UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

THE INDEPENDENT PARTY OF 

FLORIDA and THE PARTY FOR 

SOCIALISM AND LIBERATION,

Plaintiffs, CASE NO: 4:20-cv-00110-MW-CAS

v.

LAUREL M. LEE, Florida 

Secretary of State, in her official capacity,

Defendant.

_____________________________________/

SECRETARY’S MOTION TO DISMISS

Defendant, Florida Secretary of State Laurel M. Lee, pursuant to Rule 12(b), 

Federal Rules of Civil Procedure, moves to dismiss the Complaint (DE 1) with 

prejudice because it fails to state a claim and will nevertheless fail as a matter of 

law. Minor political parties can access Florida’s General Election Ballot and have 

their presidential candidate’s names printed thereon by either: 1) affiliation with a 

national party; or, 2) by petitions signed by one percent (1%) of the state’s electors

(132,781). See Fla. Stat. § 103.021(4)(a) (affiliation) and (b) (petition). Plaintiffs 

challenge each alternative method under the First and Fourteenth Amendments and 

the Equal Protection Clause. (DE 1, ¶¶ 28-31 (Count I) and ¶¶ 32-35 (Count II)). 

The Eleventh Circuit has affirmed this Court’s holding that Florida’s latter method 

is constitutional under the same attack. U.S. Taxpayers Party of Florida v. Smith, 

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871 F. Supp. 426 (N.D. Fla. 1993), aff’d 51 F.3d 241 (11th Cir. 1995). Florida’s 

previous and higher three percent (3%) petition threshold for minor party statewide 

candidates has even been upheld and affirmed by the Supreme Court. Beller v. 

Kirk, 328 F. Supp. 485 (S.D. Fla. 1970), aff’d mem., 403 U.S. 925 (1971). When 

that same, previous three percent (3%) threshold was reviewed again, this time by 

the Eleventh Circuit in Libertarian Party of Florida v. State of Fla., 710 F.2d 790 

(11th Cir. 1983), the Court affirmed its constitutionality “[a]pplying what appears 

to be rather settled law.” Id. at 792. Indeed, the Court found that [i]f that 

[previous] case,” referring to Beller, “does not control the outcome of this case, 

analysis of the other Supreme Court ballot access cases does.” Id. at 793. The 

same can be said of this case and the Eleventh Circuit’s affirmance of the current, 

one percent (1%) threshold for minor party presidential candidates in U.S. 

Taxpayers of Florida. Florida’s alternative affiliation requirement for minor party 

access also survives scrutiny, albeit without the benefit of “rather settled law.” 

Libertarian Party of Florida, 710 F.2d at 792. Regardless, neither method of 

ballot access is exclusive. Each is an alternative to the other and Plaintiffs’ 

candidates may additionally access the ballot on their own, by the petition method, 

§ 103.021(3), or as a write-in candidate, § 103.022, in the event the party itself 

fails to show the “significant modicum of support” Florida is permitted to require. 

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Cartwright v. Barnes, 304 F. 3d 1138, 1140 (11th Cir. 2002), quoting Jenness v. 

Fortson, 403 U.S. 431, 442 (1971). 

I. STANDARD

The standard for evaluating ballot access restrictions is a “flexible standard.” 

Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 

780 (1983). The Court must engage in a three step process. Anderson, 460 U.S. at 

789. First, the Court must “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.” Id. Second, “[i]t then must identify and evaluate the 

precise interests put forward by the State as justifications for the burden imposed 

by its rule.” Id. Third, “[i]n passing judgement,” 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.” Id. “Only after weighing all these factors is the Court in a 

position to decide whether the challenged provision is unconstitutional.” Id. 

