1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

)

INDEPENDENT PARTY OF )

FLORIDA and PARTY FOR )

SOCIALISM AND LIBERATION, )

)

Plaintiffs, )

)

v. ) Case No. 4:20-cv-00110-MW-CAS

)

LAUREL M. LEE, Florida )

Secretary of State, in her official )

capacity, )

)

Defendant. )

)

MOTION FOR PRELIMINARY INJUNCTION

COMES NOW Plaintiffs The Independent Party of Florida 

(“Independent Party”) and The Party for Socialism and Liberation 

(“Party for Socialism”), by and through their attorney of record, Daniel 

J. Treuden, to respectfully move this Court for a preliminary injunction 

barring the application of Fla. Stat. § 103.021(4) to keep their respective 

Presidential and Vice Presidential candidates off the November 2020 

general election ballot. This motion is filed pursuant to N.D. Fla. Loc. R. 

5.1 and 7.1.

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Conference Certificate

Pursuant to N.D. Fla. Loc. R. 7.1(C), the undersigned counsel 

sought the position of counsel for the Defendant Laurel M. Lee (“Lee”),

but did not hear back before filing this motion.

Standard of Review

Preliminary injunction:

is appropriate if – but only if – the movant shows “(1) 

substantial likelihood of success on the merits; (2) 

irreparable injury will be suffered unless the injunction 

issues; (3) the threatened injury to the movant outweighs 

whatever damages the proposed injunction may cause the 

opposing party; and (4) if issued, the injunction would not be 

adverse to the public interest.”

Callahan v. United States Dept. of Health and Human Services, 939 

F.3d 1251, 1257 (11th Cir. 2019) (quoting McDonald’s Corp. v. 

Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)).

In turn, regarding the merits of this constitutional challenge to 

Florida’s ballot access law, the court primarily follows the standard set 

out in Anderson v. Celebrezze, 460 U.S. 780 (1983):

[A] reviewing court must first “consider the character and 

magnitude of the asserted injury to the rights protected by 

the First and Fourteenth Amendment[s].” [Anderson, 460 

U.S. at 789.] Then the court must “identify and evaluate the 

precise interests put forward by the State as justifications 

for the burden imposed by its rule.” Id. Finally, the court 

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must “determine the legitimacy and strength of each of those 

interests,” while also considering “the extent to which those 

interests make it necessary to burden the Plaintiff’s rights.” 

Id.

Further, if the state election scheme imposes “severe 

burdens” on the plaintiffs’ constitutional rights, it may 

survive only if it is “narrowly tailored and advance[s] a 

compelling state interest.” Timmons v. Twin Cities Area New 

Party, 520 U.S. 351, 358 . . . (1997). But when a state’s 

election law imposes only “reasonable, nondiscriminatory 

restrictions” upon a plaintiff’s First and Fourteenth 

Amendment rights, “a State’s important regulatory interests 

will usually be enough to justify reasonable, 

nondiscriminatory restrictions.” Id. (quotations omitted). In 

short, the level of the scrutiny to which election laws are 

subject varies with the burden they impose on 

constitutionally protected rights – “Lesser burdens trigger 

less exacting review.” Id.

Stein v. Alabama Secretary of State, 774 F.3d 689, 694 (11th Cir. 2014).

In turn, given that this case involves a ballot access question in a 

presidential election, Florida has a diminished interest in regulating 

this election: “[W]e recognized that ‘the State has a less important 

interest in regulating Presidential elections than statewide or local 

elections, because the outcome of the former will be largely determined 

by voters beyond the State’s boundaries.’” Id. at 691 (quoting Anderson, 

460 U.S. at 795).

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Time Table for Motion – Need for Preliminary Injunction

The deadline for minor parties to certify their candidates for 

November’s presidential election ballot to the Secretary of State is 

September 1, 2020. It is unlikely that judgment in this case will be 

entered before that date considering the life of a typical civil case. 

Therefore, the Plaintiff’s file this motion for preliminary injunction to 

avoid a deprivation of their rights in the 2020 presidential election 

cycle. There is sufficient time for the parties to fully brief this motion 

and the court to consider it without having to expedite this matter.

Relevant Facts

History of Minor Political Party Ballot Access Statutes in Florida

For approximately fifty years from approximately 1949 to 1999, 

Florida provided ballot access for presidential candidates for minor 

political parties based solely on ballot access petitions. (Decl. of Richard 

Winger, ¶¶ 4-9) (“Winger Decl.”). In 1998, Florida amended its state 

constitution which held that all candidates should be treated equally. 

Id., ¶ 9. The legislature passed SB 754 in 1999 wherein minor political 

parties could become a “qualified party” if it filed a list of officers, a copy 

of its bylaws, and agreed to report information about its finances. Id. 

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Once qualified, a minor political party could affiliate with a “national” 

political party that held a national presidential convention, it could 

then place its presidential nominee on the ballot. Id. The 2000 election 

was the first time since before 1949 that a minor political party could 

nominate its candidates without circulating nomination petitions.1

The sky did not fall and voters were not befuddled over the number 

of choices on the ballot. Minor political parties freely placed presidential 

candidates on the ballot for the following parties: Green, Reform, 

Libertarian, Natural Law, Workers World, Constitution, Socialist, and 

Socialist Workers. Id. With the two major political party candidates, 

voters had to navigate a list that included a mere ten partisan 

candidates.

