Legal Library

Case No. 97-CV-2340-WBH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss

Georgia State Conference of NAACP Branches; Southern Christian Leadership Conference; Georgia Citizens Coalition on Hunger; Hispanic Political Action Committee; Georgia Rural Urban Summit; John White; Charles Sherrod; John L. Spann; Lewis Leary; James Gibson; Julian Holder; William Clark; Clinton M. Marsh; Jerrie Lynn Peevy; John Elliott; Suzanne Britt,

Plaintiffs,

v.

Lewis A. Massey; in his representative capacity as Secretary of State of Georgia; Georgia State Senate; Pierre Howard, in his representative capacity as presiding officer of the Georgia State Senate; Georgia House of Representatives; Thomas Murphy, in his representative capacity as Speaker of the Georgia House of Representatives,

Defendants.
 

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION AND SUMMARY

FACTS

I. Plaintiffs Have Standing to Bring This Action

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

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

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

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

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

II. Plaintiffs State a Claim Upon Which Relief Can Be Granted

CONCLUSION

TABLE OF AUTHORITIES

Cases
Albanese v. FEC, 78 F.3d 66 (2d Cir. 1996), cert. denied, 117 S. Ct. 73 (1996)
American Nurses Association v. State of Illinois, 783 F.2d 716(7th Cir. 1986)
Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990)
Baker v. Carr, 369 U.S. 186 (1964)
Breedlove v. Suttles, 302 U.S. 277 (1937)
Buckley v. Valeo, 424 U.S. 1 (1976)
Bullock v. Carter, 405 U.S. 134, 144 (1972)
Conley v. Gibson, 355 U.S. 41 (1957)
Dandridge v. Williams, 397 U.S. 471 (1970)
Davis v. Bandemer, 478 U.S. 109 (1986)
Dixon v. Maryland State Administrative Bd. Of Election Laws, 878 F.2d 776 (4th Cir. 1989)
Dopico v. Goldsmidt, 687 F.2d 644 (2d Cir.1982)
Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992)
Flagg Brothers v. Brooks, 436 U.S. 149(1978)
Gideon v. Wainwright, 372 U.S. 335 (1963)
Grissom v. Gleason, 418 S.E.2d 27 (1992)
Gwinn v. State Ethics Comm, 426 S.E.2d 890 (Ga. 1993)
Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)
Harris v. Procter & Gamble, 73 F.3d 321 (11th Cir. 1996)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Morse v. Republican Party of Virginia, 116 S.Ct. 1186 (1996)
NAACP v. Jones, No.96-56455, slip op. (9th Cir. Dec. 16, 1997) 20
Northeastern Florida Contractors v. City of Jacksonville, Florida, 508 U.S. 656 (1993)
O'Hair v. White, 675 F. 2d. 680 (5th Cir. 1982)
Reynolds v. Sims, 377 U.S. 533 (1964)
Ross v. Moffitt, 417 U.S. 600(1974)
Smith v. Allwright, 321 U.S. 649 (1944)
State v. Miller, 398 S.E.2d 547 (1990)
Terry v. Adams, 345 U.S. 461 (1953)
United States v. Hays, 115 S.Ct. 2431 (1995)
United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110 (1978)
Warth v. Seldin, 422 U.S. 490, (1975)
Will v. Michigan Department of State Police, 109 S. Ct. 2304 (1989)
Williams v. Rhodes, 393 U.S. 23 (1968)
Wise v. Lipscomb, 437 U.S. 535 (1978)

Constitutions
U.S. CONST. art. III
U.S. CONST. amend. I
U.S. CONST. amend. IV

Statutes
Federal Election Campaign Act of 1974, 18 U.S.C.A. § 608(b)
Voting Rights Act of 1965, 42 U.S.C. §1973c

