, 161, 165, 171, 172, 176, 178, 180-182, 185). The "injury in fact" for standing in this case is the denial of equal political opportunity resulting from the exclusionary wealth primary process, not the ultimate inability of plaintiffs to achieve success at the polls. Just as the plaintiffs in Terry v. Adams were not required to prove that their chosen candidates would win under an open nominating process, so plaintiffs here are not required to shoulder such a burden to establish their standing to sue. Plaintiffs' allegations regarding electoral outcomes, R-1-4-5-12 (¶¶ 25-63), demonstrate only that access to wealth has become a precondition of meaningful participation in the Georgia electoral process; they do not constitute a demand for guaranteed electoral success. If, as the complaint alleges, non-wealthy citizens cannot serve as, support, or hear campaign speech from candidates representing their own interests, they cannot meaningfully participate in electoral competition. Plaintiffs simply request remedial measures that will overcome their current exclusion from the opportunity to support a viable, competitive campaign for those lacking wealth or access to wealth.

2. Plaintiffs Suffer an Injury in Fact as Voters Whose Right to Vote is Undermined and Debased by the Exclusionary State Senate Campaign Finance System.

Voters who suffer a debasement of the value of their vote have standing to challenge electoral practices that cause such debasement. As the Supreme Court held in recognizing the standing of qualified voters to bring an equal protection challenge to malapportioned legislative districts in Baker v. Carr:

[i]t would not be necessary to decide whether [the Plaintiffs'] allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it. They are asserting "a plain, direct and adequate interest in maintaining the effectiveness of their votes..."

369 U.S. 186, 208 (1962) (citation omitted). See also Reynolds v. Sims, 377 U.S. 533, 555 (1964) ("the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise"). An exclusionary electoral practice also causes a justiciable injury if it "substantially disadvantages certain voters in their opportunity to influence the political process effectively." Davis v. Bandemer, 478 U.S. 109, 132 (1986) (claims of political gerrymandering were justiciable based on principle that equal protection forbids arranging the electoral system "in a manner that will consistently degrade...a group of voters' influence on the political process as a whole," id. at 124, 132).

Here, each individual plaintiff is a registered voter residing in a Georgia state senate district who alleges that the value of his or her vote is undermined and diluted by the overwhelming dominance of wealth in controlling the election of state senators from their districts. The necessity for state senate candidates to raise vast sums of money to compete for public office means that wealthy contributors and interests exercise hugely disproportionate influence over the election process as compared to citizens such as the plaintiffs, who are unable to make large contributions. The operation of the wealth primary also leaves plaintiffs unable to command legislative attention to their interests as low and modest-income voters. See R-1-4-14, 27 (¶ 79) (members of plaintiff Georgia Citizens' Coalition on Hunger have been told by state senators that serious consideration is given only to those with money to contribute; (¶ 173) (legislators' dependence on contributions from wealthy interests consistently frustrates lobbying efforts on behalf of low-income citizens); see generally R-1-4-10-12, 29 (¶¶ 60-64, 183-187).

Though plaintiffs are allowed to cast votes, the natural weight of those votes is systematically debased by the fact that all viable candidates, by definition, are beholden to their financial backers and are thus unlikely to represent the interests of those unable to support them. Plaintiffs seek to "maintain[] the effectiveness of their votes" through their challenge to Georgia's wealth primary. Baker, 369 U.S. at 208 (citation omitted). Thus, each has standing to sue.

3. Plaintiffs Suffer an Injury in Fact as Voters and Candidates Denied their First Amendment Right of Association.

In striking down Ohio's statutory scheme which erected numerous barriers to gaining a ballot place for George Wallace in the presidential primary, the Supreme Court's decision in Williams v. Rhodes, 393 U.S. 23 (1968), cited the burden that such laws imposed upon "the right of qualified voters,

regardless of their political persuasion, to cast their votes effectively." Id. at 31. That is, laws which deny groups "the fruits of their association ó the political impact ó run afoul of the First Amendment no less than ones which preclude association itself." L. Tribe, American Constitutional Law at 1103. See also Dixon v. Maryland State Administrative Bd. Of Election Laws, 878 F.2d 776 (4th Cir. 1989) ($1.50 fee to include write-in candidates on list of official candidates and to publish votes received violated voters' rights to cast effective vote).