In 2004, six minor political parties nominated presidential 

candidates to the ballot: Constitution, Green, Libertarian, Reform, 

Socialist, and Socialist Workers. See

https://uselectionatlas.org/RESULTS/state.php?year=2004&fips=12&f=

1 For parties that were not considered “national” parties, or if they were 

not affiliated with a party that held a national convention, the path to 

the ballot was achieved by submitting nomination petition with 

signatures at least equal to 1% of registered voters in the state.

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0&off=0&elect=0&minper=0 (last accessed April 6, 2020). In 2008, 

eleven minor political parties nominated their candidates by 

certification: America’s Independent, Boston Tea, Constitution, Ecology, 

Green, Libertarian, Objectivist, Prohibition, Socialism and Liberation, 

Socialist, and Socialist Workers. See

https://uselectionatlas.org/RESULTS/state.php?year=2008&fips=12&f=

0&off=0&elect=0&minper=0 (last accessed April 6, 2020). The partisan 

candidate list voters had to consider was eight and thirteen in 2004 and 

2008 respectively.

In 2011, the legislature passed a new law which changed the 

definition of a “national” party to one that is “registered with and 

recognized as a qualified national committee of a political party by the 

Federal Election Commission.” (Winger Decl., ¶ 12.) This definition is 

the current definition at issue in this case. Fla. Stat. § 103.021(4)(a). 

This change severely limited the number of minor political parties that 

qualified to nominate their candidates by certification to the state’s 

presidential election ballot. The previous definition defined a national 

party as a party that was previously on the ballot in two states, a 

threshold that would typically be met by every party that also holds a 

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national convention. Fla Stat. § 103.021(4)(a) (2010 version) (“In this 

section, the term ‘national party’ means a political party established 

and admitted to the ballot in at least one state other than Florida.”)

In 2011, counsel for the American Elect’s party received a letter

from the Florida Secretary of State advising the party that the new 

definition of “national party” would not be enforced and all minor 

parties acted accordingly. (Winger Decl., ¶ 13.) A copy of the letter 

addressed to the Americans Elect Party is submitted as Exhibit A. Id.

Although the Americans Elect Party ultimately decided not to run a 

candidate in 2012, this letter provided the basis for five minor political 

parties to nominate candidates by certification even though they were 

not FEC-recognized: American Independent, Justice, Objectivist, Peace 

& Freedom, and Socialism and Liberation. (Winger Decl., ¶ 13.) The 

FEC-recognized minor parties that certified candidates for the 

presidential ballot in Florida totaled four: Constitution, Green, 

Libertarian, and Socialist. With the two major political parties, that put 

the presidential ballot at eleven partisan candidates. See

https://uselectionatlas.org/RESULTS/state.php?year=2012&fips=12&f=

0&off=0&elect=0&minper=0 (last accessed on April 6, 2020).

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In summary, the four presidential elections from 2000 through 2012 

featured minor political party ballot access by mere certification, 

including most particularly, 2012 wherein all minor political parties 

were granted access to the ballot by certification of the party chairman.

The total partisan candidates on the presidential ballot ranged from 

eight to thirteen candidates. Although the state says they need a 1% 

signature threshold to protect against a confusing ballot, the number of 

candidates based on actual experience are not so numerous to make a 

typical voter confused or make it difficult for them to locate their 

candidate of choice.

The 2016 Election Cycle – Plaintiffs’ Attempts to Nominate

In 2016, both Plaintiffs in this case attempted to nominate 

candidates for office. (Decl. of Ernest Bach, ¶ 4 and Ex. B) (“Bach 

Decl.”); (Decl. of Bryan Ellis, ¶ 4) (“Ellis Decl.”). Both received similar 

letters to the one set forth as Exhibit B that stated the Secretary of 

State would not be including their candidates on the presidential ballot 

for the 2016 election. (Bach Decl., ¶ 5; Ellis Decl., ¶ 5.) In both cases, 

this advisement occurred too close to the election for either party to 

seek judicial relief from the Secretary of State’s decision. (Bach Decl., ¶ 

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6; Ellis Decl., ¶ 6.) This action violated the Plaintiffs’ First and 

Fourteenth Amendment rights to association, speech, political activity, 

equal protection, and their respective members’ voting rights. 

Furthermore, because the Secretary of State barred the Plaintiffs’ 

presidential candidates from appearing on the 2016 presidential ballot, 

they fully expect the Secretary of State to bar them from certifying their 

candidates for the 2020 presidential ballot as other minor political 

parties are allowed to do, all in violation of the First and Fourteenth 

Amendments.