Other Authorities
Jamin Raskin and John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol'y Rev. 273 (1993)
Barbara Rook Snyder, Private Motivations, State Action and the Allocation of Responsibility for Fourteenth Amendment Violations, 75 Cornell L. Rev. 1053 (1990)
Lawrence H. Tribe, American Constitutional Law, (2d ed. 1988)

INTRODUCTION AND SUMMARY

Low and modest income voters, candidates who lack wealth and access to wealth, and five citizens’ organizations bring this case to secure their constitutional rights in the political process governing the election of Georgia state senators. With the average cost of a successful senate campaign having risen to over $68,000, and with thousands of dollars in spending required even to run a competitive campaign, citizens and candidates who lack wealth or access to wealth are excluded from full and equal participation in the election of state senators in Georgia. They cannot participate in the "wealth primary" — the amassing of huge sums of money from wealthy interests — that now controls access to the political process and has become an integral part of the election machinery in state senate elections. The high cost of state senate elections also precludes low and modest income voters from effectively speaking out in support of candidates who share their views, and bestows on wealthy individuals and special interests the power to command access to and influence on their legislators far in excess of that available to ordinary citizens such as the plaintiffs.

As demonstrated below, the wealth primary that controls Georgia state senate elections violates plaintiffs’ rights secured by the equal protection and freedom of speech and association guarantees of the U.S. and Georgia Constitutions. Plaintiffs seek declaratory and injunctive relief to protect their constitutional rights to full and equal participation in the election of Georgia state senators.

In seeking dismissal of plaintiffs’ complaint at the pleading stage, defendants have failed to carry the heavy burden they face on such a motion. In ruling on a motion to dismiss, a court must take the complaint’s allegations as true and read them in the light most favorable to the plaintiffs. Harris v. Procter & Gamble, 73 F.3d 321, 324 (11th Cir. 1996). A complaint may not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Harris, 73 F.3d at 324.

As plaintiffs discuss in this brief, plaintiffs readily meet the requirements for Article III standing because they have suffered a concrete and cognizable injury that is fairly traceable to defendants’ challenged actions and is likely to be redressed by a favorable decision of this Court. See Point I, infra. Further, plaintiffs have clearly stated claims upon which relief can be granted by alleging serious violations of their fundamental right to full participation in the political process in Georgia. See Point II, infra. Accordingly, defendants’ motion to dismiss must be denied.

FACTS

In recent years, the influence of money in Georgia state senate elections has increased dramatically. Over the three election cycles for the Georgia state senate from 1992 through 1996, winning campaigns have cost an average of almost $57,000, with the average cost of winning campaigns reaching over $68,000 in the 1996 elections. First Amended Complaint (hereafter, "Compl."), at ¶¶ 36-37. The funding advantage of winning candidates compared to losing candidates in state senate elections was 55% in 1992, but rose to an overwhelming 324% advantage in 1996. Id. at ¶ 40. In a state where the median annual income of a household is $29,000, the high cost of competing has made wealthy interests the owners of Georgia’s senate election process. Id. at ¶¶ 63, 183-184. In over 83% of the state senate races over this period, the candidates who won the wealth primary — who out-raised and outspent their opponents - won the election. Id. at ¶ 41. Incumbents who outspent their opponents were virtually unchallengable, winning 94.7% of such races in 1996. See Attachment B to Plaintiffs’ Responses to Mandatory Disclosures, at 4. The "wealth primary" — the campaign fundraising process in state senate election whereby wealthy candidates or wealthy supporters of candidates or both control who participates in and who consistently wins elections has become an integral part of the overall Georgia State Senate electoral process. Id. at ¶¶ 1-2, 32, 179, 182, and 186.