Ultimately, however, the “rigorousness” of the inquiry “depends upon the 

extent to which a challenged regulation burdens First and Fourteenth Amendment 

rights.” Burdick, 504 U.S. at 435 quoting Anderson, 460 U.S. 780. When “only 

‘reasonable, nondiscriminatory restrictions’ [are imposed] upon the ... rights of 

voters, ‘the State’s important regulatory interests are generally sufficient to justify’

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the restrictions.” Id. quoting Anderson, 460 U.S. 780. Indeed, “lesser 

burdens...trigger less exacting review.” Timmons v. Twin Cities Area New Party, 

520 U.S. 351, 358 (1997). Resolution at the motion to dismiss stage can therefore 

be proper. E.g. Beller v. Kirk, 328 F. Supp. 485; Cartwright v. Barnes, 304 F. 3d 

1138 (11th Cir. 2002); Lawrence v. Blackwell, 430 F. 3d 368 (6th Cir. 2005); Stone 

v. Board of Election Comm’rs for the City of Chicago, 750 F. 3d 678 (7th Cir. 

2014); Acevedo v. Cook Cnty. Officers Electoral Board, 925 F. 3d 944 (7th Cir. 

2019); Faas v. Cascos, 225 F. Supp. 3d 604 (S.D. Tex. 2016) (dismissing with 

prejudice).

II. ARGUMENT

“There is surely an important state interest in requiring some preliminary 

showing of a significant modicum of support before printing the name of a political 

organization’s candidate on the ballot—the interest, if no other, in avoiding 

confusion, deception, and even frustration of the democratic process at the general 

election.” Jenness v. Fortson, 403 U.S. 431, 442 (1970); Storer v. Brown, 415 U.S. 

724, 745 (1974). Florida has chosen two alternative means to do so for minor 

political parties seeking to have their presidential candidates placed on the ballot. 

While the Anderson-Burdick balancing test is by no means a “litmus-paper” 

test, “there is nothing remarkable about granting a motion to dismiss in an electionlaw case if careful consideration of the complaint shows that the plaintiff has not 

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stated a claim.” Stone v. Bd. of Election Comm’s for City of Chicago, 750 F. 3d 

678, 686 (7th Cir. 2014) (rejecting argument that “judgments about what might or 

might not be burdensome are premature”); see also Cartwright v. Barnes, 304 F. 

3d 1138 (11th Cir. 2002) (affirming dismissal for failure to state a claim in 

challenge to Georgia’s 5% signature threshold for congressional candidates); 

Beller v. Kirk, 328 F. Supp. 485 (S.D. Fla. 1970), aff’d mem., 403 U.S. 925 (1971) 

(same as to Florida’s previous 3% signature threshold for minor parties’ state and 

local candidates). Plaintiffs’ Complaint fails to state a claim that would survive the 

balancing test and it should therefore be dismissed. Plaintiffs’ claims nevertheless 

fail as a matter of law based upon prior precedent. 

A. One Percent Threshold Survives Scrutiny

Plaintiffs allege that the one percent (1%) threshold unconstitutionally 

burdens their First and Fourteenth Amendment rights because it would “cost over 

$100,000” to gather sufficient petitions. DE 1 ¶¶ 28-31, ¶ 26. “Practically 

speaking, much of the action takes place at the first stage of Anderson’s balancing 

inquiry.” Stone v. Bd. of Election Comm’rs for City of Chicago, 750 F. 3d 678, 

681 (7th Cir. 2014). Because, if the burden is only “reasonable [and]

nondiscriminatory,” a state’s “important regulatory interests are generally 

sufficient.” Burdick v. Takushi, 504 U.S. 428, 434 (1992). “The question of a 

burden’s severity,” has been recognized in other Circuits as “principally one of 

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law, which may be resolved by reference to case law assessing similar challenges.” 

Johnston v. Lamone, 2020 WL 1027805, ---Fed. Appx.--- (4th Cir. 2020) (internal 

quotations omitted). While not expressly stated, our Circuit has acted accordingly. 