Argument

The requirement that a minor political parties be affiliated with a 

national party recognized by the Federal Election Commission as a 

“national committee” before they can nominate their candidates by 

certification rather than by petition circulation is not narrowly tailored 

to further a legitimate state interest, even under the sliding scale 

standard approved by Anderson v. Celebrezze, 460 U.S. 780 (1983) and 

violates the equal protection clause. Furthermore, the requirement that 

a minor political party submit a petition signed by one percent of the 

registered voters is an unconstitutional hindrance to the ballot under 

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the recent Georgia case that struck down a similar one-percent 

signature requirement statute: Green Party of Georgia v. Kemp, 171 

F.Supp.3d 1340 (N.D. Ga. 2016) (aff’d on appeal in Green Party of 

Georgia v. Kemp, 674 Fed. Appx. 974, 2017 U.S. App. LEXIS 1769, 2017 

WL 429257).2

These restrictions will severely injure the Plaintiffs and the 

Plaintiffs’ members First and Fourteenth Amendment rights and this 

injury will be irreparable if their candidates are not on the 2020 general 

election ballot. The potential injury to the State of Florida if the State 

cannot enforce the status quo is also substantially outweighed by the 

injury to be suffered by the Plaintiffs and Plaintiffs’ members if their 

candidate is barred from the ballot. Finally, the action would not violate 

the public interest if the preliminary injunction is granted.

I. Several Constitutional Rights are Violated by Florida’s 

Substantial Burdens to Ballot Access.

The right to vote, the right to associate for political purposes, the 

right of voters to cast votes effectively, and the right to be a political 

2 The Eleventh Circuit issued the following opinion: “Judgment of the 

district court is affirmed based on the district court’s well-reasoned 

opinion. See Green Party of Ga. v. Kemp, 171 F.Supp.3d 1340 (N.D. Ga. 

2016).

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candidate are fundamental constitutional rights protected by the First 

and Fourteenth Amendments. Burdick v. Takushi, 504 U.S. 428, 433 

(1992); Eu v. San Francisco County Democratic Central Committee, 489 

U.S. 214, 224 (1989); Tashjian v. Republican Party of Connecticut, 479 

U.S. 208, 214 (1986); and Anderson, 460 U.S. at 787.

First Amendment rights are implicated whenever a state action 

imposes a barrier to the free exercise of the voting franchise or any First 

Amendment Right. That barrier does not have to wholly prevent voters 

from exercising a First Amendment right to be found unconstitutional. 

And “‘that right is burdened when the state makes it more difficult for 

these voters to cast ballots.’” Molinari v. Bloomberg, 564 F.3d 587, 604 

(2nd Cir. 2009) (quoting Price v. New York State Bd. of Elections, 540 

F.3d 101, 108 (2nd Cir. 2008)) . The First Amendment creates an open 

marketplace where ideas, most especially political ideas, may compete 

without government interference. It does not call on federal courts to 

manage the market by preventing too many buyers from settling on a 

single product.” New York State Bd. of Elections v. Lopez Torres, 552 

U.S. 196, 208 (2008) (internal citations omitted). “[T]he First 

Amendment ‘has its fullest and most urgent application’ to speech 

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uttered during a campaign for political office.” Eu, 489 U.S. at 223

(quoting Monitor Patriot Co. v. Roy, 401 U.S. 886, 913 (1971)). Thus,

any limits on speech in the context of a political campaign is subject to 

strict scrutiny. Citizens United v. Federal Election Commission, 558 

U.S. 310, 340 (2010).

In ballot access cases, the First Amendment right of free association 

is found in three associational relationships: (1) the right of voters to 

associate through the organization of a political party; (2) the rights of 

an organized political party to control the determination of those 

candidates with which it associates; and (3) the rights of an organized 

political party to control its nominations by controlling who may 

participate in such nominations. Democratic Party of the United States 

v. Wisconsin ex rel. La Follette, 450 U.S. 107, 121-122 (1981).

The implications of the Equal Protection Clause on the 

constitutionality of ballot access statutes generally focuses on (a) the 

disparate treatment of major and minor parties, and (b) the disparate 

treatment of the candidates of parties and independent candidates. See 

Anderson, 460 U.S. at 793-94:

A burden that falls unequally on new or small political 

parties or on independent candidates impinges, by its very 

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nature, on associational choices protected by the First 

Amendment. It discriminates against those candidates and –

of particular importance – against those voters whose 

political preference lie outside the existing political parties. . 

. . By limiting the opportunities of independent-minded 

voters to associate in the electoral arena to enhance their 

political effectiveness as a group, such restrictions threaten 

to reduce diversity and competition in the marketplace of 

ideas.

Anderson, 460 U.S. at 793-94 (internal citations omitted).

Here, in this Florida construct, there are two statutes that limit 

access to the ballot. First, the Plaintiffs are barred from the ballot if 

they are not associated with a party that is nationally recognized by the 

Federal Election Commission (“FEC”) as a national committee even 

though there is no indication that FEC recognition has any logical 

correlation to voter support in Florida. Second, the requirement that a 

minor political party submit a ballot access petition signed by onepercent of registered voters is unconstitutionally burdensome for the 

same reasons set forth by Green Party of Georgia, 171 F.Supp.3d 1340 

(aff’d on appeal in Green Party of Georgia, 674 Fed. Appx. 974).

