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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. )

)

PLAINTIFF’S BRIEF IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS

COME NOW The Independent Party of Florida (“Independent 

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

Socialism”) (collectively the “Plaintiffs”), by and through their attorney 

of record, Daniel J. Treuden, and hereby respectfully oppose Defendant 

Laurel M. Lee’s (“State”) Motion to Dismiss. This opposition brief is 

filed pursuant to N.D. Fla. Loc. R. 7.1.

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STANDARD OF REVIEW

A motion under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the 

Complaint:

As the Supreme Court has observed, “the issue is not 

whether a plaintiff will ultimately prevail but whether the 

claimant is entitled to offer evidence to support the claims. 

Indeed it may appear on the face of the pleadings that a 

recovery is very remote and unlikely but that is not the test.” 

Scheuer [v. Rhodes, 416 U.S. 232, 236 (1974)]. This Court 

has acknowledged that “a complaint should not be dismissed 

for failure to state a claim pursuant to Fed. R. Civ. P. 

12(b)(6) ‘unless it appears beyond doubt that plaintiff can 

prove no set of facts that would entitle him to relief.’” 

Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir. 

1986) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 . . . 

(1957)).

Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986).

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 

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.

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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).

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).

The sliding scale outlined in Anderson and recognized in Stein is 

important in considering the level of scrutiny that the Court must apply 

when balancing the competing claimed state interests and Plaintiff’s 

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constitutional rights. The more burdensome the regulation in election or 

ballot access matters, the more stringent the test the State must meet, 

and in turn, the more likely a set of facts and circumstances exists 

entitling the Plaintiffs to relief. In a case where the regulation does not 

rationally further a state interest, strict scrutiny applies.

ARGUMENT

The motion to dismiss asserts a failure to state a claim as to each of 

the two alternative means for minor parties to access the ballot. The 

first involves the one-percent signature requirement, and the State

primarily relies on prior court cases that have previously upheld a onepercent signature requirement for ballot access. The State, however, 

fails to acknowledge Green Party of Georgia v. Kemp, 171 F.Supp.3d 

1340 (N.D. Ga. 2016) (aff’d by Green Party of Georgia v. Kemp, 2017 

U.S. App. LEXIS 1769 (11th Cir. 2017)) which struck down a onepercent signature requirement because the plaintiff in that case was 

able to show that the signature requirement was unconstitutionally 

burdensome.

The State also argues that the Plaintiffs failed to state a claim by 

taking a quotation out of context from ¶ 33 of the complaint. The 

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quotation refers to certification as being “relatively easy,” which it is for 

all parties associated with a national committee. The State conveniently 

omits the last sentence of ¶ 33 which limits the breadth of the “easier 

path” comment. After reading the full paragraph in context, it is not 

reasonable to conclude that the Plaintiffs are asserting that affiliating 

with an FEC-recognized national committee is easy or convenient; quite 

to the contrary, the Plaintiffs assert that it is a significant burden.

Even more notable is the State’s failure to explain how a minor 

party’s affiliation with a national party recognized by the FEC as a 

national committee establishes the necessary “significant modicum of 

support” required for ballot access in Florida. (DE 8, p. 4.) One might 

understand that this requirement might establish a modicum of support 

outside of Florida, but it has no relation to the relevant modicum of 

support inside of Florida. This is evidenced by the fact that the FEC 

recognizes several parties as national committees that have no 

modicum of support in Florida because no minor party affiliates with 

them. The State’s failure to justify this regulation requires the 

application of strict scrutiny under the Anderson balancing test.

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I. Plaintiffs’ Challenge to Florida’s One Percent Requirement 

States a Claim Upon Which Relief Can Be Granted.

The State relies primarily on three prior cases, each of which 

upheld a prior Florida’s signature requirement, and requests dismissal 

on the grounds that the signature requirement in Florida is 

dispositively decided. Nothing could be further from the truth, as was

recently made clear in Green Party of Georgia v. Kemp, 171 F.Supp.3d 

1340 (N.D. Ga. 2016) where the district court struck down a one-percent 

signature requirement in Georgia. The district court in Green Party

faced a pre-answer motion to dismiss similar to that which the State 

filed here, and the court granted that motion, only to have the Eleventh 

Circuit reverse and remand for further proceedings. Id. at 1345.