See Cartwright v. Barnes, 304 F. 3d 1138, 1140-41 (11th Cir. 2002) (affirming 

dismissal with prejudice based on Jenness’s conclusion that a 5% signature 

requirement “impose[d] no suffocating restrictions whatever”); Swanson v. Worley, 

490 F. 3d 894, 903 (11th Cir. 2007) (“Based on our precedent, we conclude that 

Alabama’s signature requirement by itself ... is a reasonable, nondiscriminatory 

restriction”); Stein v. Ala. Sec’y of State, 774 F. 3d 689, 694-95 (11th Cir. 2014) 

(finding “Timmons settles that the burden they [minor parties] shouldered was not 

severe”).

Courts have found much more burdensome thresholds than Florida’s one 

percent (1%) to be reasonable and nondiscriminatory and upheld them against First 

Amendment and Equal Protection clause challenges. Indeed, the Eleventh Circuit 

reviewed those cases in Libertarian Party of Florida when it found Florida’s 

previous three percent (3%) threshold for minor party statewide and local 

candidates to be a minimal burden and concluded it was constitutional. Id. at 793-

95. This Court did the same a decade later in U.S. Taxpayers Party of Florida, 

when it found our current one percent (1%) threshold and July 15 deadline for 

minor party presidential candidates “does not place a significant state-imposed 

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restriction on a nationwide electoral process” and are justified by Florida’s 

interests. Id. at 432-47. The Eleventh later affirmed. Id., aff’d 51 F.3d 241 (11th 

Cir. 1995).

Nothing has changed, at least not for the worse. Nor do Plaintiffs allege as 

much. Florida still has the same alleviating factors on a minor party’s ability to 

gather signatures that were recognized in both cases. Registered voters can sign 

petitions for any or all candidates vying for their attention, regardless of party 

affiliation or participation in another party’s primary. See Fla. Stat. §

103.021(4)(b). Signatures can be collected from anywhere in the state, including 

from only one or a few heavily populated areas. Id. There is no limit on the

number of signatures that can be submitted, allowing minor parties to ensure a 

sufficient valid number by the deadline. See Fla. Stat. § 99.097. Minor parties 

may also waive the verification fee, unlike at the time of Libertarian Party of 

Florida. Fla. Stat. § 99.097(4); Laws of Fla. Ch. 99-318, s. 7 (removing minor 

parties from exception to fee waiver). Also, signatures for minor parties do not 

really expire; they are good for the July 15 deadline that next occurs. See Rule 1S2.045(6)(a) (incorporating Supervisor’s Handbook on Candidate Petitions at 5-6)1

. 

 

1 The Supervisor’s Handbook is available at: 

https://soe.dos.state.fl.us/pdf/2020%20SOE%20Handbook%20on%20Candidate%

20Petitions.pdf. The same information is contained in the Candidate’s Petition 

Handbook at 4-5, available at: https://dos.myflorida.com/media/702479/2020-

candidate-petition-handbook.pdf.

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In other words, minor parties could begin collecting signatures for the 2020 

General Election Ballot beginning on July 16, 2016 – which was almost four years 

ago. 

Plaintiffs do not allege that they have made any effort to collect signatures. 

See DE 1. They do not allege any burden caused by the July 15 deadline; only of 

the “cost [of] over $100,000 to hire and train sufficient laborers” to meet the one 

percent (1%) threshold. DE 1 ¶ 26. These allegations are insufficient to state a 

claim. The one percent (1%) threshold for minor parties not affiliated with a 

national party (or otherwise evidencing national support) has been in existence 

since 1970. Laws of Fla. Ch. 70-269, s. 8 (changing from “seventy-five 

hundredths percent” from at least 34 counties to one percent from anywhere, 

among other changes). 