As further explained below, these burdens are either 

unconstitutionally burdensome in their own right, or are applied in 

violation of the equal protection clause. And the state’s likely 

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justification that ballots must be stringently regulated to avoid voter 

confusion on the ballot proves a baseless reason for the regulation when 

from 2000 through 2008, the three presidential election ballots had no 

practical limit on ballot access other than organizing as a minor 

political party and associating with a national party, and the 2012 

presidential election ballot allowed all minor political parties to 

nominate candidates by certification. The largest election ballot had 

fourteen partisan options between 2000 and 2012, and 2012 proved that 

the great state interest we need to protect against – a confusing and 

unwieldy ballot – was nothing more than a non-existent bogeyman. A 

list of eleven names is not confusing. Based on this actual experience, 

and the relative weakness of the state’s interest to protect against an 

unwieldy ballot, the state should have to meet strict scrutiny in order to 

justify any regulation requiring anything in excess of a party 

chairman’s certification.

II. Judicial Review of Election Laws Requires Consideration of 

the Statutes in the Aggregate, and a Weighing of the 

Burdens Against the State Justifications, and Recognizing 

that Fundamental Rights Require Strict Scrutiny.

Political parties exist to advocate positions and philosophies and 

serve as a vehicle where like-minded people can assemble. “Under our 

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political system, a basic function of a political party is to select 

candidates for public office to be offered to voters at elections.” Kusper v. 

Pontikes, 414 U.S. 51, 58 (1973).

The right to form a party for the advancement of political 

goals means little if a party can be kept off the election ballot 

and thus denied an equal opportunity to win votes. So also, 

the right to vote is heavily burdened if that vote may be cast 

only for one of two parties at a time when other parties are 

clamoring for a place on the ballot.

Williams v. Rhodes, 393 U.S. 23, 31 (1968).

Thus, “‘only a compelling state interest in the regulation of the subject 

within the State’s constitutional power to regulate can justify limiting 

First Amendment freedoms.’” Id. (quoting NAACP v. Button, 371 U.S. 

415, 438 (1963)).

Ballot access limiting statutes must be considered in the aggregate: 

“The concept of ‘totality’ is applicable . . . in the sense that a number of 

racially valid provisions of elections laws may operate in tandem to 

produce impermissible barriers to constitutional rights.” Storer v. 

Brown, 415 U.S. 724, 737 (1974). “A court would want to examine the 

cumulative burdens imposed by the overall scheme of electoral 

regulations upon the rights of voters and parties to associate through 

primary elections.” Clingman v. Beaver, 544 U.S. 581, 607 (2005) 

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(O’Connor, concurring) (recognizing that the appellant failed to properly 

raise the issue) (emphasis in original).

A district court evaluates constitutional challenges to state election 

laws as the Supreme Court set out in Anderson, 460 U.S. 780:

[A district court] must first consider the character and 

magnitude of the asserted injury to the rights protected by 

the First and Fourteenth Amendments that the plaintiff 

seeks to vindicate. It then must identify and evaluate the 

precise interests put forward by the State as justifications 

for the burden imposed by its rule. In passing judgment, the 

Court must not only determine the legitimacy and strength 

of each of those interests, it also must consider the extent to 

which those interests make it necessary to burden the 

plaintiff’s rights.

Anderson, 460 U.S. at 789.

“[A]s a general matter, ‘before that right [to vote] can be restricted, 

the purpose of the restriction and the assertedly overriding interests 

served by it must meet close constitutional scrutiny.’” Dunn v. 

Blumstein, 405 U.S. 330, 336 (1972) (internal citations omitted). This 

scrutiny “requires the Government to prove that the restriction furthers 

a compelling interest and is narrowly tailored to achieve that interest.” 

Citizens United, 558 U.S. at 312 (internal quotations omitted). 

“Ordinarily, ‘the strict scrutiny test is applicable under the Equal 

Protection Clause to classifications affecting the exercise of 

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fundamental rights.’” Fulani v. Krivanek, 973 F.2d 1539, 1542 (11th 

Cir. 1992) (quoting American Booksellers v. Webb, 919 F.2d 1493, 1499 

(11th Cir. 1990)).

In testing the legitimacy of a State’s asserted interest, a court is not 

required to accept at face value any justification the state may give for 

its practices. Rather, the court must determine the offered justification 

is real, and not merely a pretextual justification for its practices. 

Reform Party of Allegheny County v. Allegheny Count Dep’t of Elections, 

174 F.3d 305, 315 (3rd Cir. 1999).

Even an otherwise legitimate state concern cannot be accepted 

without evidence that the problem the state is asserting is real.

The State has made no clear argument regarding the precise 

interests it feels are protected by the regulations at issue in 

the case, relying instead on generalized and hypothetical 

interests identified in other cases. Reliance on suppositions 

and speculative interests is not sufficient to justify a severe 

burden on First Amendment Rights.

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 593 (6th Cir. 

2006).

