FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 8, 2011

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-12176

________________________

D. C. Docket No. 4:10-cv-0007-HLM

LAMAR GRIZZLE,

KELVIN SIMMONS,

Plaintiffs-Appellees,

versus

HONORABLE BRIAN KEMP,

in his official capacity as Secretary of State of Georgia

and Chairperson of the Georgia State Election Board,

Defendant-Appellant,

THE STATE ELECTION BOARD OF THE STATE OF GEORGIA, et al.

Defendants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(March 8, 2011)
Before TJOFLAT, ANDERSON and ALARCÓN, Circuit Judges.

*

ALARCÓN, Circuit Judge:

In this appeal, we must determine whether the District Court erred in

applying the strict scrutiny standard in reviewing the Plaintiffs’ claims under the

First and Fourteenth Amendments in issuing a preliminarily injunction against the

Honorable Brian Kemp, the Secretary of State of Georgia (the “Secretary of

State”), in his official capacity, and the County Executive Committee of the

Bartow County Republican Party (the “Republican Party”), enjoining the

enforcement or application of the portion of Georgia Code Ann. § 20-2-51(c)(2)

(2009) that precludes relatives of certain employees of a school system from

serving as members of that district’s board of education. We must also decide

whether the District Court erred in holding that a case or controversy exists with

regard to the Secretary of State.

We reverse the order granting a preliminary injunction because we conclude

that the District Court erred in reviewing the Plaintiffs’ First and Fourteenth

Amendment claims under the strict scrutiny standard. As the Secretary of State is

the chairperson of the State Election Board and the State Election Board is charged

with enforcing Georgia’s election code under state law, we conclude that the

Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting *

by designation.

2
Secretary of State is a proper party in this action for injunctive and declaratory

relief pursuant to Ex Parte Young, 209 U.S. 123 (1908).

I

A

The facts in this matter are undisputed. Plaintiffs Lamar Grizzle and Kelvin

Simmons are both Georgia residents who served on school boards in their

respective communities at the time this action was filed. Grizzle is a member and

currently Chairman of the Board of Education of Bartow County, Georgia, a

position to which he was first elected in November 2002 and re-elected in 2006.

2

Grizzle’s daughter is an assistant principal at Pine Log Elementary School, which

is located within the Bartow County school district.

Simmons was a member of the Board of Education of the City of Gainsville,

Georgia from 1991 through 2009. His wife is an assistant principal at Gainsville

Middle School. Although he intended to run for re-election in November 2009, he

was disqualified due to the passage of 2009 Georgia Laws 164 (“HB 251”).

In compliance with the District Court’s preliminary injunction in this matter, Grizzle 2

was permitted to qualify for the Republican primary during the fourth week of April 2010. He

was re-elected in November 2010.

3
HB 251 was enacted by the State of Georgia and went into effect on May 5,

2009. HB 251 amended Georgia Code Ann. § 20-2-51 by adding the following as

subsection (c)(2):

No person who has an immediate family member sitting

on a local board of education or serving as the local

school superintendent or as a principal, assistant

principal, or system administrative staff in the local

school system shall be eligible to serve as a member of

such local board of education. As used in this paragraph,

the term “immediate family member” means a spouse,

child, sibling, or parent or the spouse of a child, sibling,

or parent. This paragraph shall apply only to local board

of education members elected or appointed on or after

July 1, 2009. Nothing in this Code section shall affect

the employment of any person who is employed by a

local school system on or before July 1, 2009, or who is

employed by a local school system when an immediate

family member becomes a local board of education

member for that school system.

Ga. Code Ann. § 20-2-51(c)(2) (2009), amended by Act of May 25, 2010, 2010 Ga.

Laws 468.

3

B

On January 11, 2009, the Plaintiffs filed an action in the District Court for

the Northern District of Georgia against the Honorable Brian Kemp, Secretary of

Plaintiffs in this litigation contest the version of Georgia Code Ann. § 20-2-51(c)(2) 3

amended by HB 251 but prior to the amendments of May 25, 2010. For ease, this opinion refers

to the statute at issue as “section 20-2-51(c)(2).”