In Stein v. Ala. Sec’y of State, the Eleventh Circuit evaluated a minor party’s 

claim that it would cost between $100,000 to $200,000 to pay signature gatherers 

to meet Alabama’s petition threshold for its presidential candidates. 774 F. 3d 689, 

697 (11th Cir. 2014).2 The minor party argued that the cost, among other reasons, 

made collection efforts futile and the burden severe. Id. at 697-99. The Eleventh 

Circuit rejected the argument. “If the Party Plaintiffs had started gathering 

 

2 The candidate in Stein was on Florida’s General Election Ballot in the relevant 

year. See Candidate Listing for 2012 available at: 

https://dos.elections.myflorida.com/candidates/CanList.asp. This is a 

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signatures on September 1, they could have met the signature deadline with twenty 

volunteers gathering an average of twelve signatures a day.” Id. at 698. Plaintiffs 

here have had since July 16, 2016 (1,460 days) to collect the required 132,781 

signatures. There is no requirement that they use paid signature gatherers. Indeed, 

they can use their own members, or other volunteers, to gather signatures. As of 

book closing for the March 17, 2020 Presidential Preference Primary, there were 

106,580 members of Plaintiff Independent Party of Florida.3 The Independent 

Party of Florida would therefore only need an extra 26,201 signatures, which 

would require less than one-quarter of the party’s members to collect just one 

signature from a non-member. Of course, with just about 90 volunteers, it would 

only take 1 signature a day. 

But even those minor parties seeking access in other cases at least tried to 

collect signatures. In U.S. Taxpayers of Florida, the minor parties seeking access 

for their presidential candidates “had collected nearly two-thirds of the required 

signatures” in just the “approximately two months” they had been soliciting. Id. at 

433. This Court therefore found that “a reasonably diligent minor party – even one 

who waited until March in an election year to form a political party – could have 

 

3 Book closing statistics are available at: 

https://dos.myflorida.com/media/702728/1-by-party-by-county.pdf. They may be 

judicially noticed at any stage of the proceeding, including at the motion to dismiss 

stage. See Rule 201, Fed. R. Evid.

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gathered the required number of signatures by July 15.” Id. at 433. And that was 

for a political party just formed in March of the presidential year. Id. Here, 

Plaintiffs have existed much longer.4 

Any burden on Plaintiffs is minimal and not at all alleged to be 

discriminatory.5 Therefore, less rigorous scrutiny is applied and Florida’s 

recognized interests, will generally carry the day. E.g., Burdick, 504 U.S. at 435. 

Florida’s many interests in requiring “some preliminary showing of a significant 

modicum of support” before printing Plaintiffs’ party names and their respective 

candidates on the General Election Ballot is “well established under decided 

cases.” E.g. Libertarian Party of Florida v. State of Fla., 710 F. 2d 790, 793 (11th 

Cir. 1983) (citing some of the case law). Florida does not need to make any 

particularized showing in support of these interests. Swanson v. Worley, 490 F. 3d 

894, 912 (11th Cir. 2007), citing Munro v. Socialist Workers Party, 479 U.S. 189, 

195-96 (1986); Stein v. Ala. Sec’y of State, 774 F. 3d 689, n.17 (11th Cir. 2014). 

 

4 Filings of the Plaintiffs may be judicially noticed at this stage. See Rule 201, 

Fed. R. Evid. The Party for Socialism and Liberation of Florida was registered in 

2008. Campaign Document Search available at: 

https://dos.elections.myflorida.com/campaign-docs/?account=46324. The 

Independent Party of Florida was registered in 1993. Campaign Document Search 

available at: https://dos.elections.myflorida.com/campaign-docs/?account=46324. 

That Party’s registration was revoked in 2016 for failure to submit a public audit of 

its finances, but was re-registered in 2018. Id.; id. at: 

https://dos.elections.myflorida.com/campaign-docs/?account=69767. 

5 Plaintiffs only allege the alternative affiliation method violates the equal 

protection clause. DE 1 ¶¶ 32-35. 

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Plaintiffs have not even alleged Florida lacks these recognized interests, or 

provided a reason they would not apply or provide insufficient weight here. 

Nevertheless, the “test is not whether the regulations are necessary,” or 

“narrowly tailored,” “but whether they rationally serve important state interests.” 

