[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-11816

Non-Argument Calendar

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D.C. Docket No. 1:12-cv-01822-RWS

GREEN PARTY OF GEORGIA,

CONSTITUTION PARTY OF GEORGIA,

Plaintiffs-Appellants,

versus

STATE OF GEORGIA,

SECRETARY, STATE OF GEORGIA,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

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(January 6, 2014)

Before TJOFLAT, JORDAN, and COX, Circuit Judges.

PER CURIAM:

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The Green Party of Georgia and the Constitution Party of Georgia (the 

“Plaintiffs”) challenge in this appeal the district court’s order dismissing their 

complaint for failure to state a claim upon which relief may be granted.

1

 Because 

the district court erred by concluding that this case was indistinguishable from 

controlling decisions we reverse the district court’s order and remand for further 

proceedings. 

I. Procedural History

The Plaintiffs filed this suit claiming that Georgia’s petition-signature 

requirement for ballot access violates the First and Fourteenth Amendments of the 

United States Constitution. To be listed on the ballot in Georgia, any presidential 

candidates not affiliated with a political party recognized by Georgia must present 

a petition with signatures from 1% of the total number of registered voters in 

Georgia.

2

 The Georgia Secretary of State and the State of Georgia moved to 

 

1 The State of Georgia contended in its motion to dismiss that it was immune from suit 

under the Eleventh Amendment. (R. 4-1 at 14-15.) The Plaintiffs did not contest the State of 

Georgia’s immunity in response. (R. 5.) The district court dismissed the action for failure to 

state a claim without considering the State of Georgia’s immunity. (R. 10.) The Plaintiffs do not 

dispute the State of Georgia’s immunity on appeal. (Appellant’s Br. at 3.) Because the State of 

Georgia is immune from this suit under the Eleventh Amendment, we instruct the district court to 

dismiss the State of Georgia from this action for want of jurisdiction on remand. See Pennhurst 

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908 (1984).

2 Georgia classifies political organizations as either a “political body” or a “political 

party.” To be a political party, the organization must have received at least 20% of the total vote 

in an election for governor or president. OCGA §§ 21-2-2(23)–(25). While political parties 

receive automatic ballot access, a political body must file a nomination petition signed by either 

1% of the total number of registered voters for a statewide office (including the presidential 

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dismiss this case contending that past decisions of the United States Supreme 

Court and the United States Court of Appeals for the Eleventh Circuit have

conclusively resolved the issue. The Defendants referenced a number of cases 

where a 5% petition-signature requirement for non-statewide ballot access was 

upheld and reasoned that if a 5% requirement was constitutional, the lower 1% 

requirement must also be constitutional. See, e.g., Jeness v. Fortson, 403 U.S. 431, 

91 S. Ct. 1970 (1971); Coffield v. Kemp, 599 F.3d 1276 (11th Cir. 2010); 

Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002). Though none of the cases 

Georgia referenced considered ballot access for a presidential election, the district 

court agreed with Georgia Defendants reasoning and dismissed the action for 

failure to state a claim. The Plaintiffs appeal.

II. Discussion

We review de novo a motion to dismiss for failure to state a claim. Timpson 

v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008).

The Plaintiffs contend that the district court erred by concluding that this 

case is indistinguishable from previous decisions upholding Georgia’s 5% petitionsignature requirement for non-statewide elections. As the Plaintiffs note, we 

previously addressed whether our past decisions upholding a 5% petition-signature 

 

election) or 5% of the total number of registered and eligible voters for any other office. OCGA 

§ 21-2-170.

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requirement preclude a challenge to a lower petition-signature requirement for a 

presidential candidate and we concluded that our past decisions are distinguishable. 

See Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985). 

To determine whether a ballot access law violates the First and Fourteenth 

Amendments, we follow the approach laid out in Anderson v. Celebrezze, 460 U.S. 

780, 103 S. Ct. 1564 (1983). Bergland, 767 F.2d at 1553. In Anderson, the Court

rejected “the use of any ‘litmus-paper test’ for separating valid from invalid 

restrictions.” Id. (citing Anderson, 460 U.S. at 789, 103 S. Ct. at 1570). Rather, a

court must first “evaluate the character and magnitude of the asserted injury to 

rights protected by the First and Fourteenth Amendments. Second, it must identify 

the interests advanced by the State as justifications for the burdens imposed by the 

rules. Third, it must evaluate the legitimacy and strength of each asserted state 

interest and determine the extent to which those interests necessitate the burdening 

of the plaintiffs' rights.” Bergland, 767 F.2d at 1553-54.

In Bergland, the district court dismissed an action challenging Georgia’s 

then 2.5% petition signature requirement for a presidential candidate. The district 

court based its dismissal on our past decisions that upheld a 5% petition signature 

requirement for other offices. We rejected this “litmus-paper test” approach and 

held that our past decisions “do not foreclose the parties’ right to present the 

evidence necessary to undertake the balancing approach outlined in Anderson.” Id.

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at 1554. Furthermore, a state’s interest in regulating a presidential election is less 

important than its interest in regulating other elections because the outcome of a 

presidential election “will be largely determined by voters beyond the State’s 

boundaries” and “the pervasive national interest in the selection of candidates for

national office . . . is greater than any interest of an individual State.” Anderson v. 

Celebrezze, 460 U.S. 780, 795, 103 S. Ct. 1564, 1573 (1983). Consequently, a 

ballot access restriction for presidential elections “requires a different balance” 

than a restriction for state elections. Bergland, 767 F.2d at 1554; see also McCrary 

v. Poythress, 638 F.2d 1308, 1314 n.5 (5th Cir. 1981) (holding that the 

constitutionally of Georgia’s ballot access law may be different as applied to a 

presidential election).

The same analysis we applied in Bergland also applies to this case. The 

district court’s approach employs the type of “litmus-paper test” the Supreme 

Court rejected in Anderson. See Anderson, 460 U.S. at 789, 103 S. Ct. at 1570. 

And, the district court failed to apply the Anderson balancing approach.

III. Conclusion

Accordingly, we conclude that this case is distinguishable from our past 

decisions and that the district court erred by dismissing the action against the 

Defendants for failure to state a claim. We reverse the judgment of the district 

court and remand for further proceedings consistent with this opinion. On remand, 

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the district court should dismiss the action against the State of Georgia for want of 

jurisdiction because it is immune from suit under the Eleventh Amendment.

REVERSED AND REMANDED WITH INSTRUCTION.

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