The dominance of wealth in state senate elections has allowed a small fraction of the electorate to amass an enormous concentration of power and influence in the electoral process. Although state senate districts are significantly smaller than congressional districts, Georgia law permits individual and corporate contributions to candidates up to $3,000 per election cycle for state senate elections, three times the $1,000 individual limitation permitted for congressional candidates under federal law. See Compl. at ¶ 26; compare Federal Election Campaign Act of 1974, 18 U.S.C.A. § 608(b). Contributions of $500 or more from individuals, businesses and PACS comprised over two-thirds of the nearly $10,000,000 in contributions raised from 1992 through 1996, while small contributions of $100 or less comprised less than one fifth of this amount during the same period. Compl. at ¶ 52 and 54. Only 0.026 percent of the 1990 Georgia population made contributions of over $500 in senate elections, but that tiny fraction of the electorate contributed over one-third of the $10,000,000 raised during this period. Id. at ¶ 55-57. Numerous businesses and PACs with business before the legislature are contributing larger and larger sums to state senate campaigns, resulting in an increased public perception of corruption and undermining the integrity of the political process. Id. at ¶¶ 60-64.

The money-dominated electoral system excludes low and modest-income voters and candidates from effective participation in the political process in Georgia state senate elections. Plaintiffs Charles Sherrod, a prison chaplain, John White, a former member of the Georgia House of Representatives, and Jerrie Lynn Peevy, a legal secretary, are nonwealthy citizens and registered voters. Each sought the opportunity to represent their communities in the state senate, but without personal wealth or backing from wealthy interests they could not compete fairly and get their message to voters. Plaintiffs John L. Spann, Lewis Leary, James Gibson, Julian Holder, William Clark, John Elliott and Suzanne Britt, Georgia citizens and registered voters, tried to support these candidates by giving small contributions or doing volunteering work for their campaigns, but their efforts were futile in an electoral system dominated by large amounts of money. Each is denied the opportunity for equal political participation because of their exclusion from the wealth primary that has become an integral part of the Georgia state senate election process. Clinton Marsh, who lobbies on behalf of poor Georgians, cannot find state senate candidates in his district to support because the process is dominated by money and discourages non-wealthy candidates from running for state senate. Compl. at ¶¶ 113, 119, 127, 132, 144, 166, 172, 176-178, 180-181.

Plaintiffs Georgia State Conference of NAACP Branches, Southern Christian Leadership Conference, Georgia Citizens Coalition on Hunger, Hispanic Political Action Committee (HISPAC) and Georgia Rural Urban Summit are organizations whose members include thousands of Georgia voters lacking wealth or access to wealth. They seek to protect the interests of their members in full and equal political participation. Compl. at ¶¶ 71, 75, 80, 89, 91.

  1. PLAINTIFFS HAVE STANDING TO BRING THIS ACTION

Plaintiffs have standing under Article III of the Constitution to be heard on the merits of their claim (1) if they suffer an injury in fact, 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 United States v. Hays, 115 S.Ct. 2431; (citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Plaintiffs readily satisfy all three elements in this case.

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 who are 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 the right to vote of African American citizens, 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 voters to be excluded from such a critical part of the process on the basis of their race. 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. Allwright, 321 U.S. 649 (1944)).

Recently, the Supreme Court reiterated the principle in the Terry line of cases 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, 116 S.Ct. 1186, 1200 (1996). In Morse the Court held that Section 5 of the Voting Rights Act of 1965, 42 U.S.C. §1973c, 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 process…’" Morse, 116 S.Ct. at 1206 (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).

As nonwealthy voters and as state senate candidates, the individual plaintiffs have suffered concrete harms 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 — that is, by amassing and spending more campaign funds than their opponents. Compl. at ¶ 41. In this money-dominated system, the plaintiff candidates and their supporters could not run competitive state senate campaigns or even reach like-minded voters with their electoral message.

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 virtually 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. Compl. at ¶¶ 92-125, 128-132; see also id. at ¶¶ 126-127, 133-140 (detailing similar experiences in Plaintiff 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. Id. at ¶ 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. Compl. at ¶¶ 91-144. Further, 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. Id. at ¶¶ 167-171.