Therefore, it is insufficient for the state to merely assert a defense; it 

must rather present evidence of a real problem that its ballot access 

limiting statutes seek to address. In addition to actually having a 

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legitimate reason for its practice, the state must also show that the 

statute actually addresses the problem. Reform Party, 174 F.3d at 315.

There are also limits on the State’s interests when elections to 

federal office are involved: “The Framers understood the Elections 

Clause as a grant of authority to issue procedural regulations, and not 

as a source of power to dictate electoral outcomes, to favor or disfavor a 

class of candidates, or to evade important constitutional restraints.” 

United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 833 (1995).

Here, actual experience from 2000 through 2012 shows that almost 

unfettered access to the ballot by a minor party chairman’s certification 

will not result in a confusing or unwieldly ballot. Furthermore, as 

outlined below, the criteria for access to the ballot, namely that the FEC 

recognized a national party as a national committee, has no logical 

correlation to the level of party support in the Florida electorate, and 

consequently, the statute fails to actually address the problem the state 

claims exists.

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III. The Florida Statutes Are Unconstitutionally Severe Burdens 

on First and Fourteenth Amendment Rights of Free Speech 

in the Arena of Political Discourse, Association by the 

Parties and their Members, and the Rights of the Parties’ 

Members and Others to Vote for the Candidates of their 

Choice.

Fla. Stat. § 103.021(4) is unconstitutional because the FEC’s 

determination that a party constitutes a national committee fails to 

establish that a minor political party has any modicum of support under 

Florida law, and the alternative one-percent signature requirement is 

unconstitutional for the same reason articulated in Green Party of 

Georgia v. Kemp, 171 F.Supp.3d 1340 (N.D. Ga. 2016), and the fact that 

other minor political parties, some of whom may have a lesser modicum 

of support in Florida than the Plaintiffs are exempted because they had, 

at some point in their history, a sufficiently large enough party around 

the country to be considered a “national committee” by the FEC.

A. Florida’s Reliance on the FEC’s Determination that a 

Party Constitutes a National Committee Does Not Further 

a Legitimate State Interest and is Unconstitutional.

First, as to the requirement that a minor political party be 

associated with an organization recognized by the FEC as national 

committee implicates rights to free speech, association, and ballot 

access, the statute makes no logical sense when you consider the types 

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of organizations that have been accepted and rejected for national 

committee recognition by the FEC, and you compare them to 

organizations that have various levels of political support in the 

Florida. The burdens are severe because failing to convince the FEC 

that it deserves national committee status potentially bars the minor 

party from the ballot and in turn, completely expels the party and its 

members from that election cycle’s political discourse.

The equal protection clause is implicated because minor political 

parties that have very little Florida voter support might be recognized 

by the FEC, and in other instances, the FEC might reject a party that 

has significant Florida support imposing on that party a significant 

burden of conducting a ballot access signature campaign. Richard 

Winger (“Winger”) is an expert in ballot access laws and both 

independent candidates and minor political parties’ participation in 

elections. (Winger Decl., ¶ 3.) Winger’s curriculum vitae sets forth his 

extensive experience and expertise. (Winger Decl., ¶ 3, C.V. included 

with declaration.)

As fully set forth in Winger’s declaration at paragraphs 15-41, there 

is no logical correlation of the FEC’s decisions to grant or reject a 

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political party’s application for national committee status. To date, only 

six parties besides the two big ones – Democrats and Republicans –

have been granted national committee status, and those are: (1) 

Libertarian Party in 1975; (2) Socialist Party3 in 1980; (3) Natural Law 

Party in 1992; (4) U.S. Taxpayers Party in 1995 (which subsequently 

changed its name to Constitution Party in 1999); (5) Reform Party in 

1998; and (6) Green Party in 2001. Id., ¶ 15.

In turn, nine parties have applied for national committee 

recognition and were denied: (1) Liberal Party of New York in 1976; (2) 

Pyramid Freedom Party in 1978; (3) Citizens Party in 1980; (4) 

National Unity Party in 1980; (5) Populist Party in 1988; (6) U.S. 

Taxpayers Party in 1992;4 (7) Green Party in 1996;5 (8) 1787 Party in 

2013; and (9) United Party in 2016. Id. ¶ 16.

As such, there are only six minor parties that could possibly qualify 

for ballot access in Florida by virtue of their FEC national committee 

3 This Socialist Party is not associated with the Plaintiff in this case: 

The Party for Socialism and Liberation.

4 The U.S. Taxpayers Party was subsequently granted national 

committee status two years later in 1994. (Winger Decl., ¶ 15.)

5 The Green Party was subsequently granted national committee status 

five years later in 2001. (Winger Decl., ¶ 15.)

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recognition. But only four of those parties are even organized as minor 

political parties in Florida. See

https://dos.myflorida.com/elections/candidates-committees/politicalparties/ (last accessed on April 6, 2020). To become a minor political 

party, you must merely follow the steps set forth in Fla. Stat. § 

103.095(1). Analyzing Fla. § 103.095(1)-(3), a minor political party can 

form with as few as three Florida residents and hence, if the Socialist 

Party or National Law Party found three sympathetic Florida residents 

to organize as an affiliated minor political party, they could obtain 

immediate access to the 2020 Presidential ballot by mere certification 

without establishing any other modicum of Florida electoral support.