The necessity of huge expenditures to conduct a Georgia state senate campaign deters candidacies that are not backed by wealthy interests, depriving the electorate of the viewpoints of nonwealthy citizens. R-1-4-1, 18-23, 26-29 (¶¶ 1, 109, 113, 119, 127, 132, 144, 166, 172, 174, 177-178, and 185); cf. Duke v. Cleland, 954 F.2d 1526, 1535 (11th Cir. 1992) (right to vote embraces not only voter's access to ballot but also his access to alternative viewpoints and positions presented on that ballot); FEC v. Akins, 118 S. Ct. 1777 (1998) (injury in fact found where parties unable to obtain information about campaign donors relevant to the exercise of the right to vote). It also stifles robust political debate. For example, when Plaintiff Jerrie Lynn Peevy ran for the state senate against a wealthy opponent, her opponent refused to participate in public debates on the issues, because he could instead rely on multi-media advertising without exposing his views to direct, unrehearsed scrutiny. R-1-4-23 (¶¶ 145-157); see also R-1-4-25-27 (¶¶ 158-172). Finally, the wealth primary acts as a barrier to the general election ballot for nonwealthy candidates. R-1-4-8, 16-17, 22-23 (¶¶ 42-43, 92-104, 133-140). These burdens on the appellant candidates' and their supporters' right to associate constitute an injury to their First Amendment rights.

4. Plaintiffs' Injuries are Sufficiently Concrete and Particular.

Though the district court did not determine that plaintiffs' injuries involved only a generalized grievance, it is important to note that plaintiffs' concrete and particular injuries do not founder on that prudential limit of standing. As the Supreme Court recently made clear, the argument that an alleged injury is merely a generalized grievance "invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature -- for example, harm to the 'common concern for obedience to law". Akins, 1998 U.S. LEXIS at *23 (citations omitted). Plaintiffs' injuries in this case are neither abstract nor indefinite. Instead, plaintiffs have quantified how and to what extent the requirement of access to wealth serves as a practical barrier to low income citizens' participation in Georgia politics. "[W]here a harm is concrete, though widely shared, the Court has found 'injury in fact'". Id. at *24. Thus, "the fact that a political forum may be more readily available where an injury is widely shared . . . does not, by itself, automatically disqualify an interest for Article III purposes." Id. at *25.[6] In sum, plaintiffs have made a detailed and specific showing of concrete injuries that satisfy the first prong of the Lujan standing test.

B. Plaintiffs Have Adequately Alleged a Causal Connection Between their Injuries and Defendants' Maintenance of the Wealth Primary.

The second general requirement for standing is the existence of a causal connection between the plaintiffs' injuries and the conduct of which they complain, see Lujan, 504 U.S. at 560. The District Court incorrectly concluded that plaintiffs' injuries are not traceable to the state of Georgia because there is "no legislation or other state action that prevents a poor voter or candidate from exercising his or her rights." R-1-18-6. This holding ignores the Supreme Court's ruling in Terry.

In Terry, the Supreme Court granted a declaratory judgment that the exclusionary candidate nominating process run by the Jaybird Association was unconstitutional, though neither the Jaybird Association nor its nominating process was the product of any state statute. Seesupra at 15. As the Supreme Court recently noted in discussing the continuing validity of Terry, "the Jaybirds had no official status, received no state funds, and conducted a purely private election . . . ." Morse v. Republican Party of Virginia, 517 U. S. at 213 (citing Terry). The critical factor warranting the intervention of the federal courts was not that state officials had created or administered the discriminatory electoral process, but instead that the Jaybirds' private nominating process had become "an integral part" of the election process and, as a practical matter, served to determine who appeared on the ballot. 345 U.S. at 469. See also id. at 480 ("any ëpart of the machinery for choosing officials' becomes subject to the Constitution's restraints" (Clark, J., concurring (quoting Smith v. Allright, 321 U.S. at 664))).