The Green district court described the procedural history in its 

recent order and taking note of it here is important because it serves as 

persuasive authority involving a substantially similar situation:

The Court dismissed Plaintiffs’ Complaint on July 17, 2012, 

concluding that because higher courts have held that the 

requirement under O.C.G.A. § 21-2-170 for a petition 

containing at least five percent of the registered voters for 

certain elections was not unconstitutional, the requirement 

that a presidential candidate’s petition contain one percent 

of the registered voters would not be unconstitutional.

Id. 

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The district court then recounted several cases from the Supreme 

Court and the Eleventh Circuit Court of Appeals, including one of the 

cases upon which the State relies in its motion to dismiss, namely,

Jenness v. Fortson, 403 U.S. 431 (1971). Id. and DE 8, p. 4. “[T]he Court 

of Appeals reversed and remanded, holding that this Court employed 

the type of ‘litmus-paper test’ that the Supreme Court rejected in 

Anderson v. Celebrezze, 460 U.S. 780, 780 . . . (1983), and directed this 

Court to instead apply Anderson’s balancing approach.” Green Party of 

Georgia, 117 F.Supp.3d at 1345 (quoting Green Party of Georgia v. 

Georgia, 551 F.App’x 982 (11th Cir. 2014) (hereinafter “Green Party I”).

The Georgia district court then noted the key to the Eleventh Circuit’s

decision, namely “that this Court erred in dismissing Plaintiffs’ action 

because past decisions ‘do not foreclose the parties’ right to present the 

evidence necessary to undertake the balancing approach outlined in 

Anderson.’” Id. (quoting Green Party I) and further citing Bergland v. 

Harris, 767 F.2d 1551, 1554 (11th Cir. 1985)).

After reversal, the parties in Green Party of Georgia submitted 

evidence and the case ultimately resolved on summary judgment. Id. at 

1372. The crux of the decision is found when the district court compared 

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the burdens to ballot access considered in Stein v. Alabama Secretary of 

State, 774 F.3d 689 (11th Cir. 2014) to the burdens required by the 

Georgia election code. Stein involved an Alabama election code that 

required minor party candidates to obtain about 44,000 signatures to 

appear on the ballot as a party candidate, but allowed those same 

candidates to appear as an independent candidate with only 5,000 

signatures. Green Party of Georgia, 171 F.Supp.3d at 1370. The Stein

Court summarized this by saliently observing: “‘[N]o one argues that 

Alabama’s law keeps third-party candidates off the ballot, only that it 

makes it harder for them to communicate their party affiliation to 

voters.’” Green Party of Georgia, 171 F.Supp.3d at 1371 (quoting Stein, 

774 F.3d at 696).

In contrast, the Georgia statute requires identical signature 

requirements for both minor party candidates and candidates running 

independently. See Green Party of Georgia, 171 F.Supp.3d at 1371. The 

Georgia district court recognized that “[t]his is the crucial difference 

between the Alabama laws upheld in Stein and the Georgia law that the 

Court strikes down here.” Id. Because the signature requirement 

upheld in Stein did not prohibit the same candidates from ballot access 

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by submitting an independent candidate petition with only 5,000 

signatures, the Eleventh Circuit held that the ballot access signature 

requirement was not an unconstitutional burden. By contrast, the 

Georgia statute was struck down because the burdensome signature 

requirement for minor political party candidates was the same as the 

requirement for independent candidates. Id. at 1371.

Florida similarly requires the same number of signatures for minor 

political party candidates as independent candidates, and consequently, 

for the same reasons the Georgia district court distinguished Stein from 

the facts it was considering, this court should similarly distinguish 

Stein here. This case requires examination of the Florida statutes as a 

whole. They must be considered in light of each other to determine 

whether there is a significant unconstitutional burden to ballot access. 

Complicating matters in this case is the fact that Florida allows minor 

political parties the opportunity to enjoy ballot access if they are 

associated with a party that might have a significant modicum of 

support outside of Florida. Fla Stat. § 103.021(4)(a). How that factors 

into the Anderson v. Celebrezze balancing test when considering the 

burden a one-percent signature requirement placed on candidates is 

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something that hasn’t been considered before by any case the Plaintiffs 

can locate, and because it hasn’t been considered before, it is impossible 

to say at this early stage that no set of facts exists such that the onepercent signature requirement and the affiliation requirement would 

not be struck down under the Anderson balancing test.

