Green Party v. Kemp (171 F. Supp. 3d 1340, 2016)

United States District Court for the Northern District of Georgia 2016-03-17

The Public Health and Welfare

Citations

Full opinion text

ORDER

RICHARD W. STORY, United States District Judge

This case comes before the Court on Defendant Brian Kemp’s Motion for Summary Judgment [75], Plaintiffs’' Motion for Summary Judgment [76], and Plaintiffs’ Motion to Strike Defendant’s Reply Brief [84], After reviewing the record, the Court enters the following Order.

Background

Plaintiffs the Green Party of Georgia (“Green Party”) and the Constitution Party of Georgia (“Constitution Party”) brought this case in advance of the 2012 Presidential Election, challenging Georgia’s ballot access laws.

Plaintiffs challenge O.C.G.A. § 21-2-170, which requires a candidate from a political body seeking inclusion on an election ballot for an office that is voted upon statewide to obtain signatures in a nominating petition from at least one percent of the registered voters eligible to vote in the last election. Plaintiffs seek injunctive relief and a declaration that this provision unconstitutionally burdens Plaintiffs’ rights under the First and Fourteenth Amendments.

Under Georgia law, a “political party” is any political organization whose candidate received 20 percent of the votes cast in the preceding gubernatorial or presidential election. O.C.G.A. § 21-2-2(25). A candidate may appear on Georgia’s election ballot if he or she is nominated in a primary conducted by a political party. O.C.G.A. § 21-2-130(1).

But independent candidates and candidates representing “political bodies” may appear on the election ballot as well. Georgia law provides that such a candidate may access the ballot if he or she submits a nomination petition signed by a specified percentage of voters (one percent for a presidential election). O.C.G.A. § 21-2-170(b).

Plaintiffs filed the present action asserting that each is a political organization or “body” registered under O.C.G.A. § 21-2-110 and § 21-2-113 “desiring to be a qualified party for 'the purposes of having its candidate put on the 2012 Presidential Ballot in Georgia.” (Compl., Dkt. [1] ¶3.) Each of the Plaintiffs alleges that it “meets all the statutory requirements to place its presidential candidate on the ballot except for the petition requirements of O.C.G.A. § 21-2-170.” (Id.) Plaintiffs allege that “[t]hese signature requirements are in excess of those that satisfy constitutional standards and unduly infringe upon the constitutional rights of the Plaintiffs to participate in the electoral process.” (Id. ¶18.) Thus, Plaintiffs ask this Court to declare this statutory scheme unconstitutional and order “that the Plaintiffs be placed on the 2012 Presidential Ballot in Georgia.” (Id. at 5.)

This case has had a long history in this Court and in the Eleventh Circuit Court of Appeals. In the interim, the 2012 Presidential Election has come and gone. Now, facing the 2016 Presidential Election, the Court once again recites the procedural history and facts relevant to the present motions.

I. Procedural Background

The Court dismissed Plaintiffs’ Complaint on July 17, 2012, concluding that because higher courts have held that the requirement under O.C.G.A. § 21-2-170 for a petition containing at least five percent of the registered voters for certain elections was not unconstitutional, the requirement that a presidential candidate’s petition contain one percent of the registered voters would not be unconstitutional. (Dkt. [4].) Plaintiffs moved for reconsideration, which the Court similarly denied, relying on Supreme Court and Eleventh Circuit precedent in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Cartwright v. Barnes, 304 F.3d 1138 (11th Cir.2002); and Coffield v. Kemp, 599 F.3d 1276 (11th Cir.2010), to again conclude that Georgia’s ballot petition requirements were not unconstitutional and that therefore Plaintiffs had not stated a claim upon which relief may be granted.

Plaintiffs appealed to the United States Court of Appeals for the Eleventh Circuit. On January 6, 2014, the Court of Appeals reversed and remanded, holding that this Court employed the type of “litmus-paper test” that the Supreme Court rejected in Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and directing this Court to instead apply Anderson’s balancing approach. Green Party of Ga. v. Georgia, 551 Fed.Appx. 982 (11th Cir.2014) (hereinafter, “Green Party I”). The Court of Appeals further held that this Court erred in dismissing Plaintiffs’ action because past decisions “do not foreclose the parties’ right to present the evidence necessary to undertake the balancing approach outlined in Anderson.” Id. (citing Bergland v. Harris, 767 F.2d 1551, 1554 (11th Cir.1985).)