Indeed, state action analysis in the electoral context is informed by the principle that the election process "is an exclusively public function." Flagg Brothers v. Brooks, 436 U.S. 149, 158 (1978). Hence, as in Terry, state ratification of a discriminatory, private pre-primary selection process is itself discriminatory. If the State condones a private process that would be forbidden in a public election, and that process has, as a practical matter, become an integral part of the election process, it violates the Constitution. Terry, 345 U.S. at 469. See also Barbara Rook Snyder, Private Motivations, State Action and the Allocation of Responsibility for Fourteenth Amendment Violations, 75 Cornell L. Rev. 1053, 1055 n.15, 1083 n.160 (1990).

The district court's treatment of the plaintiffs' wealth primary claims rests on a critical misreading of Terry similar to that made in Albanese v. FEC, 78 F.3d 66, 69 (2d Cir.), cert. denied, 117 S. Ct. 73 (1996) (stating that "[u]nlike the plaintiffs in Terry, plaintiffs here are not prevented from voting in any election").[7] In fact, the plaintiffs in Terry were not prevented from voting in Texas elections. Rather, they were excluded from participating in a private association's pre-primary, pre-election candidate nominating process, which had become "an integral part" of the overall election process. Similarly, plaintiffs here, though permitted to vote in state senate elections, are excluded from the wealth primary that controls who appears on the ballot in these elections. Under the Second Circuit's standard in Albanese ó in which plaintiffs must be actually barred from voting in an election to assert an equal protection violation ó Terry and the long line of voting rights cases since Terry would never have been heard on their merits.

Georgia's state action in this case becomes clearer if one understands the state as sanctioning the emergence of an exclusionary process within the structure of an existing electoral regime whose operation might originally have been constitutional. In this regard, Baker v. Carr, 369 U.S. 194 (1962), is instructive. In Baker, the legislature failed to respond to changed circumstances that rendered the former legislative apportionment unconstitutional and obsolete. The Supreme Court noted that "[i]t is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy". 369 U.S. at 192. Where in Baker the legislature had failed to respond to changes in the population of the state, here the legislature has refused to respond to the skyrocketing costs of participation in the electoral process.

The Baker Court held that plaintiffs had standing because of the injury caused by an obsolete apportionment regime which, under newly emerging circumstances, disfavored certain voters by "placing them in a position of constitutionally unjustifiable inequality vis-à-vis [other] voters". Baker, 369 U.S. at 207. As explained above, prevailing in the wealth primary by amassing and spending tens of thousands of dollars in campaign funds has developed into an integral part of the machinery for choosing the members of the Georgia state senate. Indeed, having wealth or access to wealth has become a prerequisite to running a competitive campaign, much less winning the election. Plaintiffs, who lack wealth or access to wealth, are excluded from an integral part of the election process and do not enjoy the right to equal participation in choosing "who shall rule and govern" in the Georgia legislature. Cf. Terry, 345 U.S. at 461. These allegations, which must be taken as true for the purpose of appellees' motion to dismiss, suffice to overcome the state's argument that the inequalities suffered by plaintiffs are purely the result of private action and therefore not traceable to the defendants.

Although the arguments above demonstrate the district court's error concerning causation and state action, the complaint also describes numerous ways in which the appellees are more directly involved in maintaining the wealth primary. For example, Georgia's statutory scheme regulating campaign contributions creates exceptions to contribution limits that, as a practical matter, are unavailable to candidates lacking wealth or access to wealth, thus enhancing the discrimination caused by the wealth primary. R-1-4-6 (¶¶ 27-32) (describing exemptions for loans to candidates); R-1-4-24 (¶ 154) (plaintiff Peevy's wealthy opponent was able to loan himself $30,000 for the campaign, and repay himself later from campaign contributions). Georgia's scheme also provides for unlimited carryovers of campaign contributions from election to election, which enhance the advantages of wealth in the electoral process. R-1-4-9-9 (¶¶ 44-49). Corporations, which are creatures of Georgia law, are permitted to contribute directly to state senate campaigns. Cf. Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) (upholding ban on corporate expenditures in political campaigns and noting state's strong interest in "reduc[ing] the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections.") Id. at 669. The Secretary of State's role in certifying election results and overseeing an electoral process whose results are dictated by the wealth primary further involves the state in maintaining its exclusionary function. R-1-4-4, 28 (¶¶ 15, 179); see generally R-1-4-4-5, 28-29 (¶¶ 14-17, 179, 186).

