PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________________

No. 95-8230 _____________________________________

D. C. Docket No. 1:94-CV-1298-ODE

WALKER L. CHANDLER; SHARON T. HARRIS; JAMES

D. WALKER,

Plaintiffs-Appellants,

versus

ZELL D. MILLER, Governor; MAX CLELAND,

Secretary of State of Georgia; JAMES G.

LEDBETTER, Commissioner Department of Human

Resources State of Georgia,

Defendants-Appellees.

______________________________________

Appeal from the United States District Court

for the Northern District of Georgia

_______________________________________

(January 22, 1996)

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

EDMONDSON, Circuit Judge:

This case requires us to determine the constitutionality of

a Georgia statute requiring drug testing of political candidates

and nominees for state offices. We hold that Georgia's rule
 1

O.C.G.A. § 21-2-140 provides:

At the time a candidate for state office qualifies for

nomination or election, each such candidate shall file

a certificate . . . stating that such candidate has

been tested for illegal drugs . . . and that the

results of such test are negative. . . . No candidate

shall be allowed to qualify for nomination or election

to a state office unless he or she presents such

certificate . . . .

2

violates no federal constitutional provision and affirm the

district court's judgment.

I.

In 1990, the Georgia legislature enacted O.C.G.A. § 21-2-140.1

The offices to which the statute applies include, among others,

those of the Governor, Lieutenant Governor, Secretary of State,

Attorney General, the heads of several agencies, all state judges

in courts of general jurisdiction, and all state legislators. Id.

§ 21-2-140(a)(4). Plaintiff-appellants are members of the

Libertarian Party seeking the offices of Lieutenant Governor,

Commissioner of Agriculture, and member of the House of

Representatives.

As the language quoted in the margin indicates, anyone who

declines to take the test, or who tests positive, is basically

barred from holding office. Additional aspects of the drug-testing

scheme were outlined by the district court: testing may, at the

option of the candidate, be performed either at an approved medical

testing laboratory or at the office of the candidate's physician.
 2

Appellants' brief refers to almost every right enumerated

in the Constitution. Many of these textual provisions are

touched on only in passing, with no citations of authority. The

district court focused exclusively on appellants' Fourth

Amendment claim, and Appellants asserted at argument here that

they chiefly advanced their First and Fourteenth Amendment

claims. We regard all federal constitutional arguments except

these (First, Fourth, and Fourteenth Amendments) as either

abandoned or without merit.

3

Laboratory procedures concerning privacy follow the Mandatory

Guidelines for Federal Workplace Drug Testing Programs, set out at

53 Fed. Reg. 11,979 (1988). The test is designed to reveal the

presence or absence of the indicia of five illegal drugs. No

information unrelated to drug use is contemplated by the statute;

the test simply indicates that the candidate tested positive or

negative.

The appellants' arguments comprise three identifiable claims.2

First, appellants argue the tests violate the Fourth Amendment

prohibition on unreasonable searches and seizures. Second,

appellants categorize the statute as affecting the Fourteenth

Amendment rights of candidates to run and of voters to choose them.

Third, they categorize their refusal to submit to the test as a

protected speech act that cannot, under the First Amendment, be the

basis for barring a candidate from the ballot.

II.

That the tests at issue are searches within the meaning of the

Fourth Amendment seems settled. See Skinner v. Railway Labor
4

Executives Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103

L.Ed.2d 639 (1989). Like the test at issue in National Treasury

Employees Union v. Von Raab , 489 U.S. 656, 109 S.Ct. 1384, 103

L.Ed.2d 685 (1989), this test "is not designed to serve the

ordinary needs of law enforcement." 489 U.S. at 666; 109 S.Ct. at

1391. That is, the test is not designed to prosecute crime: no

party before us contends otherwise. Special needs are involved. 