On May 19, 2015, applying the Anderson standard as instructed, the Court issued an Order denying Plaintiffs’ (First) Motion for Summary Judgment. Green Party of Ga. v. Kemp, 106 F.Supp.3d 1314, 1321 (N.D.Ga.2015) (hereinafter, “Green Party IP). The parties engaged in additional discovery and filed the present cross-motions for summary judgment on the developed record.

II. Factual Background

Each Plaintiff is a political organization or “body” registered under O.C.G.A. § 21-2-110 and § 21-2-113 and “meets all the statutory requirements to place its presidential candidate on the ballot except for the petition requirements of O.C1G.A. § 21-2-170.” (Pis.’ Statement of Material Facts on Mot. for Summ. J. or Alternatively Mot. for a Prelim. Inj. (“Pis.’ 1st SOMF”), Dkt. [8] ¶ 1-2; 2012 Esco Aff., Dkt. [7-1]; 2012 Haag Aff., Dkt. [7-2].)

Defendant Brian Kemp is Georgia’s Secretary of State. (Pis.’ 1st SOMF, Dkt. [8] ¶ 3.) Under O.C.G.A. § 21-2-50, the Secretary of State is charged with significant duties related to the regulation and supervision of the elections process in Georgia.

A. History of Georgia’s Ballot Access Restrictions

In 1922, Georgia passed a law that authorized government-printed ballots. (Pl.’s Statement of Material Facts to Which There is No Genuine Issue to be Tried (“Pis.’ SOMF”), Dkt. [76-2] ¶ 9.) Prior to that, Georgia had no ballot access law. (Id. ¶ 8.) From 1922 until 1943, independent and political party candidates could access the November ballot “with no petition and no fee.” (Id. ¶ 9.) In 1943, Georgia adopted a 5% petition requirement for access to the general election ballot. (Id. ¶ 11.)

In 1944, 27,500 signatures were required to access the presidential ballot in Georgia; no candidates qualified. (App’x to 2015 Winger Aff., Dkt. [76-3] at 8.) In 1960, candidates needed 65,530 signatures and in 1964, candidates needed 65,107 signatures; no candidates qualified either year. (Id. at 9.) In 1968, one party cleared the 83,339 signature threshold. (Id.) In 1972 and 1976, candidates needed to collect 98,022 and 108,395 signatures, respectively; no third-party or independent candidates were on Georgia’s ballot either year. (Id.) In 1980, two candidates qualified with over 57,540 signatures. (Id.)

Georgia’s election code was amended to include the current one percent petition requirement in 1986. (Pl.’s 1st SOMF, Dkt. [8] ¶ 8.)

In 1992, Ross Perot collected at least 26,955 signatures to be the sole qualifying candidate. (App’x to 2015 Winger Aff., Dkt. [76-3] at 9.) In 1996 and 2000, respectively, the Reform party garnered at least 30,036 and 39,094 signatures. (Id.) Since 2000, no independent or third-party candidate has qualified by petition. The signature requirement in 2004 was 37,153; in 2008, 42,489; and in 2012, 50,334. (Id.)

In addition to the number of signatures required by O.C.G.A. § 21-2-170, Georgia law imposes other requirements on candidates seeking to access a ballot through petition. Each sheet of a political body or independent candidate’s nomination petition must bear the circulator’s affidavit, which must be subscribed and sworn before a notary public. O.C.G.A. § 21-2-170(d). The affiant must, inter alia, swear that each signature was signed within 180 days of the last day on which the petition may be filed. Id. Additionally, different sheets must be used by signers residing in different counties or municipalities. Id.