In sum, plaintiffs have alleged that an integral, exclusionary campaign fundraising process debases and undermines their vote, preventing them from participating in the political process on an equal and meaningful basis with those who have wealth and access to wealth. The state of Georgia both sanctions and exacerbates this injury. The district court's suggestion that "state action" in voting rights cases occurs only when the state interferes with citizens in the physical act of casting a ballot or being a candidate ignores the past fifty years of voting rights case history.

    C. Plaintiffs' Injuries Are Likely to be Redressed By a Favorable Decision.

Though the district court did not directly address the question, plaintiffs have clearly established the likelihood that their injuries would be redressed by a favorable decision from the courts. See Lujan, 112 S. Ct. at 1236. At the pleading stage, plaintiffs are not required to prove more. See, e.g., Dopico v. Goldsmidt, 687 F.2d 644, 649 (2d Cir.1982)("The extreme result of dismissing the claim would be proper only if plaintiffs were not entitled to any relief, even if they were to prevail on the merits. We do not believe that conclusion can be reached at this preliminary stage of the lawsuit"); American Nurses Association v. State of Illinois, 783 F.2d 716, 730 (7th Cir. 1986) (potential difficulties in fashioning remedy in sex discrimination case may require plaintiffs to accept less than optimal remedy, but do not act as bar to claim).

If, as plaintiffs allege, they have been excluded from equal participation in Georgia state senate elections because of the operation of the wealth primary, the courts are fully capable of ordering relief that will redress their injuries. Of course, once the court enters a declaratory judgment that the current wealth primary process is unconstitutional, as requested in plaintiffs' prayer for relief, the state itself will have the first opportunity to determine how to remedy the constitutional violation, as is true in other cases involving the legality of a state's electoral process. See Wise v. Lipscomb, 437 U.S. 535 (1978). Only if the state refuses to act in response to the finding of unconstitutionality, or adopts a remedial scheme that is itself unlawful, would the Court face the obligation of fashioning appropriate relief itself. Id.

Assuming that relief will ultimately have to be fashioned by the Court, there are numerous avenues through which plaintiffs' exclusion from equal political participation caused by the operation of the wealth primary might be remedied. One appropriate remedy would consist of requiring public funding and/or media vouchers at a minimal level that is adequate to permit candidates to run a competitive state senate campaign. Such funding could be provided to candidates who can demonstrate a base of public support through signature requirements or otherwise. See Raskin & Bonifaz, supra, at 312-313 (discussing potential remedies in cases challenging wealth primary). The appropriate minimal funding levels would be determined based on the factual record made at trial concerning the costs of running a viable senate campaign in Georgia.

This remedy is similar in structure to those imposed by the federal courts to assure indigents' access to the justice system. See Gideon v. Wainwright, 372 U.S. 335 (1963) (right to state-provided counsel in criminal case); M.L.B v. S.L.J., 519 U.S. 102 (1996) (right to state-provided transcript for appeal in civil parental status termination case). Under these precedents, non-wealthy litigants are not guaranteed precisely the same resources as may be available to wealthy litigants, but they are guaranteed a floor of state funding necessary to assure "meaningful access" to the justice system. Ross v. Moffitt, 417 U.S. 600, 616 (1974).[8] Similarly, without requiring the state to equalize the funding available to all candidates, public funding would set a floor to allow meaningful access to the political process for nonwealthy voters and candidates. Plaintiff voters and candidates then would no longer be excluded from an integral part of the electoral process, cf. Terry v. Adams, 345 U.S. at 469, as they are under the current system.

Other remedies might include imposing more meaningful limits on campaign contributions, given that Georgia's limits are high compared to many other states and that nonwealthy citizens in Georgia are unable to make campaign contributions anywhere near the current levels permitted by Georgia law. R-1-4-14-15, 18-19, 21, 26, 28 (¶¶ 76, 80, 88, 91, 107, 113, 119, 127, 169, 170, 180, 181). The Court could also order that loopholes in the current statutory scheme that favor the wealthy be closed (such as the provisions for unlimited carryover of unused campaign funds), and that direct contributions by corporations to political campaigns be barred.