4
State of Georgia, in his official capacity, the Election Board of the State of

4

Georgia, and the County Executive Committee of the Bartow County Republican

5

Party, alleging, inter alia, that the “nepotism provision” of section 20-2-51(c)(2),

6

as applied and on its face, violates the equal protection guarantee of the Fourteenth

Amendment. They additionally alleged that that provision violates their right of

free association, both as voters and as candidates for office, under the First

Amendment. Plaintiffs requested, inter alia, that the court declare section

20-2-51(c)(2) unconstitutional; that it grant a preliminary injunction against

enforcement of that section prior to the fourth week of April 2010, the deadline for

candidate qualification for party primary elections; and that the Court also grant a

permanent injunction against the section’s enforcement.

“There is created a state board to be known as the State Election Board, to be composed 4

of the Secretary of State, an elector to be elected by a majority vote of the Senate of the General

Assembly at its regular session held in each odd-numbered year, an elector to be elected by a

majority vote of the House of Representatives of the General Assembly at its regular session

held in each odd-numbered year, and a member of each political party to be nominated and

appointed in the manner provided in this Code section. . . .” Ga. Code Ann. § 21-2-30(a). “The

Secretary of State shall be the chairperson of the board. . . .” Id. at (b).

“The State Election Board is vested with the power to issue orders . . . directing 5

compliance with [Chapter 2 of the Georgia Code] or prohibiting the actual or threatened

commission of any conduct constituting a violation [of that Chapter] . . . .” Ga. Code Ann. §

21-2-33.1(a).

Under Georgia law, county executive committees of the respective political parties are

6

charged with certifying to the Secretary of State those candidates who have qualified for the

primary elections. Ga. Code Ann. § 21-2-154(a). 

5
On January 30, 2010, Plaintiffs requested that the District Court enter an

Order to Show Cause scheduling a hearing for a preliminary injunction. The Court

denied their request on January 21, 2010. On the same day, the Plaintiffs filed a

motion for a preliminary injunction and requested a hearing on their motion prior

to the candidate qualifying period of April 26 to 30, 2010.

The Republican Party, on February 5, 2010, filed a motion to be excused

from the case. It indicated that it would “abide by the statute as written or by any

injunction entered by the Court.” Mot. to be Excused at 2. The District Court

granted the Republican Party’s motion on February 12, 2010.

On February 12, 2010, the Secretary of State and the State Election Board

jointly filed a motion to dismiss them from this action. In an order issued on

March 15, 2010, the District Court granted the State Election Board’s motion to be

dismissed from this action, and denied the motion to dismiss the Secretary of State

as a party.

The Secretary of State filed an answer to the complaint on March 29, 2010.

On April 21, 2010, the District Court issued an Order granting in part and denying

in part Plaintiffs’ motion for a preliminary injunction. The District Court

preliminarily enjoined the Secretary of State and the Republican Party “from

enforcing or applying the portion of [Georgia Code Ann.] § 20-2-51(c)(2) that

6
precludes relatives of certain employees of a school system from running for

election to the school board governing that system, and from precluding Plaintiff

Grizzle or any other otherwise qualified individual from running for election to a

school board position within Georgia.” Id. at 60-61. It denied relief as to

Plaintiffs’ other claims, not pertinent to this appeal, and again rejected the

Secretary of State’s contention that he is not a proper party in this action.

The Secretary of State timely appealed from the District Court’s April 21

order. This Court has jurisdiction over this interlocutory appeal pursuant to 28

U.S.C. § 1292(a)(1).

II

The Secretary of State contends the District Court erred in holding that he is

a proper party in this action, and, accordingly, in entering a preliminary injunction

against him. He additionally argues that the District Court erred in applying strict

scrutiny to the Plaintiffs’ claims under the First and Fourteenth Amendments in its

assessment of the Plaintiffs’ Motion for Preliminary Injunction. Because the caseor-controversy requirement is jurisdictional in nature, we address that issue first.

