[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 12107

________________________ D.C. Docket No. 4:20

- cv - 00110

- MW

- MAF

INDEPENDENT PARTY OF FLORIDA , PARTY FOR SOCIALISM AND LIBERATION , Plaintiff s - Appellants ,
versus SECRETARY, STATE OF FLORIDA, In Her Official Capacity , Defendant

- Appell ee .

________________________ App eal from the United States District Court for the Northern District of Florida

________________________ ( August 3, 2020 ) Before WILLIAM PRYOR, Chief Judge, ROSENBAUM and LUCK , Circuit Judges. WILLIAM PRYOR, Chief Judge:

Case: 20-12107 Date Filed: 08/03/2020 Page: 1 of 152 This appeal requires us to decide whether a Florida ballot

- access law for presidential elections complies with the United States Constitution. Decades ago,

w e upheld a Florida law that required minor parties to submit a petition signed by three percent of registered voters to access the ballot in statewide elections. Libertarian Party of Fla. v. Florida , 710 F.2d 790 , 792 (11th Cir. 1983)

. But Florida now makes it easier for minor parties to gain access to the ballot. Under current law, minor parties may access the presidential ballo t either by satisfying a

one - percent signature requirement or by affiliating with a qualified national party. Fla. Stat. § 103.021(4)(a)

– (b). The Independent Party of Florida and the Party for Socialism and Liberation seek to place their presidential candidates on the ballot in Florida without satisfying either requirement. The district court denied their motion for a preliminary injunction agai nst the enforcement of these requirements. We affirm because we conclude that the minor parties are unlikely to succeed on their claims that the ballot

- access requirements unconstitutionally burden their First Amendment rights and deny them equal protectio n of the laws. I. BACKGROUND Florida offers minor political parties two ways to access the ballot in presidential elections. If a minor party affiliates with a national party that nominates candidates for President and Vice President at a national conventi on , the minor party may have those candidates listed on the ballot by sending the

Case: 20-12107 Date Filed: 08/03/2020 Page: 2 of 153 Department of State a certificate naming the candidates. Fla. Stat. § 103.021 (4)(a). To qualify as a “national party,” a party must successfully register as a national commit tee with the Federal Election Commission. Id. If a minor party does not affiliate with a qualified national party, its candidates for President and Vice President may appear on the ballot if the party submits a petition signed by one percent of registered voters in Florida. Id. § 103.021 (4)(b). This ballot

- access regime has governed presidential elections in Florida since 2012. Ten minor parties accessed the ballot using the affiliation method in the 2012 election and four did so in 2016. Minor parties also accessed the ballot using a similar affiliation method between 2000 and 2008

. It appears that no party has attempted to access the presidential ballot by the petition method since Florida first adopted an affiliation method in 1999

. The last time minor

- party presidential candidates accessed the ballot using the petition method was in 1996. The Independent Party of Florida and the Party for Socialism and Liberation seek to place their presidential candidates on the ballot in the upcoming election. The Party for Socialism and Liberation has already chosen its candidate for President ; the Indep endent Party of Florida is still in the selection process. Neither party affiliates with a qualified national party. And neither party has complied with the one

- percent signature requirement, which they contend burdens their constitutional rights.

Case: 20-12107 Date Filed: 08/03/2020 Page: 3 of 154 The mino r parties filed a complaint against the Florida Secretary of State and moved for a preliminary injunction. They alleged that the one

- percent signature requirement is an unconstitutional restriction on their Firs t and Fourteenth Amendment rights

. See genera lly Anderson v. Celebrezze , 460 U.S. 780 (1983) ; Burdick v. Takushi , 504 U.S. 428 (1992) . They also alleged that Florida violated the Equal Protection Clause by providing an alternative , easier method of ballot access for minor parties that affiliate with a national party. The district court denied the motion for a preliminary injunction. It ruled that the parties had standing to challenge the ballot

- access measures but that they were unlikely to succeed on the merits of their claims. The dis trict court evaluated the claims using the balancing test employed in Anderson , 460 U.S. 780 , and Burdick , 504 U.S. 428 , which require s courts to weigh the burdens imposed by an election regulation against the state interests that justify the measure. It c oncluded that the ballot

- access law does not impose a severe restriction on First and Fourteenth Amendment rights and that the State’s interest in requiring minor parties to prove a modicum of state or national support before appearing on the ballot was su fficient to justify the law. II. STANDARD S OF REVIEW We review the denial of a preliminary injunction for abuse of discretion

. Horton v. City of St. Augustine , 272 F.3d 1318, 1326 (11th Cir. 2001)