Both Plaintiffs are well established in Florida, having been active in 

Florida politics for several election cycles with many more than three 

members. (Bach Decl., ¶ 7; Ellis Decl., ¶ 7.) Other than the most recent 

presidential election in 2016, when the Secretary of State barred them 

from placing their candidates on the ballot, these parties have both 

place candidates on the ballot in 2008 and 2012.

There are also good reasons not to seek national committee 

recognition because national committee recognition brings with it added 

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responsibilities to keep and file detailed federal campaign reports. 

(Winger Decl.,¶ 18.) A party may not believe that taking on that added 

administrative obligation is in their best interest, but that does not 

mean they can’t have an impact in the election. Six parties have never 

asked for national committee status and yet polled over 50,000 votes 

nationwide. Id.

The FEC is also not considering particular states’ interests when 

deciding to grant or deny national committee recognition. For example, 

the FEC tends to deny applications unless the party first places 

candidates on the ballot in several states and is organized across the 

nation. Id. ¶¶ 20-21. This requirement harms the Independent Party in 

particular because, true to its name, it desires to be Independent from 

any national organization. (Bach Decl., ¶ 8.) Rather, the Independent 

Party remains free to associate with any candidate they choose in each 

election cycle. Id.

This is not an uncommon or ineffective approach to exercising their 

rights to participate in a political election. Howie Hawkins was 

nominated to be the Socialist Party USA candidate for President, but is 

also seeking the nomination of the Green Party. 

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https://howiehawkins.us/howie-hawkins-wins-socialist-party-usanomination-green-candidate-seeks-to-build-left-unity-with-multiplenominations/ (last accessed on March 25, 2020). Howie Hawkins’ 

website also indicates that he is seeking the nomination of several 

“state-level independent progressive parties.” Id. These include the 

Peace and Freedom Party of California, the Progressive Party of 

Oregon, the Citizens and Labor parties of South Carolina, and the 

Liberty Union and Progressive parties of Vermont. Id. As the Supreme 

Court has said:

This First Amendment freedom to gather in association for 

the purpose of advancing shared beliefs is protected by the 

Fourteenth Amendment from infringement by any State. . . . 

And the freedom to associate for the common advancement 

of political beliefs, . . . necessarily presupposes the freedom 

to identify the people who constitute the association, and to 

limit the association to those people only.

Democratic Party, 450 U.S. at 121-22 (internal quotations and citations 

omitted) (upholding the right of the Democratic National Committee to 

bar Wisconsin delegates from participation in the national convention if 

the Wisconsin open primary election violates the National Committee’s 

convention rules). Here, the Independent Party and its members like to 

retain the control of who they nominate as a candidate for president in 

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the state party, and are not necessarily interested in submitting that 

control to a national convention. (Bach Decl., ¶ 8.)

The Independent Party’s approach to these elections is a legitimate 

exercise of its constitutional right of association, and imposing ballot 

access requirements that would require them to abandon that approach 

is severely burdensome. Indeed, Winger has charted the number of 

states that were organized in a single state and also nominated a 

candidate for office. (Winger Decl., ¶ 43, Ex. D.) Several names on the 

chart pop off the page as well-known household names and very 

influential in elections over the last 25 years or so, including Donald 

Trump (who actually won the Presidency appearing as the nominee for 

the American Independent Party of California), Ralph Nader, Ross 

Perot and others. Id.

Finally, the FEC does not consider the modicum of support 

nationwide or in any states to determine national committee eligibility

making this requirement an extremely weak proxy to show a modicum 

of support in Florida. The Libertarian Party polled only 3,673 votes in 

the entire nation in 1972, but was granted national committee status in 

1975. (Wegner Decl., ¶ 23.) Then in 1980, the Socialist Party polled 

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6,898 votes nationwide and was granted national committee status in 

December 1980, but then the FEC rejected the Citizens Party 

application despite polling 234,294 nationwide in 1980. Id., ¶ 24.

In 1988, the New Alliance Party polled 217,219 in the nationwide 

presidential election, but was denied national committee status, but the 

Socialist Party, which continued to be recognized only polled 3,882 

nationwide votes. Id., ¶¶ 25-26. And the examples continue in Winger’s 

declaration at ¶¶ 27-41, all of which are important for the Court to 

review. What these examples make clear is that there is absolutely no 

correlation to Florida electorate support established by FEC national 

committee recognition.

If a modicum of voter support is not a factor in the FEC’s national 

committee status determinations, the question has to be asked: what is 

the logic behind Florida using a 1% voter signature requirement as an 

alternative ballot access avenue if a minor political party is not an FEC 

recognized national committee? The answer is obvious, there is no 

logical basis. The entire construct makes no sense and cannot be 

explained, and it is the particular state’s statutory schema that must be 

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analyzed in context to determine whether it passes constitutional 

muster. Jenness v. Fortson, 403 U.S. 431, 438 (1971).