In this circumstance, the courts must "balance the individual's

privacy expectations against the Government's interests to

determine whether it is impractical to require a warrant or some

level of individualized suspicion in the particular context." 489

U.S. at 665-66, 109 S.Ct. at 1390-91. Another federal appeals

court considering suspicionless drug testing has noted that "Von

Raab's balancing test is inherently, and doubtless intentionally,

imprecise. The Court did not purport to list all of the factors

that should be weighed or to identify which factors should be

considered more weighty than others." Willner v. Thornburgh, 928

F.2d 1185, 1187 (D.C. Cir. 1991).

No federal court seems to have entertained a Fourth Amendment

challenge to a state law requiring testing of candidates for high

state office. Thus we observe at the outset the special concerns

affecting the Von Raab balancing test where the state's interest is

in setting qualifications for its own officers.

American history is especially important in a case like this

one; and the Supreme Court observed nearly a century ago:

It is obviously essential to the independence of the

States, and to their peace and tranquility, that their
5

power to prescribe the qualifications of their own

officers . . . should be exclusive and free from external

interference, except so far as plainly provided by the

Constitution of the United States.

Taylor v. Beckham, 178 U.S. 548, 570-71, 20 S.Ct. 890, 898, 44

L.Ed.2d 1187 (1900); (cited in Gregory v. Ashcroft, 501 U.S. 452,

460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991)). In the light

of this command, we regard the states as entitled to considerable

deference in the characterization of their own interests.

Under the Skinner-Von Raab framework, the state's interest is

calculated mainly by reference to two factors: the level of

documented evidence of a past problem and the fundamental

inconsistency of drug use with the demands of the position. In

Skinner, the Court approved suspicionless drug testing where there

was a documented showing of widespread substance abuse among

employees in the position to be subjected to testing. 489 U.S. at

607, 109 S.Ct. at 1407-08.

In Von Raab, the Customs office did not demonstrate a past of

drug abuse among the employees to be tested. The Court approved

the search anyway, however, when confronted with evidence that

physical and ethical demands on customs agents were so great as to

render drug use totally incompatible with the nature of the

position. 489 U.S. at 669-70, 109 S.Ct. at 1393. Thus, because

Georgia has not argued that her elected officials have in the past

abused drugs, the issue on Georgia's interest is whether unlawful

drug use is similarly fundamentally incompatible with high state

office.

We think that to ask this question is also to answer it. The
 3

The Von Raab situation might be distinguished on the basis

that Congress can define the Customs Department's mission and

demand sympathy to that mission as a condition of employment,

whereas the executive officers here are members of a branch

coequal to the Georgia legislature. We regard this distinction

as involving a pure question of state law.

Appellants asserted in their complaint that the testing

violates the Georgia Constitution, but the district court decided

no issues of state law. 28 U.S.C. § 1367 provides that the

district courts "may decline to exercise supplemental

jurisdiction over a claim" which they otherwise have power to

hear if "the claim raises a novel or complex issue of state law .

. . ." Id. The decision not to exercise supplemental

jurisdiction is reviewed for abuse of discretion. Faucher v.

Rodziewicz, 891 F.2d 864, 872 (11th Cir. 1990). In view of the

complex state constitutional issues presented here and the

interests of comity in this sensitive area of federal-state

relations, we cannot conclude the district court abused its

discretion. See, e.g., Grant v. Seminole County, Fla., 817 F.2d

731, 732 (11th Cir. 1987) (finding no abuse of discretion where

district court failed to explain dismissal of state claim,

6

people of Georgia place in the trust of their elected officials

that which people value most highly: their liberty, their safety,

their economic well-being, ultimate responsibility for law

enforcement, and so on. The Supreme Court has recognized that

"drug abuse is one of the most serious problems confronting our

society today," Von Raab, 489 U.S. at 674, 109 S.Ct. at 1395, and

therefore has approved the drug testing of Customs officers in part

because "the national interest [in eradicating drug use] could be

irreparably damaged if those charged with safeguarding it were,

because of their own drug use, unsympathetic to their mission of

interdicting narcotics." 489 U.S. at 670, 109 S.Ct. at 1393. That

said, it follows, even more forcefully, that those vested with the

highest executive authority to make public policy in general and

frequently to supervise Georgia's drug interdiction efforts in

particular must be persons appreciative of the perils of drug use.3
because "[e]xercising pendent jurisdiction over the claim would

have required the district court to decide a novel question of

state law . . ."). We also decline to decide the issues of state

law raised by appellants.