The Plaintiffs anticipate that this court will have to weigh the 

burden placed on a minor political party that is required to associate 

with others outside of Florida that is either already recognized by the 

FEC as a national committee or that can work to obtain enough 

national support to become FEC-recognized. It doesn’t require a vivid 

imagination to envision that this requirement will be deemed a 

significant burden on Florida minor parties under the Anderson

balancing test if the State can’t justify the requirement as furthering 

the stated Florida interest that these ballot access regulations are 

designed to measure the modicum of support inside the State of Florida.

And if this regulation cannot be justified, then all minor parties should 

be treated similarly and should be allowed to obtain ballot access by 

sending a certification to the Secretary of State.

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Finally, the State points out that the Complaint lacks an allegation 

that the Plaintiffs attempted to and failed to obtain the requisite 

signatures. This is not fatal to the Complaint because it is the burden

the statute imposes on the Plaintiffs that makes the statute 

unconstitutional. The Complaint sufficiently alleges that neither party 

can accomplish the heavy burden of obtaining over 132,000 valid 

signatures for ballot access, and the Plaintiffs will be able to submit 

evidence supporting that fact. Indeed, evidence has already been 

submitted to the record in support of the Plaintiffs’ motion for 

preliminary injunction by the Declaration of Richard Winger that no 

candidate ballot access petition has ever succeeded outside of California 

that required at least 132,781 signatures. (DE 9-1, ¶ 42 and DE 9-4, 

Exhibit C.)

The Eleventh Circuit’s Green Party I rule that plaintiffs should be 

given an opportunity to present evidence relevant to the Anderson

balancing test is a sensible and sound one, because every state’s 

election regulations are unique and are being frequently modified. In 

that vein, with the exception of Stein (which was distinguished above),

each of the cases cited by the State to support their argument that the 

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one-percent signature requirement has already been dispositively 

decided were issued prior to Florida adopting the national affiliation 

requirement for minor party candidate ballot access. As outlined above, 

this change to ballot access regulations fundamentally altered the 

Anderson balancing test because the new rule undermines the State’s 

proffered interest in requiring a modicum of support in Florida. For all 

of these reasons, the Plaintiffs state a claim that the one-percent 

signature requirement is unconstitutionally burdensome.

II. The Claim Challenging the National Party Affiliation States 

a Claim Upon Which Relief Can Be Granted.

As the State admits, this “affiliation” requirement does not have the 

benefit of prior cases that rule directly on point: “Florida’s alternative 

affiliation requirement for minor party access also survives scrutiny, 

albeit without the benefit of rather settled law.” (DE 8, p. 2) (internal 

quotation omitted). But that is neither here nor there, because as 

discussed in the previous section, the courts are to give plaintiffs the 

opportunity to present evidence relevant to the Anderson balancing test

whenever possible. Particularly apt here is the fact that the lack of 

relevant prior case law analyzing a national affiliation requirement in 

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lieu of a signature requirement actually plays in the Plaintiffs’ heavy 

favor that they be given that opportunity here.

As a necessary background summary, the State articulated the 

purpose of these ballot access regulations as necessary to establish a 

significant modicum of support in Florida. (DE 8, pp. 4-5.) But the 

national affiliation requirement has no logical correlation to a minor 

party’s level of Florida support; rather, it might only establish that 

there is significant support in states other than Florida. This is outlined 

in the Complaint at DE 1, ¶¶ 19-23.

There are seven minor political parties in Florida and there are six 

minor (non-Democrat/Republican) political parties recognized by the 

FEC as national committees. (DE 1, ¶¶ 20-21.) Four of the seven 

Florida minor political parties are associated with an FEC-recognized 

party: (1) Constitution Party of Florida, (2) Green Party of Florida, (3) 

Libertarian Party of Florida, and (4) Reform Party of Florida. Id.1 That 

means if the three unaffiliated minor political parties wanted to access 

1 The State’s motion states that five of Florida’s seven minor political 

parties are associated with an FEC-recognized national committee, but 

it is actually four. The two Plaintiffs in this case and the Ecology Party 

of Florida are not associated with an FEC-recognized national 

committee.

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the ballot using the affiliation requirement, they would be forced to 

associate with either the national Socialist Party or the national 

Natural Law Party, or alternatively, they would be forced to develop for 

themselves significant non-Florida support for the party. The Plaintiffs 

will be able to present evidence that both of these options constitute 

significant burdens on their First Amendment Rights, and in particular 

the right of political association.