Florida’s current statutory construct does not hold up to the 

Supreme Court’s constitutional test set forth in Anderson and the 

Plaintiffs’ equal protection and other First Amendment rights are 

violated by the unequal treatment and imposing burden placed upon 

them to gain ballot access.

B. The One Percent Signature Requirement is 

Unconstitutional Pursuant to Controlling Eleventh 

Circuit Law.

The requirement that any local party is required to obtain 

signatures from one percent of the registered voters in the state is 

unconstitutional under the Anderson v. Celebrezze for the reasons 

articulated in Green Party of Georgia v. Kemp, 171 F.Supp.3d 1340 

(N.D. Ga. 2016). Both Plaintiffs are severely burdened by the onepercent requirement because they would both require the use of paid 

professional circulators to meet the deadline and the cost would 

unpredictable and prohibitive to both parties.

According to the Florida Department of State’s website the last 

general election was in 2018 and there were a total of 13,396,622 

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registered voters in Florida. See

https://dos.myflorida.com/elections/data-statistics/voter-registrationstatistics/voter-registration-reportsxlsx/voter-registration-by-partyaffiliation/ (last accessed on April 6, 2020). The one-percent signature 

requirement would require the Plaintiffs to obtain 133,966 valid 

signatures, a task that would require a massive financial and time 

commitment that other minor parties are not required to achieve, even 

some that poll at much lower levels than the Plaintiffs.

The costs prohibitions would operate as a bar to the ballot to these 

Plaintiff parties. There is no way they could come close to paying the 

$1-3 necessary to obtain the over 150,000 signatures necessary to get on 

the ballot and the $15,000-$20,000 necessary to pay to the county 

supervisors that have to review the signature petitions as required by 

Fla. Stat. § 97.097(4). (Bach Decl., ¶ 9; Ellis Decl., ¶ 8.)

In Green Party of Georgia, the Court faced a challenge to a onepercent signature requirement that applied to all minor political parties 

seeking to nominate a presidential candidate (unless the minor party 

also obtained at least one-percent of the vote in the previous election).

In other words, a party could nominate a presidential candidate if the 

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party either met a performance standard or a petition standard. The 

Florida statutory schema is actually more complicated because several 

minor political parties avoid the signature requirement entirely, not 

because they performed in the last election, but rather because they are 

associated with a party that, at some point in that party’s history, was 

recognized by the FEC as a national committee. Those parties don’t 

have to show any substantial support in Florida by either obtaining a 

certain signature percentage of registered voters or performing to a 

certain level in the prior election cycle. And this of course weighs

heavily in favor of the Plaintiffs’ claims that their rights are severely 

burdened by a law that is not designed to meet a legitimate state 

concern.

Nonetheless, the Green Party of Georgia district court’s analysis 

also applies here. The case applied the constitutional standard set forth 

in Anderson articulated above. The court rejected the state’s argument 

that the one percent signature requirement was a modest requirement 

that supported a legitimate state interest of avoiding voter confusion. 

Green Party of Georgia, 171 F.Supp.3d at 1359 and 1365. The district 

court pointed to the fact that in this particular case, Georgia’s 50,000+ 

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signature requirement wasn’t narrowly tailored to further a state 

interest. Id. at 1365. “Georgia offer[ed] no evidence of voter confusion. 

And Justice Harlan, concurring in Williams v. Rhodes, opined that ‘the 

presence of eight candidacies cannot be said, in light of experience, to 

carry a significant danger of voter confusion.’” Id. at 1365-66 (quoting 

Williams v. Rhodes, 393 U.S. 23, 47 (1968). That is similar to what 

we’ve had here. For four presidential election cycles from 2000 through 

2012, Florida allowed all minor political parties to nominate their 

candidates by certification, and the Plaintiffs know of no reports of 

widespread voter confusion even though at least one ballot had fourteen 

partisan candidates listed. And although Justice Harlan held that eight 

candidacies cannot be said to be confusing, the Plaintiffs assert that a 

list of fourteen is still in that same non-confusing arena.

Here, we have Florida statute that allows minor political parties 

two avenues to nominate presidential candidates: one that allows a 

party to certify a candidate without establishing any modicum of 

support in Florida, and one that requires an enormous commitment in 

terms of both human time and financial resources, and one that most 

minor parties probably could not meet if required to do so. Under these 

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circumstances, the Supreme Court’s case of Illinois State Bd. of 

Elections v. Socialist Workers Party, 440 U.S. 173 (1979) seems most 

apt.

In Socialist Workers Party, Illinois had a signature requirement for 

ballot access in a statewide election that required a fixed 25,000 

signatures. Id. at 175. In a local election, the signature requirement 

was 5% of the number of persons who voted in the last election. Id. at 

176. As the City of Chicago population grew, it ended up that political 

parties that wanted access to the Chicago ballot had to obtain 63,373 

valid signatures. Id. at 177. Therefore, a new political party could gain 

ballot access in a race for governor by submitting 25,000 signatures 

from residents in the entire state, but to get on the ballot in Chicago, 

the party had to submit 63,373 signatures from a smaller geographic 

area. 