. We review

Case: 20-12107 Date Filed: 08/03/2020 Page: 4 of 155 any underlying legal conclusions de novo and any factual findings for clear error. Id. III. DISCUSSION We divide our discussion in two parts. We first explain that at least one of the minor parties has standing to challenge both ballot

- access requirements. We then explain that the district court correctly denied the motion for a preliminary injunction because the parties are unlikely to succeed on the merits of their claims. A. The Party for Socialism and Liberation Has Standing

. W e must begin by ensuring that at least one plaintiff has standing under Article III of the Constitution to challenge the ballot

- access requirements. See Jacobson v. Fla. Sec’y of State , 957 F.3d 1193, 1201 (11th Cir. 2020) . To have standing, a plaintiff mu st establish an injury in fact that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable decision. Id. W hen a plaintiff seeks prospective relief to prevent a future injury, it must establish that the threa tened injury is “certainly impending.” Id. (internal quotation marks omitted). The Party for Socialism and Liberation has standing. It has chosen its candidate for President and seeks to place that candidate on the ballot in the upcoming presidential election. The Secretary of State previously rejected the party’s application for ballot access in the 2016 presidential election because it

Case: 20-12107 Date Filed: 08/03/2020 Page: 5 of 156 failed to comply with the statutory requir ements, and the party has every reason to believe the Secretary will continue to enforce those requirements in the upcoming 2020 election. The party will be injured if its candidate is denied access to the ballot. See Swanson v. Worley , 490 F.3d 894, 903 n .10 (11th Cir. 2007) . That future injury is “certainly impending”

— it will occur only months from now

. And because the party has neither affiliated with a qualified national party nor complied with the one

- percent signature requirement, its injury is fairly traceable to the challenged ballot

- access provisions, both of which the Secretary enforces. Fla. Stat. § § 20.10( 1 ) , 103.021( 4 ) (a)

– (b) ; see also Jacobson , 957 F.3d at 1211. Finally, its injury could be redressed by an injunction forbidding the Secretary to deny the party access to the ballot based on the challenged provisions. See Jacobson , 957 F.3d at 120 8

– 0 9. The Secretary contends that the reasoning of Bernbeck v. Gale , 829 F.3d 643 (8th Cir. 2016) , supports that the minor parties lack standing, but we disagree. I n Bernbeck a petition circulator alleged that he was injured by a signature

distribution requirement for voter initiative s because the requirement allegedly
gave the signatures of voters in rural counties greater weight than other signatures

. Id. at 647, 64 8 n.4. T he Eighth Circuit held that the petition circulator lacked standing because he never attempted to collect or submit a single signature for the initiative at issue and had no immediate plans to do so in the future. Id. at 648 &

Case: 20-12107 Date Filed: 08/03/2020 Page: 6 of 157 n.3 . Without any efforts or imminent plans to collect signatures, the petition circulator could not establish that any signatures were at imminent risk of being unequally valued unde r the signature

- distribution requirement. Id. at 648 & n.4. Because the alleged injury in Bernbeck was not denial of access to the ballot but instead a failure to value all signatures equally, the decision is inapposite.
B. The District Court Correctly Denied a Preliminary Injunction

. To obtain a preliminary injunction, a party must establish that it is substantially likely to succeed on the merits; that it will suffer irreparable injury absent an injunction; that the threatened injury to the m ovant outweighs any harm the injunction would cause the opposing party; and that the injunction would not be adverse to the public interest. Swain v. Junior , 961 F.3d 1276, 1284

– 85 (11th Cir. 2020)

. We can begin and end with the first requirement. Because the minor parties failed to establish a substantial likelihood of success on their claims, the district court correctly denied their motion for a preliminary injunction. In our Circuit, the balancing test of Anderson , 460 U.S. 780, and Burdick , 504 U.S. 428 , “ controls challenges to ballot access requirements .” Green v. Mortham , 155 F.3d 1332, 1337 (11th Cir. 1998) . This test applies whether a plaintiff challenges a ballot

- access requirement under the First Amendment or the Equal Protection Clause of the Fourteenth Amendment. Fulani v. Krivanek , 973 F.2d 1539, 1542

– 43 (11th Cir. 1992)

.