Furthermore, the State misstates a reference out of context 

regarding the words “relatively easy” set forth in ¶ 33 of the Complaint. 

Reading the entire paragraph in context, the reference was clearly 

meant to show that it is only “relatively easy” for parties that are 

already associated with an FEC-recognized national committee. (DE 1, ¶ 

33.) In those instances, the Chairman of the minor political party writes 

a letter to the Secretary of State certifying the names of the 

Presidential and Vice-Presidential candidates and lists the names for 

those candidates’ slate of electors for the Electoral College. Fla. Stat. § 

103.021(4)(a). Writing a letter is an easy burden to achieve ballot 

access, especially for a minor political party that is not required to put 

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forth any evidence of Florida electoral support for their place on the 

ballot by virtue of their national associations.

The State misconstrued the clear intent of these allegations, namely 

that the unconstitutional burden placed on the Plaintiffs in this case is 

to force them to associate with non-residents of Florida to access the 

ballot when this type of association has no logical correlation to 

furthering the State’s interest in determining whether the party has a 

sufficient modicum of support in Florida. That burden is heavy because 

association with others is most critical in the political context. Eu v. 

San Francisco County Democratic Central Committee, 489 U.S. 214, 224

(1989). Treating minor political parties differently based on who they 

associate with is an equal protection violation. And because the 

regulation is not reasonably related to the purpose of ballot access 

restrictions in Florida, the standard the Anderson balancing test 

requires is the most rigorous strict scrutiny test, not the “less rigorous 

application” suggested by the State. (DE 8, p. 12.)

The State suggests the court take judicial notice of Florida’s 

statistics regarding party membership found at 

https://dos.myflorida.com/media/702728/1-by-party-by-county.pdf (last 

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accessed on April 8, 2020). The Independent Party has 106,580 

members, while the membership of all other minor parties in Florida is 

a combined total of 44,692. This significant discrepancy exemplifies the 

problem with the national affiliation ballot access regulation. The 

Independent Party of Florida has more members than all other minor 

parties combined and is not considered to have sufficient modicum of 

Florida support worthy of a place on the presidential ballot.

The Independent Party, true to its name, seeks to control which 

candidates appear on the ballot as their nominee, and associating with 

a national party may circumvent their ability to nominate who they 

choose if the state party disagrees with the national party consensus. A 

party proceeding as a single-state minor party 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. https://howiehawkins.us/howie-hawkins-wins-socialist-party-usanomination-green-candidate-seeks-to-build-left-unity-with-multiplenominations/ (last accessed on April 8, 2020). Howie Hawkins’ website 

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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 of the United States v. Wisconsin, 450 U.S. 107, 121-

22 (1981) (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).

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, the Plaintiffs anticipate putting forth 

evidence that single state parties have nominated significant 

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candidates for office, the most notable of which is Donald J. Trump, who 

ran as a nominee for the American Independent Party of California in 

the 2016 election, an election he won (although he did not take 

California).

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 fundamental First Amendment 

rights are being violated by the unequal treatment and overly 

burdensome requirements placed upon them to gain ballot access.

CONCLUSION

The Plaintiffs’ Complaint states claims that are legally meritorious 

and factually robust – claims which should not be precipitously 

dismissed at this early litigation stage. The one-percent signature 

requirement requires over 130,000 signatures, and no one outside of 

California has ever achieved ballot access with a signature requirement 

that high. Furthermore, the requirement that a minor political party 

associate with an FEC-recognized national committee to obtain ballot 

access is also unconstitutional because the regulation is not even 

rationally related to serving the state interest on ballot restrictions, and 

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is therefore subject to the highest degree of scrutiny – especially since it 

treats similarly-situated, minor political parties differently solely based 

on how they exercise their First Amendment rights of political speech 

and association. For all of these reasons the State’s presumptuous

motion to dismiss should be denied.

Nevertheless, in the event this Court deems it necessary to dismiss 

any part of the Complaint, the Plaintiffs hereby respectfully request 

leave to amend the Complaint in order to cure any perceived 

deficiencies.

Dated this 10th 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

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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

brad.mcvay@dos.myflorida.com

General Counsel Brad R. McVay

Attorneys for:

Laurel M. Lee, Florida Secretary of State

R.A. Gray Building, Suite 100

500 S. Bronough Street

Tallahassee, Florida 32399

Signed this 10th of April, 2020.

 /s/ Daniel J. Treuden

Daniel J. Treuden

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