7

But drug use poses significant dangers beyond rendering

elected officials unsympathetic to drug interdiction efforts. The

nature of high public office in itself demands the highest levels

of honesty, clear-sightedness, and clear-thinking. For example,

the Lieutenant Governor is the President of the Senate and has

other executive duties posed by law; more important, though, the

Lieutenant Governor is to replace the Governor should the top

executive office become vacant. O.C.G.A. § 45-12-7. The Governor

must respond to state emergencies, id. § 45-12-30, and if necessary

call out the state militia. Id. §§ 45-12-27; 45-12-28. He can

direct state law enforcement agencies. See O.C.G.A. §§ 35-3-8.1;

35-2-33(b). The Governor has broad powers of appointment to

important offices, boards, commissions, and so forth. See

generally id. § 45-12-50; see also Ga. Const. Art. I., § 2, par. 1

(Governor appoints members of State Board of Pardons and Paroles).

It goes without saying that clear judgment is imperative to the

position. Likewise, members of the House of Representatives enact

laws of general applicability for the state, while the Commissioner

of Agriculture leads an agency with broad regulatory powers. See

generally id. § 2-2-7 (Commissioner of Agriculture); Ga. Const.

art. III (House of Representatives). The positions are

particularly susceptible to the "risks of bribery and blackmail

against which the Government is entitled to guard." Von Raab, 489
 4

Appellants contend that because the test is administered

after substantial notice, drug users may simply discontinue their

indulgence for a brief period before testing and, thus, defeat

the purpose of the test. They say the testing is just

ineffective. But, in balancing the Fourth Amendment interests,

there is no requirement that a search be the single most

effective one a legislature could design. Also, as the Supreme

Court noted in Von Raab, "addicts may be unable to abstain for

even a limited period of time, or may be unaware of the 'fadeaway effect' of certain drugs." 489 U.S. at 676, 109 S.Ct. at

1396 (citations omitted). Persons who would be caught by

Georgia's limited testing would seem to be people who are out of

control about drugs; these worst cases might be the most

dangerous in public office. The testing is not so ineffective as

to be unreasonable or irrational in itself.

8

U.S. at 674, 109 S.Ct. at 1395. Simply put, the state's interest

in filling these positions with drug-free people is great.4

Also, we note that our conclusion is strengthened by our

deferential reading of Georgia's appraisal of its own interests.

Evaluating the governmental interest is necessarily a policy-based

inquiry; and while the importance of electing officials whose

probity and judgment are unclouded by the use of unlawful drugs may

be self-evident to us, we--whatever our own views might be--would

be slow to disregard Georgia's appraisal of that need in the light

of cases like Taylor, supra, reminding us that a state's sovereign

interests are at stake.

Against Georgia's interests must be balanced plaintiffappellants' privacy interests. The Supreme Court in Skinner, 489

U.S. at 626, 109 S.Ct. at 1418, noted that drug tests "require

employees to perform an excretory function traditionally shielded

by great privacy," and Justice Scalia wrote in Von Raab that the

drug tests there were "particularly destructive of privacy and
9

offensive to personal dignity." 489 U.S. at 680, 109 S.Ct. at 1398

(Scalia, J., dissenting).

But, we think that the intrusion here is even less than that

approved in Von Raab. Here, the test can be taken at the office of

the candidate's physician, whereas in Von Raab, the test had to be

taken in the company of an (auditory) observer employed by an

"independent contractor." Other aspects bearing on the

individual's interests are similar to those approved in Von Raab.

