Fulani v. Krivanek

973 F.2d 1539, 1992 WL 227436
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 5, 1992
DocketNo. 91-3918
StatusPublished
Cited by35 cases

This text of 973 F.2d 1539 (Fulani v. Krivanek) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fulani v. Krivanek, 973 F.2d 1539, 1992 WL 227436 (11th Cir. 1992).

Opinion

KRAVITCH, Circuit Judge:

In this ballot-access case, plaintiffs New Alliance Party (“NAP”) and Lenora B. Fulani (“Fulani”) appeal from the district court’s ruling in favor of defendants State of Florida and Hillsborough County Supervisor of Elections Robin Krivanek (“Kriva-nek”). The district court held that Fla. Stat. § 99.097(4), which excludes minor political parties from a provision allowing candidates qualifying by petition to waive unduly burdensome signature-verification fees, does not violate the Equal Protection Clause or the First Amendment. We reverse.

[1540]*1540BACKGROUND

Fulani was the NAP’s candidate for President of the United States in the 1988 election. The NAP, which in 1988 was listed on the general-election ballots of all fifty states and the District of Columbia, is classified as a “minor political party” under Florida election law.1 Presidential candidates of the two major political parties are placed on the general-election ballot by the governor. See Fla.Stat. § 103.021(1) & (2). To gain access to the ballot, minor-party and independent candidates for President must submit petitions containing the signatures of at least one percent of the registered voters in the state. See Fla.Stat. § 103.021(3). It is well settled that such a difference in treatment does not violate the Constitution. See, e.g., American Party of Texas v. White, 415 U.S. 767, 793-94, 94 S.Ct. 1296, 1312, 39 L.Ed.2d 744 (1974).

Section 103.021(3) also provides that a minor-party or independent candidate must submit a separate petition to the supervisor of elections for each county from which signatures are solicited. The supervisors then check the signatures to certify their validity. Pursuant to section 99.097(4), the candidate must pay the supervisors “the sum of 10 cents for each signature checked or the actual cost of checking such signature, whichever is less.”2 We have endorsed the constitutionality of conditioning access to the ballot on payment of this signature-verification fee, stating that “Florida’s procedures are not impermissibly burdensome as to cost.” See Libertarian Party of Florida v. Florida, 710 F.2d 790, 794 (11th Cir.1983), cert. denied, 469 U.S. 831, 105 S.Ct. 117, 83 L.Ed.2d 60 (1984). In 1988, there were 5,631,200 registered voters in Florida. To gain access to the ballot, the NAP needed to collect at least 56,312 signatures, which cost $5,631.20 to have verified.

Alternatively, by collecting signatures of at least 1.15 percent of the registered voters (rather than the minimum one percent), a candidate is entitled to have the supervisors check the signatures by random sample. See Fla.Stat. § 99.097(l)(b). Because the verification fee remains ten cents per signature actually checked, this method of verification can be considerably less expensive for the candidate.3

The provision challenged by appellants states that:

if a candidate, person, or organization seeking to have an issue placed upon the ballot cannot pay such charges without imposing an undue burden on personal resources or upon the resources otherwise available to such candidate, person, or organization, such candidate, person, or organization, shall, upon written certification of such inability given under oath to the supervisor, be entitled to have the signatures verified at no charge. However, an oath in lieu of payment of the charges shall not be allowed to verify the signatures on a petition to obtain ballot position for a minor party.

Section 99.097(4) (emphasis added).4

Fulani submitted the requisite number of signatures to the county supervisors of elections. She attempted to have the verification fee waived by submitting to defendant Krivanek an “affidavit of undue burden.” The defendant rejected Fulani’s affidavit. According to appellants, faced with the choice of “either diminishing] the financial resources of her campaign[ ] or not pay[ing] to have the signatures verified [1541]*1541(thereby preventing her name from being placed on the general election ballot),” Fulani paid the verification fee of $5,631.20. The parties agreed that this case is not moot because of Fulani’s plans to run for President in the future.

Fulani filed an action in the district court challenging the constitutionality of the statute and seeking injunctive relief, and the state intervened as a defendant. The district court denied relief, ruling that the statute did not violate the Equal Protection Clause or the First Amendment. Fulani filed a timely notice of appeal.

DISCUSSION

Review is plenary. See East-Bibb Twiggs Neighborhood Assoc, v. Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264, 1265 (11th Cir.1989). Appellants argue that the provision of section 99.097(4) denying minor-party candidates the fee-waiver option violates the Equal Protection Clause because it is a discriminatory classification that unfairly burdens their fundamental First and Fourteenth Amendment right to associate politically by conditioning ballot access on paying a fee that unduly burdens their resources. Appellants do not contest the validity of the verification fee, but instead argue that the state may not discriminate as to which group may avoid paying the fee, at least when the state has failed to advance a sufficiently important interest that is furthered by this discriminatory classification.

Appellees contend that our decision in Libertarian Party, in which we upheld the constitutionality of a different portion of section 99.097(4), controls the disposition of this case. They further assert that expressly discriminating against minor-party candidates in the fee-waiver provision advances the important interests of, inter alia, regulating elections, and preventing voter confusion by limiting ballot access to political parties with a significant modicum of support.

Because the state has failed to explain how its asserted interests justify the discriminatory classification contained in section 99.097(4), we hold that the fee-waiver provision violates appellants’ rights to equal protection in the exercise of their First and Fourteenth Amendment rights.

I. . Distinguishing Libertarian Party

We note preliminarily that Libertarian Party, in which this court upheld three provisions of Florida’s election law against equal protection and First Amendment challenges, does not control. In that case, the Libertarian Party first argued that Fla. Stat. § 99.096(1), which required that minor-party candidates for statewide office submit signatures of three percent of the state’s registered votérs to gain access to the general election ballot, impermissibly burdened their rights.

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Bluebook (online)
973 F.2d 1539, 1992 WL 227436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulani-v-krivanek-ca11-1992.