As an alternative to the petition procedure for candidates set forth in O.C.G.A. § 21-2-170, Georgia law provides that a registered political body may place a candidate on the ballot by nomination at its convention through one of two avenues. O.C.G.A. § 21-2-180. First, a registered political body may file a petition for ballot access through convention with the Secretary of State. Like a petition submitted pursuant to O.C.G.A. § 21-2-170, this petition must be signed by a number of registered voters equal to one percent of the voters who were registered and eligible to vote in the preceding general election. O.C.G.A. § 21-2-180(1). Essentially, Section 180 allows a political body to petition to place a whole slate of candidates on the ballot. Georgia’s election code allows a political body fifteen months to collect those petition signatures. O.C.G.A. § 21-2-182. The State does not impose any geographic distribution requirement for petition signatures. See generally id., O.C.G.A. § 21-2-183. A voter may sign as many petitions as he or she wishes. Id. Further, Georgia does not place limits on how many petition signatures a political body or candidate may submit. (Harvey Aff., Dkt. [75-3] ¶¶ 28-29.)

Second, a political body may place a candidate on the ballot by nomination at its convention if the political body received votes equal to one percent of the total number of registered voters eligible to vote in the preceding election. O.C.G.A. § 21-2-180(2). The Libertarian Party has accessed the ballot in this way on various occasions. (2012 Ford Aff., Dkt. [29-1] ¶¶ 6, 9; Harvey Aff., Dkt. [75-3] at 5 n.l.) Plaintiffs, however, claim that this provision makes it “impossible” for political bodies such as themselves to alternatively qualify and therefore leaves nomination by petition under O.C.G.A. § 21-2-170 or O.C.G.A. § 21-2-180(1) as Plaintiffs’ only viable avenues to access the ballot. (Pis.’ 1st SOMF, Dkt. [8] ¶ 7.) In support of their contention that nomination petitions are their only workable means of ballot access, Plaintiffs claim that the State does not accurately tally write-in votes (id.), hindering third party or independent candidates from reaching the threshold of one percent of actual votes that would allow a political body “automatic access” under O.C.G.A. § 21-2-180(2).

B. Other States’ Ballot Access Restrictions

In support of their Motion for Summary Judgment, Plaintiffs submit an affidavit by Richard Winger that discusses Georgia’s ballot access requirements in the context of other states’ restrictions. (2015 Winger Aff., Dkt. [76-3].) Mr. Winger also submits an appendix of historical voting data in support of his assertions in his affidavit. (App’x to 2015 Winger Aff., Dkt. [76-3] at 6-22.) Mr. Winger opines that “if a state requires even slightly more than 5,000 signatures for an independent presidential candidate, or the presidential candidate of an unqualified party, to get on the ballot, it will never have a crowded presidential general election ballot.” (2015 Winger Aff., Dkt. [76-3] ¶ 1.) The data he submits show that, of the 401 instances in which a state required independent candidates or candidates of an unqualified party to collect more than 5,000 signatures, no candidate was able to access the ballot 33% of the time. (Id. ¶ 4.) One candidate was able to access the ballot 20% of the time; two candidates, 20%; three candidates, 13%; four candidates, 8%; five candidates, 4%; and six candidates were able to qualify only 4% of the time. (Id.)

C. Third-Party or Political Body Candidates in Georgia

Since the passage of Georgia’s current code section in 1986, Ross Perot qualified as an independent presidential candidate in 1992 and 1996, as did Pat Buchanan in 2000. (Pl.’s 1st SOMF, Dkt. [8] ¶ 8; Def.’s Resp. to Pis.’ 1st SOMF, Dkt. [30] ¶8.) Plaintiffs have sought to be included on the State of Georgia’s presidential ballot in the 2012 and prior elections. Neither Plaintiff nor any other “minor party,” however, has qualified a presidential candidate for ballot access by petition since Mr. Buchanan in 2000. (Pis.’ SOMF, Dkt. [76-2] ¶ 13.)

1. Green Party Efforts to Access the Ballot

The Georgia Green Party attempted to place its candidates on Georgia Presidential ballots through petition drives in 2000, 2004, 2008, and 2012. (Pis.’ SOMF, Dkt. [76-2] ¶ 23.)