A

The Secretary of State asserts that, because he cannot qualify, challenge or

certify candidates for local boards of education under Georgia’s election code, he

7
is not a proper party in this lawsuit. He maintains that, under Georgia’s election

code, in partisan elections such as those for local boards of education, a

7

candidate’s party is charged with determining the qualifications of aspirants for

office. Ga. Code Ann. § 21-2-153.1(a). Challenges to candidates to local office

8

may be mounted only by electors or the elections superintendent. § 21-2-6(b).

9

The elections superintendent then certifies the election results to the Secretary of

State as well as to the State School Superintendent. § 20-2-53.

10

The Secretary of State contends that, “[b]ecause he must accept, and cannot

alter, the qualifications and certification of Grizzle and Simmons [under Georgia’s

The court accepts the parties’ concession that elections to local boards of education in 7

Georgia are partisan. See Appellees’ Br. 6 (stating that the Bartow County school board election

is partisan); see Appellant’s Br. 4 (“The facts of this case . . . are not in dispute.”).

“Unless otherwise provided by law, all candidates for party nomination in a municipal 8

primary shall qualify as such candidates in accordance with the rules of their party.” § 21-2-

153.1(a).

“The superintendent upon his or her own motion may challenge the qualifications of any 9

[county or municipal] candidate [certified by the county or municipal executive committee,

respectively, of a political party or who files a notice of candidacy] at any time prior to the

election of such candidate. Within two weeks after the deadline for qualifying, any elector who

is eligible to vote for any such candidate may challenge the qualifications of the candidate by

filing a written complaint with the superintendent giving the reasons why the elector believes the

candidate is not qualified to seek and hold the public office for which the candidate is

offering. . . .” § 21-2-6(b).

“[I]t shall be the duty of the elections superintendent of each system or other political 10

subdivision to transmit to the Secretary of State and to the State School Superintendent a

certified statement of the election of members of a local board of education. . . .” § 20-2-53.

8
election code], he cannot be sued over a statute designed to prevent such

occurrence.” Appellant’s Br. 11.

Pursuant to the Eleventh Amendment, a state may not be sued in federal

court unless it waives its sovereign immunity or its immunity is abrogated by an

act of Congress under section 5 of the Fourteenth Amendment. Kimel v. Florida

Bd. of Regents, 528 U.S. 62 (2000); Seminole Tribe of Florida v. Florida, 517 U.S.

44, 55-57 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). Under the doctrine

enunciated in Ex Parte Young, 209 U.S. 123, however, a suit alleging a violation of

the federal constitution against a state official in his official capacity for injunctive

relief on a prospective basis is not a suit against the state, and, accordingly, does

not violate the Eleventh Amendment. Id. at 168; Frew ex rel. Frew v. Hawkins,

540 U.S. 431, 437 (2004).

A state official is subject to suit in his official capacity when his office

imbues him with the responsibility to enforce the law or laws at issue in the suit.

See Young, 209 U.S. at 161. In Ex Parte Young, the Supreme Court held that, as

the duties of the attorney general of Minnesota under both common law and statute

included “the right and the power to enforce the statutes of the state, including

. . . the act in question,” the attorney general was a proper party. Id.

9
In this matter, the Secretary of State is, by statute, a member and the

chairperson of the State Election Board. Ga. Code Ann. § 21-2-30(a) & (d).

Under Georgia law, “[t]he State Election Board is vested with the power to issue

orders . . . directing compliance with [Chapter 2 of Georgia’s election code] or

prohibiting the actual or threatened commission of any conduct constituting a

violation [of Chapter 2] . . . .” § 21-2-33.1(a). Partisan primary elections,

including those for local boards of education, fall within Chapter 2 of the state

election code. See Ga. Stat. tit. 21, ch. 2 (governing “Elections and Primaries

Generally”).

Plaintiffs here seek prospective injunctive relief against the Secretary of

State in his official capacity. Because their suit falls within the Ex Parte Young

exception, the Eleventh Amendment does not bar their suit. Although the

Secretary of State cannot directly qualify or challenge candidates for local boards

of education or certify the results of those elections, as a member and the

chairperson of the State Election Board, he has both the power and the duty to

ensure that the entities charged with those responsibilities comply with Georgia’s

election code in carrying out those tasks. Pursuant to Ex Parte Young, “[h]is

power by virtue of his office sufficiently connect[s] him with the duty of

enforcement to make him a proper party to a suit of the nature of the one now

10
before” this Court. 209 U.S. at 161. The District Court therefore did not err in

holding that the Secretary of State is a proper party in this action.