Case: 20-12107 Date Filed: 08/03/2020 Page: 7 of 158 Under this framework, the leve l of scrutiny we apply to a ballot

- access law depends on the severity of the burdens it imposes. S evere restrictions on ballot

access must be narrowly tailored to advance a compelling state interest. Grizzle v. Kemp , 634 F.3d 1314, 1322 (11th Cir. 2011)

. B ut reasonable, nondiscriminatory restrictions are usually justified by “ a State ’ s important regulatory interests ” in conducting orderly elections. Id. (internal quotation marks omitted) ; see also Timmons v. Twin Cities Area New Party , 520 U.S. 351, 358 (1997) (“Lesser burdens

. . . trigger less exacting review

. . . .”). However severe the burden, we must ensure it is warranted “ by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Common Cause/Ga

. v. Billups , 554 F. 3d 1340, 1352 (11th Cir. 2009) (internal quotation marks omitted). We applied this framework to uph o ld an earlier version of Florida’s ballot

access regime in 1983. Libertarian Party , 710 F.2d at 79 2

– 93 . At that time, Florida offered minor political parties only one path to the ballot: submitting a petition signed by three percent of registered voters, which at the time amounted to 144,492 signatures. Id. at 792. We held that this requirement did not “unreasonably encroach[] on ballot access ” because Florida law alleviated the burden of gathering signatures in several ways

. Id. at 793

– 94

. V oters could sign a petition regardless of party affiliation , voting history , or whether they had previously signed a petition for another minor party

. Id. at 794. Florida law imposed no geographic

- distribution

Case: 20-12107 Date Filed: 08/03/2020 Page: 8 of 159 requirements for collecting signatures , and parties could submit more signatures than necessary to ensure that a petition contained enough valid signatures

. Id.
P arties had 188 days to collect the required signatures , which “ compare [d] favorably ” to other time limits courts had upheld

. Id. And a lthough Florida charged 10 cents per signature to verify petitions and did not allow the charge to be waived , the law still was not “ impermissibly burdensome as to cost .” Id. These burdens on ballot access , we concluded, were justified by the S tate’s important interest in ensuring that political parties have a significant modicum of support before appearing on the ballot. Id. at 793. Florida’s curren t ballot

- access regime is less restrictive than the one we upheld in Libertarian Party , and it serves the same state interest

. Minor parties now have two ways to access the ballot: affiliating with a qualified national party or satisfying a one

- percent signature requirement. Fla. Stat. § 103.021(4)(a)

– (b). T he current signature requirement is less onerous tha n the earlier one in both relative and absolute terms: one percent of registered voters amounts to only 132,781 signatures instead of 144,492

. M inor parties now have nearly four years to collect the signatures instead of only 188 days

. And Florida law now allows election officials to waive the signature

- verification fee upon a showing of need. Fla. Stat. § § 99.097( 4 ) , 103.021(4)( b )

. A ll the “ alleviating factors that eased the burden of gathering signatures in Libertarian Party ”

— and more

— are present here.

Case: 20-12107 Date Filed: 08/03/2020 Page: 9 of 1510 Swanson , 490 F.3d at 904 . And Florida continues to invoke its well

- established interest in requiring candidates to “ make a preliminary showing of substantial support ” before appearing on the ballot , an interest the signature requirement plainly advance s . Munro v. Socialist Workers Party , 479 U.S. 189, 194 (1986) (internal quotation marks omitted) ; see also Libertarian Party , 710 F.2d at 793

. Despite previously upholding a more restrictive ballot

- access regime in Florida , we still must consider whether any changed circumstances require a different result under the Anderson

- Burdick test

. See Cowen v. Ga. Sec’y of State , 960 F.3d 1339, 1342 n.1 (11th Cir. 2020)

. After we decided Libertarian Party , Florida added a second method for minor parties to access the ballot. In addition to the petiti on method, minor parties may also access the ballot by affiliating with a qualified national party

— a party that nominates candidates for President and Vice President at a national convention and successfully registers as a national committee with the Feder al Election Commission. Fla. Stat. § 103.021(4)(a) . The minor parties contend that the affiliation method renders the ballot

- access regime unconstitutional because it undermines the State’s asserted interest for the one

percent signature requirement and treats minor parties differently based on whether they choose to associate with a qualified national party. We are unpersuaded. The affiliat ion method does not undermine the state interest that justif ies the

one - percent signature requirement

. Together, the affiliation and petition methods

Case: 20-12107 Date Filed: 08/03/2020 Page: 10 of 1511 serve the important state interest of limiting ballot access to presidential candidates that have a modicu m of support somewhere

— either nationally or in Florida. The minor parties contend that a State may not consider national support in setting ballot

- access requirements for presidential elections , but p residential elections implicate a unique “national interest” because they are decided by voters from across the nation. Anderson , 460 U.S. at 79 4

– 9 5

. For this reason, S tates have “a less important interest ” in limiting ballot access in presidential electio ns than in state and local contests. Id. at 795 ; accord Cowen , 960 F.3d at 1344

. By providing

an additional method of ballot access for minor parties whose presidential candidates have national support, Florida respect s the “national interest” in presidential elections. Anderson , 460 U.S. at 795

. It has not undermined its interest in requiring parties that have no demonstrated national support to prove some modicum of support in Florida . That States have a lesser interes t regulating ballot

access in presidential elections does not mean they have no interest. The minor parties dispute the premise that the affiliation method reliably measures national support, but their own evidence belies this argument

. T he minor parties submitted evidence that the Federal Election Commission will not grant national committee status to a party unless it has placed candidates for President and Congress on the ballot in several S tates and is organized across the United State s , both of which reflect national support

.