For the 2000 election, Georgia Green Party activists began circulating nominating petitions in the summer or fall of 1999. (Id. ¶ 27.) The Atlanta Police Department issued criminal trespass warnings to Green Party petitioners collecting signatures at the Atlanta Pride Festival in June of 2000. (Id. ¶ 28.) Following this incident, the Green Party continued to collect signatures, ultimately collecting around 9,000 signatures for their presidential candidate’s petition to access the Georgia ballot. (Id. ¶ 30.) In 2000, nearly 40,000 signatures were required. (Id. ¶ 30.) Accordingly, the Green Party’s candidate, Ralph Nader, did not appear on Georgia’s ballot, even while appearing on the ballot in 43 other states. (Id. ¶ 32.)

In 2004, the Georgia Green Party collected about 3,000 signatures for the Party’s presidential ticket. (Id. ¶ 39.) That year, Georgia required 37,153 signatures to access the ballot. (App’x to 2015 Winger Aff., Dkt. [76-3] at 4.) The Green Party’s presidential ticket was included on 28 other state ballots and garnered -write-in votes in 15 additional states, including Georgia. (Pis.’ SOMF, Dkt. [76-2] ¶41.)

In 2008, a “handful of volunteers collected a few hundred signatures” for the Green Party’s presidential candidate, Cynthia McKinney. (Id. ¶ 42.) The Green Party, however, ultimately chose not to “expend their energies on a petition drive.” (Id.)

In 2008, Georgia required 42,489 signatures to access the presidential ballot. (App’x to 2015 Winger Aff., Dkt. [76-3] at 4.) Ralph Nader again ran for President, this time as an Independent candidate. (Pis.’ SOMF, Dkt. [76-2] ¶ 44.) In light of Georgia’s signature requirement, the Nader campaign “made a strategic decision,” and “did not even consider attempting to qualify for the ballot in Georgia” because of the “excessive hurdle” the petition requirement put on his “volunteer, grassroots efforts.” (Kafoury Deck, Dkt. [76-9] ¶¶ 3-4.) Mr. Nader qualified to be on the 2008 Presidential ballot in 45 other states. (Pis.’ SOMF, Dkt. [76-2] ¶ 45.) Georgia is one of only four states in which Mr. Nader did not appear on the ballot in any of his Presidential runs. (Id. ¶ 46.)

In 2012, the Green Party focused their petition efforts on Kwabena Nkromo accessing the ballot for House District 57 rather than on presidential petitions. (2015 Esco Aff., Dkt.) The Party’s candidate for President, Jill Stein, ran as a write-in candidate. (Pis.’ SOMF, Dkt. [76-2] ¶ 47.)

2. Constitution Party Efforts to Access the Ballot

The Constitution Party of Georgia is the successor party to the U.S. Taxpayers of Georgia (“U.S. Taxpayers Party”). (Def. Brian Kemp’s Statement of Material Facts Not in Dispute (“Def.’s SOMF”), Dkt. 75-1 ¶2.) The U.S. Taxpayers Party, like the Green'Party, has sought to place its candidates on the presidential ballot in Georgia through petition. (PL’s MSJ Br., Dkt. [76-1] at 22.)

In 1996, the U.S. Taxpayers Party circulated petitions to submit its candidate, Howard Phillips, to the presidential ballot in Georgia. (Pis.’ SOMF, ¶ 50.) The Party collected approximately 40,000 signatures in three weeks. (Def.’s SOMF, Dkt. [75-1] ¶ 79.) That year, 30,036 signatures were required to gain access to the ballot. (App’x to 2015 Winger Aff., Dkt. [76-3] at 4; Pis.’ SOMF, Dkt. [76-2] ¶ 51.) The Secretary of State ultimately rejected the U.S. Taxpayers Party’s petition, however, on grounds that many of the signatures were invalidated because they had been collected by a notary. (Pis.’ SOMF, Dkt. [76-2] ¶ 51.) The Party challenged the rejection in federal court, but the complaint was dismissed on grounds that the signatures collected by the notaries were, in fact, invalid under Georgia law. Nat. Law Party of Georgia v. Massey, No. CIV.A.1:96CV-2524CC, 1996 WL 1062558, at *2 (N.D.Ga. Oct. 17, 1996). Accordingly, although the U.S. Taxpayers Party had gathered over 40,000 signatures on a petition to place its candidate on Georgia’s ballot, Mr. Phillips was not included on the 1996 November ballot and instead ran as a write-in candidate. (Pis.’ SOMF, Dkt. [76-2] ¶ 53.) Mr. Phillips appeared on the ballot in 41 other states. (Id.)