The principal that wealth distinctions may not be used to block meaningful participation by a group of citizens in the electoral process is a critical foundation of our democracy. The Supreme Court has long recognized the "real and appreciable impact on the exercise of the franchise" which voters face under a system that excludes them 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. The fees violated the equal protection rights of both voters and candidates. Prospective candidates without wealth were precluded from seeking office, and the fees thus 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. at 666 (striking down a $1.50 poll tax in Virginia state elections). Indeed, as state senate candidates facing the wealth primary system, Plaintiffs Sherrod, White and Peevy would have needed to raise 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). Compl. at ¶¶ 37, 95, 124, 140.

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. As in those cases, the wealth primary process is not governed by state law and does not use the state elective apparatus for funds. Yet, 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.(1)

Defendants argue that plaintiffs lack standing because their chosen candidates would not be assured of electoral success under a reformed system. See Def. Br. at 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 ‘injury in fact’ is the inability to compete on an equal footing in the bidding process . . . .")(2)

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. Compl. at ¶¶ 10-13, 67, 71, 74, 109, 165,178,180-182, 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. The Complaint’s allegations regarding electoral outcomes, compl. at ¶¶ 25-63, serve the important purpose of showing how the wealth primary has become an integral part of the election process; they do not constitute a demand for guaranteed electoral success. Plaintiffs simply request remedial measures that 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:

It 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 (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 win 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.(3) The 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), noted 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 — the political impact — 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 the 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. Compl. at 1, 109, 113, 119, 127, 132, 144, 166, 172, 174, 177-188, 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). 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 scrutiny in a debate. Compl., ¶¶ 145-157; see also id. at ¶¶ 158-172. Finally, the wealth primary acts as a barrier to the general election ballot for nonwealthy candidates. Compl. at ¶¶ 42-43, 93-103, and 134-140. These burdens on the plaintiff candidates’ and their supporters’ right to associate constitute an injury to their First Amendment rights.

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. Defendants incorrectly argue that plaintiffs’ injuries are not traceable to the defendants because there is no state law making wealth a requirement for office. This argument ignores the Supreme Court’s ruling in Terry v. Adams.

In Terry, the Supreme Court granted a declaratory judgment that the exclusionary candidate nominating process run by the Jaybird Association was unconstitutional, although neither the Jaybird Association nor its nominating process was the product of any state statute. See Point I.A.1, supra. 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, 116 S. Ct. at 1202, 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.(4) See also id. at 480: "any ‘part 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).

Thus, under Terry and its progeny, if the State permits 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, 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).

As explained above, prevailing in the wealth primary by amassing and spending thousands of dollars in campaign funds has become an integral part of the machinery for choosing the members of the Georgia state senate. Indeed, having wealth or access to wealth is 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, at 461. These allegations, which must be taken as true, suffice to overcome defendants’ argument that the inequalities suffered by plaintiffs are purely the result of private action and therefore not traceable to the defendants.

Although this alone suffices to respond to defendants’ arguments concerning causation, the complaint also describes numerous ways in which the defendants 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. Compl. at ¶¶ 27-32 (describing exemptions for loans to candidates); id. at ¶ 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, from election to election, of campaign contributions, which enhances the advantages of wealth in the electoral process. Id. at ¶¶ 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 the electoral process whose results are dictated by the wealth primary further involves the state in maintaining the exclusionary wealth primary. Compl. at ¶¶ 15, 179. See generally id. at ¶¶ 14-17, 179, 186.