B

1

The Secretary of State also contends the District Court erred in determining

that the strict scrutiny standard applies to the Plaintiffs’ claims under the First and

Fourteenth Amendments. He argues that, due to this error, the issuance of a

preliminary injunction was improper.

“Although we review the district court’s entry of a preliminary injunction

under a deferential abuse-of-discretion standard, the legal conclusions upon which

an injunction is based are subject to more exacting de novo review.” Bank of Am.

Nat. Ass’n v. Colonial Bank, 604 F.3d 1239, 1242-43 (11th Cir. 2010).

The moving party must demonstrate the following in order for the District

Court to grant its motion for a preliminary injunction: “(1) a substantial likelihood

of success on the merits of the underlying case, (2) the movant will suffer

irreparable harm in the absence of an injunction, (3) the harm suffered by the

movant in the absence of an injunction would exceed the harm suffered by the

opposing party if the injunction issued, and (4) an injunction would not disserve

the public interest.” N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211,

11
1217 (11th Cir. 2008). The Secretary of State maintains that, because the District

Court applied the incorrect standard of review to Plaintiffs’ constitutional claims,

Plaintiffs have not demonstrated a likelihood of success on the merits. Our inquiry

thus begins and ends with this first prong of the test.

2

In its analysis of the standard it should apply in determining whether section

20-2-51(c)(2) violates the Equal Protection Clause of the Fourteenth Amendment,

the District Court stated that “the right to seek and hold public office is not a

fundamental right protected by the Constitution.” April 21 Order at 34 (internal

citations omitted). Nonetheless, it found that section 20-2-51(c)(2)

entirely precludes Plaintiffs from appearing on the ballot

as candidates for their respective local school boards,

and, consequently, its effect on Plaintiffs is extreme.

Moreover, it is extremely likely that [Georgia Code Ann.

§ 20-2-51(c)(2)] will severely burden the rights of

numerous Georgia voters, as it likely will bar individuals

across the State from running as candidates for their local

school boards, thereby depriving voters of the right to

vote for the candidates of their choice.

Id. at 37-38. Holding that section 20-2-51(c)(2) thus severely impacted “ballot

access” and “the right of association,” the District Court applied strict scrutiny to

Plaintiffs’ claims. Id.

12
The District Court assumed, for purposes of its review, that the Secretary of

State’s proposed interest–the prevention of nepotism–is a compelling state interest.

It stated that

the statute . . . is not narrowly tailored to serve that

purpose. Specifically, the statute is overly broad, because

it simply excludes certain relatives from office, rather

than addressing the real problem of nepotism–possible

biased decisions of school board members. The statute,

by the same token, is also too narrow, because it fails to

address other family relationships that might cause biased

decisions on the part of a school board member.

April 21 Order at 39. Additionally, the District Court noted,

Georgia already has statutes in place that address many

nepotism concerns, including: (1) [Georgia Code Ann.]

§ 20-2-58.1, which precludes school board members

from voting on employment decisions for relatives; (2)

[Georgia Code Ann.] § 45-10-3, which sets forth a code

of ethics for school boards members and includes a

provision that members must “[n]ever discriminate by the

dispensing of special favors or privileges to anyone,

whether or not for remuneration;” and (3) [Georgia Code

Ann.] § 45-10-4, which permits the Governor to remove

an official who breaches the provisions of [Georgia Code

Ann.] § 45-10-3.

Id. at 39-40 (quoting Ga. Code Ann. § 45-10-3).

The District Court stated that, “[a]pplying strict scrutiny, [Georgia Code

Ann.] § 20-2-51(c)(2) fails to pass muster.” Id. at 38. It thus held that the

Plaintiffs had shown a substantial likelihood of success on the merits at trial and

13
granted their motion for a preliminary injunction.