The Supreme Court applied the equal protection clause and struck 

down the 5% signature requirement because when you considered the 

statutory schema together, they could not be reconciled. Here in 

Florida, we have the same situation. The one-percent signature 

requirement cannot be reconciled with statute that allows another 

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party access for what really amounts to significant support outside of 

Florida. If a party is popular outside of Florida, then they become 

effectively exempt from showing any modicum of support in Florida 

before presenting their candidates to the voters on a general election 

ballot. For this reason, the one-percent signature requirement is due to 

be deemed unconstitutional.

Finally, no minor or new political party or independent candidate 

has ever achieved ballot access with a signature requirement as high as 

the one effective in Florida under Fla. Stat. § 103.021(4)(b) except once 

in California. Winger prepared a chart for his newsletter Ballot Access 

News in 2009 outlining the highest petition requirement met by a 

candidate. The chart is attached as Exhibit C. (Winger Decl., ¶ 42, Ex. 

C.) This chart makes clear that it’s not necessarily just a high 

percentage of the electorate that can provide an effective 

unconstitutional bar to the ballot, but also the size of the signature 

campaign itself is an effective bar. This Court should grant this motion 

for preliminary injunction and allow all minor political parties to 

nominate their candidates by certification to the Secretary of State by 

September 1, 2020.

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IV. Florida Should be Preliminarily Enjoined from Enforcing 

Fla. Stat. § 103.021(4) and Allow All Minor Political Parties to 

Nominate Their Presidential Candidates by Certification to 

Avoid an Irreparable Injury Because the Plaintiffs are 

Likely to Prevail on the Merits, the Damages to the State are 

Slight if they Exist at All, and the Injunction Would Not be 

Adverse to Public Interest.

As articulated above, the standards to obtain a preliminary 

injunction require a showing by the movant that they have a 

substantial likelihood of success on the merits, that they will suffer an 

irreparable injury without the injunction, that the threatened injury 

outweighs the damages the injunction might cause to the opposing 

party, and the injunction would not be adverse to the public interest. 

Callahan, 939 F.3d at 1257.

Here, Florida’s reliance on the FEC national committee 

determination has no logical correlation to showing any modicum of 

electoral support in Florida and as such, requiring the Plaintiffs to 

prove that support by conducting an extremely expensive and timeconsuming signature campaign violates the Plaintiffs’ rights under the 

Equal Protection Clause. And the one-percent signature requirement is 

also unconstitutional under the analysis provide by Green Party of 

Georgia and the Supreme Court’s Socialist Workers Party cases. 

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Because the Florida statutes are not narrowly tailored to further a 

legitimate state interest, the Independent Party and Party for Socialism 

are substantially likely to prevail on the merits.

The Independent Party and Party for Socialism are also set to suffer 

an irreparable injury if they are barred from nominating a candidate to 

the 2020 ballot. The 2020 ballot will occur in November and once that 

date passes, there is no remedy at law, including monetary damages, 

that could cure the harm. These two parties already suffered a similar 

fate in 2016 when they were advised at the very last minute that their 

nominations were rejected.

The injury to the plaintiffs is also great while the potential harm 

the state might suffer if the injunction is granted is near nil. There is no 

significant additional cost by adding two names to the presidential 

ballot because the ballots will have to be printed or organized after all 

of the other minor political parties nominate their candidates by 

certification by September 1, 2020. 

And finally, the injunction would serve no harm to the public. 

Rather, the public might be served if they were provided two additional 

options at the ballot box, and the public will also have the opportunity 

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to hear from the nominated candidates during the campaign talk about 

the issues that are important to them.

For the foregoing reasons, the Plaintiffs respectfully request the 

Court grant the motion for preliminary injunction barring enforcement 

of the challenged provisions of Fla. Stat. § 103.021(4) and allow the 

Plaintiffs to nominate their Presidential and Vice Presidential 

candidates to the Florida November general election ballot by 

certification as other minor political parties in Florida are allowed to do.

Dated this 6th day of April, 2020.

Respectfully submitted,

THE BERNHOFT LAW FIRM, S.C.

Attorneys for Plaintiffs

By: /s/ Daniel J. Treuden

Daniel J. Treuden

Admitted pro hac vice

1402 E. Cesar Chavez Street

Austin, Texas 78702

telephone: (512) 582-2100

facsimile: (512) 373-3159

djtreuden@bernhoftlaw.com

Case 4:20-cv-00110-MW-CAS Document 9 Filed 04/06/20 Page 35 of 36
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CERTIFICATE OF SERVICE

The foregoing document was served on the Defendant by the ECF 

system at the time of filing:

ashley.davis@dos.myflorida.com

Deputy General Counsel Ashley E. Davis

Attorney for:

Laurel M. Lee, Florida Secretary of State

R.A. Gray Building

500 S. Bronough Street

Tallahassee, Florida 32399

Signed this 6th of April, 2020.

 /s/ Daniel J. Treuden

Daniel J. Treuden

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