In sum, Plaintiffs have alleged that the exclusionary campaign fundraising process debases and undermines their vote and that they are unable to participate in the political process on an equal and meaningful basis with those who have wealth and access to wealth. Defendants’ 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

Defendants’ arguments concerning standing rest heavily on their contention that no relief could be awarded that would redress the injuries alleged by plaintiffs. Defendants ignore the heavy burden they face in making such an argument at the pleading stage. See, e.g., Dopico v. Goldsmidt, 687 F.2d 644, 649 (2d Cir.1982)(reversing dismissal of complaint and finding that disabled citizens had standing to sue transit authority for failing to comply with federal statutes concerning access to public mass transit: "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 fashioning 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.(5) 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 can 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., 117 S. Ct. 555 (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).(6) 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. 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, by permitting nonwealthy candidates and their voter supporters a meaningful opportunity to convey their message to the public, and lessening the likelihood of actual or apparent corruption stemming from the current dominance of wealth in the election process, would alleviate the injuries suffered by the plaintiffs under the current system. 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.

Contrary to defendants’ arguments, relief for plaintiffs’ injuries is not barred by principles of federalism. The defendants’ contention that plaintiffs should seek relief from the state legislature, Def. Br. at 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 incumbent legislators are those who benefit most from the operation of the wealth primary. Further, Georgia law makes no provisions for citizens to bypass recalcitrant legislators and reform their wealth-dominated political system through an initiative process. Compl. at ¶ 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 lesson the stranglehold of wealth in perpetuating their incumbencies.

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. SeeO'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]

Two further arguments advanced by defendants require brief response here. First, in seeking dismissal, defendants rely heavily on the contention that judicial relief cannot guarantee the election of the plaintiffs’ candidates of choice. Def. Br. at 8. Plaintiffs have already demonstrated that their standing does not depend upon proof that their candidates would win under a reformed electoral system. See supra at Point I.A.1.

Second, defendants incorrectly rely upon Buckley v. Valeo, 424 U.S. 1 (1976), as a bar to relief that would tighten contribution limits. Def. Br. at 12. Buckley poses no obstacle to plaintiffs’ requested relief because a) plaintiffs’ requested relief does not include spending limits, which were struck down in Buckley, and b) Buckley actually upheld contribution limits enacted to prevent actual or perceived corruption. Buckley, 424 U.S. at 26-29; see also Gwinn v. State Ethics Comm, 426 S.E.2d 890 (Ga. 1993) (upholding ban on campaign contributions by regulated industries); Austin v. Michigan State Chamber of Commerce, supra (upholding ban on corporate expenditures in state elections). Thus, relief that includes meaningful contribution limits or limits on direct corporate spending in elections would not run afoul of the Constitution.

  1. PLAINTIFFS STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

A complaint may not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim. See supra at 2. The discussion in Point I, supra, has already demonstrated that plaintiffs’ allegations state a claim under both the First and Fourteenth Amendments. The wealth primary is an integral part of the Georgia state senate election process, and plaintiffs’ exclusion from that process on the basis of their lack of wealth violates their right to equal political participation guaranteed by the Fourteenth Amendment. See supra at I.A.1. Further, the necessity for senate candidates to raise vast sums of money to win 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. This dilution and debasement in the value of the plaintiffs’ votes states an independently cognizable claim under the Fourteenth Amendment. See I.A.2., supra. In addition, the wealth primary process violates plaintiffs’ First Amendment rights by unlawfully limiting plaintiffs’ access to alternative viewpoints as well as their access to the ballot itself. See I.A.3., supra. Plaintiffs’ allegations also state a claim for relief under the Georgia Constitution.(7) Further, plaintiffs have already refuted defendants’ erroneous contention that doctrines of state action and federalism preclude plaintiffs’ claims. See Points I.B. and I.C., supra.(8)

Defining the content of the right to equal electoral participation has been a matter of evolving constitutional standards in which the courts have gradually recognized the dangers of new barriers that must be redressed to assure full democracy.(9) Plaintiffs’ lawsuit asserts that this evolution is unfinished. The explosive growth in the power of wealth to shape the outcome of public elections now poses as great a threat to democratic self government as did the "rotten boroughs" of 35 years ago, the poll tax of 40 years ago, or the white primary of 50 years ago. Plaintiffs ask, at this stage, only for the opportunity to prove that proposition at trial. When barriers to equal political participation of this magnitude are alleged, the federal courts have not only the power, but the duty, to permit plaintiffs to be heard on their claims.