The reforms canvassed here would alleviate the injuries suffered by the plaintiffs under the current system by permitting nonwealthy candidates and their voter-supporters a meaningful opportunity to convey their message to the public and, consequently, to participate in Georgia politics. Such reforms would also lessen the likelihood of actual or apparent corruption stemming from the current dominance of wealth in the election process.

Of course, at this stage of the case, plaintiffs satisfy the requirements of standing by demonstrating that relief would be likely to address their injuries. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). They need not conclusively establish the final form that such relief will take, a matter that obviously requires factual development. See Dopico v. Goldsmidt, 687 F.2d at 653.

The appellees' contention below that plaintiffs should seek relief from the state legislature, R-1-18-2-3, is no more persuasive here than it was when directed to plaintiff voters who sought relief from severely malapportioned electoral districts in Baker v. Carr. As the Supreme Court recognized in Baker, asking voters to petition the legislature for recognition of their constitutional right to equal political participation was futile, because the incumbent legislators were the very ones who benefited most from the scheme whose legality the plaintiffs challenged. Like the voters in Baker v. Carr, plaintiffs here have no prospect of relief from the legislature, because the overwhelming majority of incumbents, as successful fundraisers, benefit from the operation of the wealth primary. Furthermore, Georgia law makes no provisions for citizens to bypass recalcitrant legislators and reform their wealth-dominated political system through an initiative process. R-1-4-5 (¶ 25); cf. Baker v. Carr, 369 U.S. at 258-59(Clark, J., concurring) (citing absence of initiative process in Tennessee as additional support for judicial intervention). Georgia also lacks term limits for state legislators, making it even less likely that incumbent legislators could be persuaded to put aside their self-interest and adopt any reforms to degrade the power of wealth in perpetuating their incumbencies.


The Georgia Supreme Court has held that "the equal protection clause in the 1983 Georgia Constitution and the United States Constitution is coextensive," Grissom v. Gleason, 418 S.E.2d 27, 29, 262 Ga. 374 (1992), and has indicated in dicta that the Georgia equal protection clause may even be interpreted to have a broader reach than its federal analog. Id. at 29 n.1. Similarly, the Georgia Constitution provides, if anything, broader protection for First Amendment rights than does the U.S. Constitution. See State v. Miller, 398 S.E.2d 547, 260 Ga. 669 (1990). The unequivocal terms of the Bill of Rights in the Georgia Constitution create an affirmative duty on the part of the state legislature to take action to preserve citizens' fundamental rights:

. . . it shall be the duty of the General Assembly to enact such laws as will protect [citizens] in the full enjoyment of the rights, privileges, and immunities due to such citizenship.

Constitution of the State of Georgia, Article I, section I, paragraph VII (1995). This broad directive, and the numerous reasons set forth above, establish plaintiffs' standing to pursue their claims under the equal protection and freedom of speech clauses of the Georgia Constitution as well. See generally Lowry v. McDuffie, 496 S.E.2d 727, 269 Ga. 202 (1998).

*        *        *

This country's constitutional history demonstrates that judicial intervention to protect citizens' constitutional rights enjoys its most solid justification in precisely this situation, where the plaintiffs' injury stems from exclusionary electoral practices which the incumbent legislators have a vested interest in perpetuating. See O'Hair v. White, 675 F. 2d. 680, 689 (5th Cir. 1982) (per Vance, J.):

We do not believe that prudential notions of self-restraint in the area of standing are properly invoked in cases involving the dilution of an individual's fundamental voting rights. When a complaint alleges injury stemming from a clogged democratic process, it would be anomalous to require the plaintiff to seek relief from political institutions. O'Hair, 'like any person whose right to vote is impaired has standing to sue.' (citation omitted).

Courts have a duty to recognize changing circumstances that threaten the continued exercise of citizens' basic constitutional rights as well as a corollary duty to consider how changed circumstances may alter the scope of those rights:

[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.