The district court noted that federally-approved privacy

guidelines, such as those at 53 Fed. Reg. 11,979 et seq. (1988),

serve as the benchmark for laboratory procedures. The test reveals

only the presence or absence of the indicia of the use of illegal

drugs. The results are not made available to law enforcement

officers in the event a candidate chooses not to file them (if

taken through one's own physician, no state agent need know that

the test was administered). And, much like the Customs agents

whose privacy expectations are diminished because physical

conditioning and ethical behavior are central to job performance,

see Von Raab, 489 U.S. at 679, 109 S.Ct. at 1398, candidates for

high office must expect the voters to demand some disclosures about

their physical, emotional, and mental fitness for the position.

Because the governmental interests of the state of Georgia

outweigh the intrusions on privacy effected by the challenged

testing, we hold that O.C.G.A. § 21-2-140, as applied to the

appellants, does not violate the Fourth Amendment.
10

III.

Appellants also contend that by barring from the ballot a

class of persons (those who refuse to take drug tests), the Georgia

legislature has violated the rights of the candidates to run for

office and the people to vote for whom they please. In their

briefs and at argument, appellants indicated they would

characterize the Fourteenth Amendment as creating a nearly absolute

barrier to excluding a defined group of persons from the ballot.

The Supreme Court, however, has rejected that argument, most

recently in Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115

L.Ed.2d 410 (1991). There, the Court recognized Missouri's

prerogative to exclude from the ballot most candidates for the

state judiciary over a mandatory retirement age of seventy years.

The Court acknowledged that when states bar a class of candidates

from the ballot, "the Equal Protection Clause provides a check on

such state authority," but cited Article IV, section 4 and the

Tenth Amendment for the proposition that

our scrutiny will not be so demanding where we deal with

matters resting firmly within a State's constitutional

prerogatives. This rule is no more than a recognition of

a State's constitutional responsibility for the

establishment and operation of its own government, as

well as the qualifications of an appropriately designated

class of public office holders.

501 U.S. at 462, 111 S.Ct. at 2402 (citations and internal

quotation marks omitted).

Gregory guides us in our disposition of the appellants' equal

protection claim. There, the Court held that rational basis
11

scrutiny applies to state electoral qualifications not involving a

suspect classification. 501 U.S. at 470, 111 S.Ct. at 2406. Under

rational basis scrutiny, courts "will not overturn such a statute

unless the varying treatment of different groups or persons is so

unrelated to the achievement of any combination of legitimate

purposes that we can only conclude that the legislature's actions

were irrational." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939,

943, 59 L.Ed.2d 171 (1979). 

Considering the importance of the mental, emotional, and

physical health of high public officials, we cannot conclude that

the Georgia legislature acted irrationally. Also, the Georgia

statute creates less of a barrier than the one upheld in Gregory:

whereas Missouri judicial candidates past the mandatory retirement

age were permanently barred from the ballot, Georgia candidates are

only barred so long as they cannot (or will not) demonstrate that

they are drug-free. Thus we hold that O.C.G.A. § 21-2-140 does not

improperly infringe on the rights of people to run and of voters to

choose the candidate of their choice.

IV.

Appellants' First Amendment claim is based on their assertion

that the "refusal tamely to submit to the government's drug testing

edict is itself a protected free speech act similar in nature to

refusing to salute a flag or the king's hat set upon a post in the

village square." We read this argument as an appeal to the

rationale of cases like Communist Party of Indiana v. Whitcomb, 414
12

U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974), which invalidated a

state statute conditioning ballot access on the filing of an

affidavit disavowing the overthrow of state and national

governments, and Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17

L.Ed.2d 235 (1966), which held that exclusion of a member of the

Georgia House of Representatives based on his stated opposition to

the Vietnam war violated the First Amendment. We think these cases

are distinguishable in that they involve pure speech acts, divorced

from unlawful conduct.

In that respect, this case is more like United States v.