In support of the District Court’s conclusion, Plaintiffs maintain that

the nepotism provision violates their right to equal protection under the Fourteenth

Amendment because it treats them differently from similarly situated persons,

namely, individuals desiring to run for the school board who do not have family

members employed in certain positions in the relevant school system. With regard

to their claims under the First Amendment, Plaintiffs assert that the provision

violates their right to free association because it affects their right to seek office as

school board members as well as the right of voters to vote for them. They argue

that the District Court did not err in applying strict scrutiny because section

20-2-51(c)(2) completely bars them from running for office, and thus constitutes a

“severe restriction” on their right to be candidates as well as on voters’ ballot

access rights. They additionally note that the restriction is imposed based on

matters over which they have no control.

The Secretary of State contends that “the district court erred in holding

[Georgia Code Ann.] § 20-2-51(c)(2) unconstitutional [because] [t]here is no

severe burden on Grizzle’s and Simmons [sic] First and Fourteenth Amendment

[r]ights.” Appellant’s Br. 24. He argues that this case is analogous to those in

which courts have held that statutes requiring an individual to resign from office in

14
order to appear on the ballot for a different office (“resign-to-run” statutes) warrant

only rational basis review.

3

The Supreme Court has not “attached such fundamental status to candidacy

as to invoke a rigorous standard of review.” Bullock v. Carter, 405 U.S. 134, 142-

43 (1972). Recognizing, however, that the right to vote is fundamental, the Court

has noted that “the rights of voters and the rights of candidates do not lend

themselves to neat separation; laws that affect candidates always have at least some

theoretical, correlative effect on voters.” Id. at 143. But “[n]ot all restrictions

imposed by the States on candidates’ eligibility for the ballot impose

constitutionally suspect burdens on voters’ rights to associate or to choose among

candidates.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also Bullock,

405 U.S. at 143 (“not every limitation or incidental burden on the exercise of

voting rights is subject to a stringent standard of review.”). A restriction on

candidacy implicates a fundamental right only if “the challenged restriction

unfairly or unnecessarily burdens the ‘availability of political opportunity.’”

Anderson, 460 U.S. at 793 (quoting Clements v. Fashing, 457 U.S. 957, 964 (1982)

(plurality opinion)); see also Morial v. Judiciary Comm’n of Louisiana, 565 F.2d

295, 301 (11th Cir. 1977) (Candidacy is “an important, if not constitutionally

15
‘fundamental,’ right.”).

In reviewing challenges to restrictions on candidacy and ballot access under

the First and Fourteenth Amendments, we “must first consider ‘the character and

magnitude of the asserted injury to the rights protected by the First and Fourteenth

Amendments that the [candidate] seeks to vindicate.’” Swanson v. Worley, 490

F.3d 894, 902 (11th Cir. 2007) (quoting Anderson, 460 U.S. at 789). When the

plaintiffs’ rights are subject to “severe” restrictions, those restrictions survive only

if they are “‘narrowly tailored and advance[] a compelling state interest.’” Id. at

903 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997));

see Burdick v. Takushi, 504 U.S. 428, 434 (1992) (“severe” regulation must be

“‘narrowly drawn to advance a state interest of compelling importance.’”) (quoting

Norman v. Reed, 502 U.S. 279, 289 (1992)). By contrast, “a State’s important

regulatory interests” are generally sufficient to justify a state election law which

burdens the First and Fourteenth Amendment rights of candidates and voters with

restrictions which are “reasonable” and “nondiscriminatory.” Swanson, 490 F.3d

at 903 (citing Burdick, 504 U.S. at 434). “Lesser burdens . . . trigger less exacting

review . . . .” Id. Thus, in order to assess whether, on the current record, strict

scrutiny applies to the Plaintiffs’ claims under the First and Fourteenth

Amendments, we must determine whether the restriction imposed by section

16
20-2-51(c)(2) is “severe” based on the “character and magnitude” of Plaintiffs’

asserted harm.

In Morial v. Judiciary Commission of Louisiana, 565 F.2d 295 (5th Cir.