Harper v. Virginia Board of Elections, 383 U.S. 663, 669 (1966) (emphasis in original); see also Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992) ("In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations"). Plaintiffs respectfully ask the Court to take a realistic look at the changed circumstances of electoral politics in Georgia, with particular attention to the fact that access to wealth has become a prerequisite to participation. Plaintiffs' complaint exhaustively alleges nonwealthy citizens' vanishing opportunities in Georgia politics and consequent lack of meaningful representation in government. Given the specificity of their allegations, the documentation of their actual political marginalization, and the gravity of the fundamental rights abridged, plaintiffs clearly have standing to bring these claims and deserve to be heard on the merits.


The allegations of the plaintiffs, evaluated under the proper legal standards, establish their standing to bring suit under Article III of the Constitution of the United States and under the Constitution of the state of Georgia. The judgment of the court below dismissing the plaintiffs' claims should be reversed and the case remanded for further proceedings.

Respectfully submitted,

Gregory G. Luke, Esq.
Brenda Wright, Esq.
John C. Bonifaz, Esq.
National Voting Rights Institute
294 Washington St., Suite 713
Boston , MA 02108
(617) 368-9100

John Clark, Esq.
General Counsel, Georgia NAACP
P.O. Box 752
Elberton, Georgia 30635
(706) 283-9732


Of Counsel:
Dennis C. Hayes, Esq.
Willie Abrams, Esq.
Office of General Counsel, NAACP
4805 Mt. Hope Drive
Baltimore, Maryland 21215-3297
(410) 486-9180

Dated this 19th day of January, 1999.


[1] "The [cost] increase in running an effective campaign stems from the growing 'professionalization' of the campaign itself: the use of campaign mangers, sophisticated mail-targeting and polling techniques, and more reliance on media advertising."  Gary F. Moncrief, Candidate Spending in State Legislative Races, in CAMPAIGN FINANCE IN STATE LEGISLATIVE ELECTIONS, 37, 38-39 (Joel A. Thompson and Gary F. Montcrief eds., 1998).

[2] Amassing wealth has become a necessary, definable, and integral element of the electoral process.  The term "wealth primary" refers to the exclusionary campaign finance system that requires candidates to collect substantial sums of money from wealthy interests as a precondition to viable candidacy.

[3] Similarly, candidates, or members of a candidate's family, may contribute unlimited funds to their own candidacy. GA. CODE ANN. §§ 21-5-41(c) (1996).  Hence, a central feature of the "Ethics in Government Act" simply does not apply to the wealthy.  See e.g.  R-1-4-24 (¶¶ 151, 153).

[4] Of the 56 Senate winners in 1996, 42 had war chests, comprising money in previous elections, that averaged $31,626 -- a sum nearly double the average amount raised by those candidates' general election opponents.  R-1-4-8 (¶ 42).

[5] Because the discrimination faced by plaintiffs based on their lack of wealth impairs their exercise of fundamental rights, including the right to equal access to the franchise, their claims fall under the Harper/Bullock line of cases and other equal protection cases involving fundamental rights, rather than cases involving access to social welfare benefits, such as Dandridge v. Williams, 397 U.S. 471 (1970).

[6] Arguably, plaintiffs' injuries here are more palpable and enduring than those that occur in other voting rights contexts.  In the case of vote dilution, for example, political gerrymanders tend eventually to subvert themselves.  "In order to gerrymander, the legislative majority must weaken some of its safe seats, thus exposing its own incumbents to greater risks of defeat. . . .  An overambitious gerrymander can lead to disaster for the legislative majority." Davis v. Bandemer, 478 U.S. 109, 152 (O'Connor, J., concurring) (citation omitted).  In our case, however, there is no analogous, systemic protection for low income citizens marginalized by a wealth primary regime that perpetuates itself indefinitely.

[7] The same error undermines the Ninth Circuit's analysis in NAACP v. Jones, 131 F.3d 1317 (9th Cir. 1997), cert. denied, 119 S. Ct. 48 (1998).  There, the court wrote that "[i]n Terry . . . the combined actions of a private association and the Democratic Party denied African Americans the right to vote in primaries".  Id. at 1323.  The authority of NAACP v. Jones founders on this plainly incorrect description of the facts in Terry, where no voters were prevented from voting in primaries.

[8] See also Ross v. Moffitt, 417 U.S. 600, 612 (1974) (equal protection "does not require absolute equality or precisely equal advantages", but does require that "indigents have an adequate opportunity to present their claims fairly within the adversarial system").