See e.g. Swanson, 490 F. 3d at 912. Florida’s one percent (1%) threshold does so. 

The threshold “rationally serve[s],” and even furthers in a way at least 

commensurate to the burden imposed upon Plaintiffs’ rights, Florida’s interests in 

preventing: voter confusion or deception; frivolous candidacies; clogging of the 

ballot; and, frustration of the democratic process. See e.g. Swanson, 490 F. 3d at 

910-12 (upholding Alabama’s threshold for statewide candidates of three percent 

(3%) of the voters in last gubernatorial election); Nader v. Cronin, 620 F. 3d 

12141218 (9th Cir. 2010) (upholding Hawaii’s threshold for independent 

presidential candidates of one percent (1%) of voters in the previous presidential 

election). Plaintiffs do not allege otherwise. Rather, they allege “less burdensome 

alternatives exist;” specifically, the affiliation method. DE 1 ¶¶ 26-27. Not only 

do Plaintiffs implicate the wrong level of scrutiny, they point to the alternative

method of ballot access that is also available to them and, apparently, is admittedly 

“relatively easy.” DE 1 ¶ 33. 

Plaintiffs therefore fail to state a claim and their action should be dismissed. 

Nevertheless, any well-stated claim that could be made would fail as a matter of 

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law under U.S. Taxpayers of Florida or other precedent. This claim should 

therefore be dismissed with prejudice. 

B. Affiliation with National Party Survives Scrutiny

In this circuit, constitutional challenges to state ballot access laws – whether 

based on the equal protection clause or the First Amendment – are to be considered 

under a less rigorous application of the Anderson test. U.S. Taxpayers of Florida, 

871 F. Supp. at 430-31; see also accord e.g. Barr v. Gavin, 626 F. 3d 99, 108-11 

(1st Cir. 2010) (evaluating and rejecting claim of arbitrary discrimination between 

recognized parties and non-parties for ballot access under the Anderson-Burdick 

balancing test). Much of the same analysis therefore applies to Plaintiffs’ equal 

protection challenge to their alternative method of ballot access – affiliation with a 

national party. DE 1 ¶¶ 32-35; Fla. Stat. § 103.021(4)(a). Plaintiffs allege that 

permitting those minor parties affiliated with a national party to simply certify their 

presidential candidates for placement on the ballot, instead of gathering petitions, 

violates equal protection. Specifically, Plaintiffs allege that national party 

affiliation is “not rationally related to the level of support that a party has in 

Florida” or “any interest in regulating access to the Presidential ballot.” DE 1 ¶¶ 

34-35. Plaintiffs fail to state a claim either as alleged or as a matter of law.

Plaintiffs fail to allege they cannot affiliate with any one of the national 

parties. Nor do they allege they have tried, or that the national parties do not 

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sufficiently advance their respective party platforms. Plaintiffs do not allege that 

they themselves have taken the steps to become national parties in their own right. 

They allege no burden at all. Rather, Plaintiffs confuse the history of minor party 

presidential access and then conclude the requirement is irrational. DE 1 ¶¶ 9-16, 

22-24. 

Affiliation with a national party has been a ballot access alternative for 

minor party presidential candidates since 1999. Laws of Fla. Ch. 99-318, s. 5. 

Prior to that however, national party affiliation was still a requirement for ballot 

access in some way, for quite some time. See Laws of Fla. Ch. 70-269, s. 7. The 

2011 amendment Plaintiffs refer to restricted minor party status by requiring the 

organization have a specific structure and members to be a “minor political party” 

in the first place. DE 1 ¶¶ 8-9; Laws of Fla. Ch. 2011-40, s. 2, 46. Prior to the 

amendment, at least one individual had formed multiple minor political parties. 

The amendment also cured the vagueness concerns referred to by Plaintiffs, by 

better defining what “national party” means. DE 1 ¶ 13; Laws of Fla. Ch. 2011-40, 

s. 45. National party affiliation as part of ballot access existed long before these 

changes. 