O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), where

the court upheld against a First Amendment challenge the

prosecution of a young man who burned his draft card, ostensibly in

an effort to persuade others to oppose the Vietnam War. There, the

Court stated, "[w]e cannot accept the view that an apparently

limitless variety of conduct can be labeled speech whenever the

person engaging in the conduct intends thereby to express an idea."

391 U.S. at 376, 88 S.Ct. at 1678. The Court went on, however, to

entertain the "assumption that the alleged communicative element in

O'Brien's conduct is sufficient to bring into play the First

Amendment." Id. Against this backdrop, the Court held that

government regulation of conduct containing "speech and nonspeech"

elements is "sufficiently justified if it is within the

constitutional power of the Government; if it furthers an important

or substantial government interest; if the governmental interest is

unrelated to the suppression of free expression; and if the
13

incidental restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that interest."

391 U.S. at 377, 88 S.Ct. at 1679.

Georgia's drug-testing statute passes muster under the

framework of O'Brien. First, it is generally within the power of

the state of Georgia to prescribe qualifications for its elected

officials. See Gregory, 501 U.S. at 463, 111 S.Ct. at 2402.

Second, the statute furthers a substantial governmental

interest, as described in the Fourth Amendment analysis above.

Third, the government's purpose is not suppression of free

expression. The purpose, as we concluded above, is ensuring that

high public officials to whom immense responsibilities are

entrusted possess the judgment, probity, and alertness required of

them. Anyway, it is doubtful whether the statute has even the

effect, let alone purpose, of restricting speech rights. We think

an audience would much more clearly perceive the intended message

of one who burns a draft card than the message of one who declines

to take a drug test. See generally Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 3069, 82 L.Ed.2d

221 (1984) (noting that First Amendment protection of conduct

depends on whether conduct "would reasonably be understood by the

viewer to be communicative").

Fourth, the regulation is no more restrictive of expression

than is necessary. If Georgia's goal is to preclude the nomination

or election of people addicted to drugs then it must require,

rather than simply advise, that prospective candidates submit to
 5

By the way, Georgia publishes almost no official

legislative history. And, we do not accept an academic law

journal's summary of a post-enactment telephone interview (not

conducted under oath) with a single legislator (even one of the

sponsors of a bill) as competent legislative history. See, e.g.,

Blanchette v. Connecticut General Ins. Corps., 419 U.S. 102, 132,

95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974) (rejecting use of

"subsequent legislative history" because "[P]ost-passage remarks

of legislators, however explicit, cannot serve to change the

legislative intent . . . . Such statements represent only the

personal views of these legislators."). Nor do we -- on the

basis of such "history" -- accept that Georgia's drug testing law

is merely or chiefly symbolic, although that which is symbolic

may still have great significance. In their brief, plaintiffappellants cited to no such law review summaries; and we think

they -- given the lack of true legislative history available --

were right not to do so.

14

testing. Appellants have not suggested a less restrictive way for

Georgia to accomplish its stated objective of keeping drug users

out of office. Therefore, we conclude that whatever impact the

Georgia statute has on speech does not violate the First Amendment.

V.

No party contends in this appeal that the drug testing in this

case is for normal law enforcement. The controversy is about

Georgia's rights and the special need Georgia believes it has to

take a step to deter illicit drug users from filling important

state offices. Especially in the light of federalism and the Tenth

Amendment, we are cautious in interfering with the states on

matters central to their governance.5 O.C.G.A. § 21-2-140 does not

violate the First, Fourth, or Fourteenth Amendment rights of
 6

We are aware that qualifying to run for the pertinent

public offices is only a few months away. We also recognize that

plaintiff-appellants will likely seek review of our decision. 

For that reason, we have tried to be expeditious in announcing

the decision. Because speed seems important, we have perhaps not

said all that we could -- especially about history; but we think

we have said enough to indicate our general point of view.

15

candidates for high office in Georgia; we affirm the judgment of

the district court.6

AFFIRMED.