1977), the former Fifth Circuit considered whether a Louisiana statute and canon

11

of judicial conduct requiring judges to resign from their current office before

running for a non-judicial position comported with the plaintiffs’ rights to free

speech and freedom of association under the First Amendment and their right to

equal protection of the laws under the Fourteenth Amendment. Id. at 299-307.

The Fifth Circuit stated that, although Judge Morial had a “substantial” First

Amendment interest in becoming a candidate, “in order to judge the substantiality

of the impairment,” that interest must be weighed in light of his interests left

unaffected by the Louisiana statute. Id. at 301. The Court noted that

Louisiana’s resign-to-run requirement does not burden

[Judge Morial’s] right to vote for the candidate of his

choice or to make statements regarding his private

opinions on public issues outside a campaign context; nor

does it penalize his belief in any particular idea. These

are core first amendment values.

Id.; see also Clements, 457 U.S. at 972 (no first amendment violation where state

constitutional provisions “in no way restrict appellees’ ability to participate in the

Decisions of the Fifth Circuit rendered prior to October 1, 1981 are binding precedent 11

of this Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).

17
political campaigns of third parties. They limit neither political contributions nor

expenditures. They do not preclude appellees from holding an office in a political

party. . . . [A]ppellees may distribute campaign literature and may make speeches

on behalf of a candidate.”) The Fifth Circuit also stated that “[t]he impact of the

resign-to-run requirement upon voters is even less substantial[,]” as it did not

exclude candidates based on their viewpoint, or their membership in an identifiable

group, such as the poor or minority parties. Morial, 565 F.2d at 301-02 (citations

omitted).

In addressing the level of scrutiny appropriate to review the plaintiffs’

challenge to the Louisiana statute under the First Amendment, the Court stated in

Morial,

The impairment of the plaintiffs’ interests in free

expression and political association stemming from

enforcement of the resignation rule is thus not

sufficiently grievous to require the strictest constitutional

scrutiny. Neither is the impairment insubstantial or

innocuous; a level of scrutiny which guarded against only

those measures offending logic would be a gratuitous

insult to the seriousness of the interests involved in

becoming or supporting a candidate for public office.

Instead, we should employ a level of scrutiny which

requires the state to show a reasonable necessity for

requiring judges to resign before becoming candidates for

elective judicial office.

Id. at 302 (internal citations omitted).

18
The Supreme Court considered the equal protection question at length in

Clements v. Fashing, 457 U.S. 957 (1982). The plaintiffs in Clements brought

both First Amendment and Fourteenth Amendment challenges to Article III, § 19

and Article XVI, § 65 of the Texas Constitution. Id. Article III, § 19 stated that

[n]o judge of any court, Secretary of State, Attorney

General, clerk of any court of record, or any person

holding a lucrative office under the United States, or this

State, or any foreign government shall during the term

for which he is elected or appointed, be eligible to the

[state] Legislature.

Id. at 960. Article XVI, § 65 provided for the automatic resignation of certain state

officers upon the announcement of their candidacy “in any General, Special or

Primary Election, for any office of profit or trust under the laws of this State or the

United States other than the office then held, at any time when the unexpired term

of the office then held shall exceed one (1) year[.]” Id. The Court noted that it had

“departed from traditional equal protection analysis” in cases involving

classifications based on economic status and in those burdening emerging, smaller,

or independent political parties or candidates. Id. at 964-65 (citations omitted).

The Supreme Court also stated in Clements that the concerns underlying

those cases–filing fees, invidious discrimination, and discrimination based on

viewpoint or political affiliation–did not apply to the matter before it. Id. at 964.

Addressing Article III, § 19, it held that the classification was not invidious,

19
arbitrary, or irrational and that the burden imposed on a Justice of the Peace by that

section–effectively, a maximum two-year waiting period between the end of his

current term in office and announcing his candidacy for the state legislature–was

de minimis. Id. at 967 (citing Storer v. Brown, 415 U.S. 724, 733-37 (1974) (no

constitutional violation where individual was disqualified from running in party

primary if he had been registered or affiliated with a different party within the

preceding twelve months)). “[T]his sort of insignificant interference with access to

the ballot need only rest on a rational predicate in order to survive a challenge

under the Equal Protection Clause.” Id. at 968.