As Plaintiffs concede, the affiliation method for ballot access is “relatively 

easy.” DE 1 ¶ 33. Indeed, access by affiliation with a national party has not been 

historically difficult. Plaintiffs’ allegations alone concede that as few as six and as 

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many as eleven minor parties attained ballot placement using this method in 2000, 

2004, and 2008. DE 1 ¶¶ 10-12. Even one of the Plaintiffs has attained ballot 

placement this way. In 2012, Plaintiff the Party for Socialism and Liberation’s 

presidential and vice-presidential candidates were on the ballot because they 

certified affiliation with a national party.

6

 Currently, there are seven (7) minor 

parties in Florida. DE 1 ¶ 21.7 Five (5) of them, are affiliated with national 

parties. See DE 1 ¶¶ 22-23. The burden to affiliate with a national party to access 

the ballot is therefore “reasonable” and Plaintiffs have not even alleged otherwise. 

The affiliation method is also nondiscriminatory, despite Plaintiff’s contrary 

conclusion. DE 1 ¶¶ 34-35. Plaintiffs do not allege that minor parties are treated 

poorly compared to major parties. Plaintiffs instead allege the discrimination 

occurs within minor party status itself –based on a minor party’s national party 

affiliation. But, all minor parties must show a “significant modicum of support” 

before Florida must place them on its ballot. Cartwright v. Barnes, 304 F. 3d 

1138, 1140 (11th Cir. 2002), quoting Jenness v. Fortson, 403 U.S. 431, 442 

(1971); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363

(1997) (“Ballots serve primarily to elect candidates, not as forums for political 

 

6 The names of candidates listed on any ballot may be judicially noticed at this 

stage. See Rule 201, Fed. R. Evid. Candidate Listing for 2012 available at: 

https://dos.elections.myflorida.com/candidates/CanList.asp.

7 Political parties in Florida may be judicially noticed and can be found at: 

https://dos.myflorida.com/elections/candidates-committees/political-parties/. 

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expression” and therefore party is not entitled to have its name printed with its 

candidate, who was on the ballot). Minor parties have two methods of doing so in 

order to access Florida’s ballot. They may show support within the state by 

gathering petitions, or they may show support nationally, acknowledging that

presidential elections are decided by all states, and not just Florida. These 

alternatives rationally relate to, and balance, both Florida’s interests in all elections 

(explained above) and the national interest in presidential elections. See Anderson 

v. Celebrezze, 460 U.S. 780, 794-95 (1983) (recognizing an additional, national 

interest in presidential elections).

Minor party access to the presidential ballot under the affiliation method is 

rationally related to the same compelling state interests Florida has for the 

alternative petition method. Plaintiffs allegations again fail to state a claim and 

otherwise fail as a matter of law. 

III. CONCLUSION 

Minor party access to the presidential ballot – under either alternative – is 

rationally related to and properly balanced with the same compelling state interests 

that have been “well-established” and Plaintiffs have not, and cannot, allege 

otherwise. Plaintiffs’ Complaint should therefore be dismissed with prejudice. 

WHEREFORE, the Secretary respectfully requests that the Court grant this 

motion and dismiss the Complaint (DE 1) with prejudice. 

Case 4:20-cv-00110-MW-MAF Document 8 Filed 03/27/20 Page 15 of 16
Respectfully submitted,

/s/ Ashley E. Davis

BRADLEY R. MCVAY (FBN 79034)

General Counsel

brad.mcvay@dos.myflorida.com

ASHLEY E. DAVIS (FBN 48032)

Deputy General Counsel

ashley.davis@dos.myflorida.com

candice.edwards@dos.myflorida.com

FLORIDA DEPARTMENT OF STATE

R.A. Gray Building, Suite 100

500 South Bronough Street

Tallahassee, Florida 32399-0250

Phone: (850) 245-6536

Fax: (850) 245-6127

Counsel for Secretary of State

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