Case: 20-12107 Date Filed: 08/03/2020 Page: 11 of 1512 To be sure, the minor parties also offered evidence that candidates of qualified national parties do not always receive more votes in presidential elections than other minor

- party candidates. But a S tate’s proxy f or measuring a modicum of support need not be perfect , especially where the State seeks to balance “t he desire for liberal ballot access with the need to ensure that candidates achieve some modicum of support .” See Rockefeller v. Powers , 74 F.3d 1367, 1382 (2d Cir. 1995)

. The district court did not err in concluding that the affiliation method reasonably advances the State’s interest in granting ballot access to presidential candidates with a modicum of national support. The minor parties also challenge the ballot

- access law under the Equal Protection Clause because it treats minor parties differently based on whether they affiliate with a qualified national party

. O nly minor parties that affiliate with a national party ca n avoid the one

- percent signature requirement. Fla. Stat. § 103.021(4)(a)

– (b). And t he decision whether to affiliate may be based on the exercise of associational freedoms. For example, the Independent Party of Florida, true to its name, desires to remain independent and not associate with any national party

. The minor parties contend that subjecting them to a signature requirement that does not apply to minor parties that affiliate with a national part y denies them equal protection of the laws.

Case: 20-12107 Date Filed: 08/03/2020 Page: 12 of 1513 W e apply the Anderson

- Burdick test to resolve equal

- protection challenge s to a ballot

- access requirement. Fulani , 973 F.2d at 1542

– 43

. We first consider “ the character and magnitude ” of the asserted denial of equal treatment. Id. at 1544 ( quoting Anderson , 460 U.S. at 789 ). We then identify “ the precise interests put forward by the State ” to justify its rule and determine “ the legitimacy and strength ” of each interest. Id. at 1546 ( quoting Anderson , 460 U.S. at 789 ). We conclude that Florida’s goal of accounting for the national interest in presidential elections justifies its decision to provide different paths to the ballot for minor parties that affiliate with a qualified national party and those that do not. The minor parties’ asserted injury is that they “ were forced to bear an unequal burden in order to gain access to the ballot ” based on the exercise of their associational freedom. See i d. at 1544. We agree that treating political parties differently may impermissibly burden constitutional rights when no legitimate

reason exists for the distinction. In Fulani , for example, we held unconstitutional a law that excluded minor parties from a fee

- waiver provision because the State failed to explain how its di scriminatory treatment of minor parties advanced any relevant state interest in regulating ballot access. Id. But the Supreme Court has made clear that States may account for relevant differences among political parties and candidates when regulating ballot access. See , e.g. , Jenness v. Fortson , 403 U.S. 431, 441

– 42 (1971) (explaining that Georgia was not “guilty of invidious

Case: 20-12107 Date Filed: 08/03/2020 Page: 13 of 1514 discrimination” by acknowledging “obvious differences” between established and new political parties and “provi ding different routes to the

. . . ballot” based on those differences) ; accord Libertarian Party , 710 F.2d at 795

. Florida’s interest in accounting for the national interest in presidential elections justifies its decision to provide minor parties that affiliate with a qualified national party a different path to the ballot. T he presidential candidates of qualified national parties are lik ely to appear on the ballot in multiple other S tates besides Florida and to enjoy some level of national organization. In that respect, they are not similarly situated to minor parties in Florida that have no proven national support. Although the extent to which States must accommodate the national interest in presidential elections is unclear, see Stein v. Ala. Sec’y of State , 774 F.3d 689, 691 (11th Cir. 2014) , they are certainly permitted to account for this interest by tailoring ballot

- access restrictio ns for candidates with a modicum of national support. And the burden this disparate treatment imposes on minor parties that do not affiliate with a national party is not severe. As explained above, Florida has provided them an alternative path to the ballo t that is not overly burdensome

. For these reasons, we conclude that the provision of “different routes to the

. . . ballot” for differently situated minor parties is justified by sufficiently weighty state interests

. Jenness , 403 U.S. at 44 2 ; see also Common Cause/Ga

. , 554 F.3d at 1352

.

Case: 20-12107 Date Filed: 08/03/2020 Page: 14 of 1515 IV. CONCLUSION We AFFIRM the denial of the motion for a preliminary injunction. Case: 20-12107 Date Filed: 08/03/2020 Page: 15 of 15