The Supreme Court further stated in Clements that, pursuant to Broadrick v.

Oklahoma, 413 U.S. 601, 607 (1973), the singling out of particular officeholders

for this restriction did not offended equal protection. Id. at 969. “‘[T]he

legislature must have some leeway in determining which of its employment

positions require restrictions on partisan political activities and which may be left

unregulated.’” Id. (quoting Broadrick, 413 U.S. at 607 n.5.). The state may,

consistent with equal protection, regulate “one step at a time, addressing itself to

the phase of the problem which seems most acute.” Id. at 970.

The Supreme Court likewise reviewed the classification behind Article XVI,

§ 65, the “resign-to-run” provision, for a “rational predicate.” Id. Noting that there

20
was no apparent “invidious purpose” behind the provision, it held that the

legislature’s “one step at a time” approach was permissible under equal protection.

Id. at 970-71.

Reviewing the plaintiffs’ First Amendment claims, the Supreme Court held

that they failed for the same reasons the plaintiffs’ equal protection claims

failed–because the burden on their interests in candidacy was de minimis rather

than “severe.” Id. It remarked that those claims additionally failed due to the

limited nature of the challenged restrictions on political activity. Id.

The Second Circuit, too, has confronted the constitutionality of “resign-torun” provisions, in Fletcher v. Marino, 882 F.2d 605 (2d Cir. 1989). In that case,

plaintiffs, who were members of a community school board, argued that a New

York statute making current community school board members ineligible for

employment by any community school board or city board, and making certain

public officials ineligible for membership on community school boards violated,

inter alia, their right to freedom of association under the First Amendment. Id. at

608-10. The Second Circuit applied a lesser standard of scrutiny in its review of

the plaintiffs’ claims. See id. at 613. The law, it stated, “does no more than

prohibit certain municipal employees, political party office holders and elected

officials from being community school board members. It does not stop anyone

21
from running for any office.” Id.

The Second Circuit in Fletcher also evaluated the plaintiffs’ First

Amendment claim as to infringement on the voters’ right to choose a candidate

under a lesser standard of review. Id. at 614. The New York legislature, it held,

“has not prevented people with certain ideas from becoming candidates. It has not

prevented people from certain protected backgrounds from becoming candidates.

It has only prevented people holding certain jobs or certain party leadership

positions from becoming members of community school boards.” Id.

The Plaintiffs here attempt to distinguish this case from Morial, Clements,

and Fletcher on two bases. We are not persuaded.

Plaintiffs first maintain that section 20-2-51(c)(2) “enacts a total ban from

elective office for the thousands of close relatives of existing school board

members, superintendents, principles [sic], assistant principals and ‘system

administrative staff.’” Appellees’ Br. 21. Plaintiffs overstate the point. Section

20-2-51(c)(2) prohibits them, and like individuals, only from running for the

school board governing the system in which certain family members are employed.

Plaintiffs may run for any other elected office; they may vote, distribute campaign

literature, voice their political opinions, and participate in and hold office in their

political party of choice. Under the balancing test articulated by this Court in

22
Swanson, the Plaintiffs’ injury under the First Amendment is not so “severe” as to

require strict scrutiny.

Additionally, Plaintiffs suggest that the type of restriction at issue in this

matter–nepotism–warrants closer scrutiny than that afforded in the “resign-to-run”

cases. They argue that the plaintiffs in those cases were faced with a choice as to

whether to step down from their current posts in order to run for office under the

challenged law. Here, Plaintiffs have no control over their eligibility as candidates

for the desired school boards; their eligibility is entirely based on the employment

of their “immediate family member[s].” See Ga. Code Ann. § 20-2-51(c)(2).