 

CONCLUSION

For the foregoing reasons, and on the basis of the authorities cited, this Court should deny the defendants’ motion to dismiss.



Respectfully submitted,

__________________________
LUIS A. TORRES, Esq.
BRENDA WRIGHT, Esq.
JOHN C. BONIFAZ, Esq.
National Voting Rights Institute
294 Washington Street, Suite 713
Boston, Massachusetts 02108
(617) 368-9100
FAX (617) 368-9101

John Clark, Esq. 307369
General Counsel, Georgia NAACP
Vice-President, Georgia Alliance of African-American Attorneys
P.O. Box 752
Elberton, Georgia 30635
(706)283-9732
FAX (706) 283-0659

Roxanne Gregory, Esq.
General Counsel, SCLC
334 Auburn Avenue, NE
Atlanta, Georgia 30312
(404) 584-6111
FAX (404) 659-7390
Attorneys for Plaintiffs

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

Footnotes

1 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).

2 Thus, defendants' reliance on Warth v. Seldin, 422 U.S. 490, (1975), is misplaced. Def. Br. at 5-6. In Northeastern, the Supreme Court found Warth inapposite because "The firms' complaint [in Warth]. . . was not that they could not compete equally; it was that they did not win." 508 U.S. at 668.

3 See Compl. at ¶ 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); id. at ¶¶ 60-64, 183-187.

4 Defendants' reliance upon Albanese v. FEC, 78 F.3d 66 (2d Cir. 1996), cert. denied, 117 S. Ct. 73 (1996), is misplaced. The court's treatment of the wealth primary claims in Albanese rested on a critical misreading of Terry v. Adams. See 78 F.3d at 69 (stating that "[u]nlike the plaintiffs in Terry, plaintiffs here are not prevented from voting in any election.") 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 these elections. Under the Second Circuit's standard in Albanese - in which plaintiffs must be actually barred from voting in an election to assert an equal protection violation - Terry and the long line of voting rights cases since Terry would never have been heard on their merits. The same error undermines the Ninth Circuit's analysis in NAACP v. Jones, No.96-56455, slip op. (9th Cir. Dec. 16, 1997).

5 Plaintiffs' request for an injunction against the operation of the wealth primary is not, as defendants contend, a request to enjoin Georgia's party primaries. Def. Br. at 12. The "wealth primary" refers to the exclusionary process through which candidates and voters lacking wealth or access to wealth are unable meaningfully to participate in the political process, whether in primary or in general elections. See supra at 3-4.

6 See also id. at 612: 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."

7 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 (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 (1990). Thus, plaintiffs' complaint states a cause of action under equal protection and freedom of speech clauses of the Georgia constitution as well.

8 Defendants contend that the Georgia House and Senate are not proper parties to a lawsuit under Georgia law. Def. Br. at 13-17. Defendants, however, have not sought dismissal of the Speaker of the House and the Presiding Officer of the Senate as parties to the case. Of course, when plaintiffs seek only prospective injunctive relief rather than monetary relief, state officials acting in their official capacities may properly be sued. Will v. Michigan Department of State Police, 109 S. Ct. 2304, 2308 n.5, 2311 n.10 (1989). Accordingly, given that the Speaker and Presiding Officer will remain as parties, plaintiffs do not object to dismissal of the House and Senate.

9 Compare Colegrove v. Green, 328 U.S. 549 (1946) (rejecting constitutional challenge to severely malapportioned congressional districts), with Baker v. Carr, 369 U.S. 186 (1962) (holding that Fourteenth Amendment challenge to malapportioned congressional districts is justiciable); Breedlove v. Suttles , 302 U.S. 277 (1937) (poll tax does not unconstitutionally interfere with right to vote), with Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) (poll tax constitutes denial of equal protection).