This Court had occasion to consider the standard of review applicable to

anti-nepotism provisions specifically in Parks v. City of Warner Robins, 43 F.3d

609 (11th Cir. 1995). There, the plaintiff argued that a Georgia statute which

prohibited a city employee from working in the same department as a relative in a

supervisory position violated her right of intimate association under the First

Amendment, her substantive due process right to marry under the Fourteenth

Amendment, and her right to equal protection under the Fourteenth Amendment

due to its disparate impact on women. Id. at 612. In determining whether the

ordinance warranted strict scrutiny, this Court reviewed the effect of the restriction

under each constitutional provision, rather than considering a specific standard

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generally applicable to anti-nepotism provisions. Id. Because the provision at

issue did not require a heightened standard of review, this Court analyzed the

plaintiffs’ claims under the rational basis standard. Id. at 614-15. That section

20-2-51(c)(2) combats nepotism therefore does not, in itself, subject it to strict

scrutiny review.

In asserting that equal protection analysis of section 20-2-51(c)(2) demands

strict scrutiny, the Plaintiffs charge both that it is too narrow and that it is

overbroad. Plaintiffs argue that the statute’s failure to address potential nepotism

by grandparents, aunts, uncles, cousins, and the like demonstrates that “this statute

was not drafted with ‘nepotism’ as the purpose[,]” “but rather was intended to cost

someone elective office.” Appellees’ Br. 22-23. On this record, we cannot say

that the statute was enacted with an invidious purpose; pursuant to Clements, the

State may regulate one step at a time in order to address what it deems the most

pressing issues. Plaintiffs’ overbreadth argument similarly fails; that the statute

does not prevent nepotism in all its possible forms does not heighten the severity of

the restriction to necessitate strict scrutiny.

In addition, Plaintiffs argue that “the issue of nepotism can better be

addressed by specific rules relating to decisions regarding relatives . . . .”

Appellees’ Br. 26. They note that Georgia already has statutes in place that

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regulate school board members with respect to decisions affecting relatives

employed by the school system, including ethics provisions that subject a board

member to removal for breach. However, whether nepotism is “better” addressed

in one manner or another is irrelevant to our inquiry here; the standard of review

we apply in assessing the statute at hand is not measured by reference to alternative

measures. See, e.g., Morial, 565 F.2d at 301-03 (determining the appropriate level

of scrutiny prior to analyzing whether the restriction at issue “[met] the test of

reasonable necessity”). The Plaintiffs’ argument in this regard thus goes to the

question of whether Georgia Code Ann § 20-2-51(c)(2) is reasonably necessary to

combat nepotism. Because we hold here that the District Court erred in applying

strict scrutiny, we do not reach this issue.

Conclusion

“Candidacy for office is one of the ultimate forms of political expression in

our society.” Morial, 565 F.2d at 301. However, “[f]ar from recognizing

candidacy as a ‘fundamental right,’” the Supreme Court has stated “that the

existence of barriers to a candidate’s access to the ballot ‘does not of itself compel

close scrutiny.’” Clements, 457 U.S. at 963 (quoting Bullock, 405 U.S. at 143).

Likewise, although “[v]oting is of the most fundamental significance under our

constitutional structure[,] [i]t does not follow . . . that the right to vote in any

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manner and the right to associate for political purposes through the ballot are

absolute.” Burdick, 504 U.S. at 433 (internal citations and quotations omitted).

Only where candidacy or ballot access regulations severely burden the availability

of political opportunity do we apply strict scrutiny.

On the current record, the District Court erred in reviewing Plaintiffs’

constitutional claims under the strict scrutiny standard. Because the application of

strict scrutiny on review of the Plaintiffs’ constitutional claims was error, Plaintiffs

have not demonstrated a likelihood of success on the merits, as required to obtain a

preliminary injunction. We note that, although the Republican Party has been

excused from appearing in this matter, our decision reversing the grant of a

preliminary injunction applies to both the Secretary of State and the Republican

Party. We express no view as to the merits of any other theory of liability

Plaintiffs may wish to assert at any further proceedings before the District Court.

Pursuant to Ex Parte Young, 209 U.S. 123, the Secretary of State has the

duty and the power to enforce the State’s election code. The District Court did not

err in holding that the Secretary of State is a proper party in this action.

AFFIRMED in part, and REVERSED in part.

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