In 2004, the Constitution Party was unable to collect the signatures required to get its candidate, Michael Peroutka, on the general election ballot. (Id. ¶ 58.) Mr. Per-outka appeared on the ballot in 34 other states and ran as a write-in candidate in Georgia. (Id. ¶ 59.) Similarly, in 2008, the Constitution Party’s candidate, Chuck Baldwin, appeared on the ballot in 37 other states, but ran as a write-in candidate in Georgia. (Id. ¶¶ 67-69.) In 2012, Virgil Goode, the Constitution Party’s candidate, appeared on the ballot in 26 other states but ran as a write-in candidate in Georgia. (Id. ¶¶ 74-75.) Georgia is one of only five states in which the Constitution Party’s Presidential candidate has never appeared on the ballot. The others are Arizona, Indiana, North Carolina, and Oklahoma. (Id. ¶ 75.)

D. Practicalities of Circulating Petitions

Plaintiffs provide evidence of the costs of collecting petition signatures. Political bodies may employ paid petitioners to collect signatures. Tom Yager, co-chair of the national Green Party’s access committee, states that in his experience, a paid petitioner charges about $2 per signature, in addition to lodging and travel expenses. (Pis.’ SOMF, Dkt. [76-2] ¶ 15.) Because signatures may be invalidated for a variety of reasons, Mr. Yager attempts to collect more signatures than the required number. For the approximately 50,000 signatures required to access the 2016 ballot in Georgia, the Green Party finds it would be “prudent to collect about 78,000 raw signatures to ensure a sufficient number of valid signatures.” (Id. ¶ 17.) Mr. Yager estimates that a statewide petition drive in Georgia would cost about $140,00 to $150,000. (Id.)

Other political body officials estimate the costs differently: Hugh Esco, former Green Party candidate, estimates that the cost of securing over 50,000 valid signatures would be approximately $175,203 plus qualifying fees. (Id. ¶ 21.) Ricardo Davis, state chairman of the Constitution Party of Georgia, estimates that the cost of achieving the Constitution Party’s minimum petitioning goal of 70,000 signatures would run from $70,000 to $350,000. (Id. ¶ 20.)

Once a party successfully accesses a ballot once, it is easier for the party to qualify for the next election cycle. For example, Ross Perot used “millions of dollars from his own personal fortune” to fund his campaigns and petition drives, including “his successful qualification as an independent presidential candidate in 1992 and his successful qualification as the Reform Party’s Presidential candidate in 1996.” (Id. ¶ 81.) Mr. Perot accumulated enough votes in the 1996 election to qualify the Reform Party “for millions of dollars in [Federal Election Commission] funds that could be used during the 2000 election, and which were used by Pat Buchanan as the Reform Party Presidential candidate to fund his campaign and petition drives that successfully qualified him as a Presidential candidate in 2000.” (Id. ¶ 82.)

The Georgia Libertarian Party successfully submitted a petition for ballot access in 1988, when the requirement was 25,759 signatures. (Id. ¶ 86.) The Libertarian Party has since been relieved of the need to petition because it has qualified for access pursuant to O.C.G.A. § 21-2-180(2), which allows “automatic” ballot access (through nomination by convention) to a political body that garnered one percent of the vote in the preceding election. (Id.)

E. Third-Party or Political Body Candidates in Other States

While Plaintiffs’ candidates have been unable to access the ballot in Georgia, both the Green Party and the Constitution Party’s candidates have been included on other states’ ballots. For example, in 1996, the Constitution Party’s presidential candidates appeared on the ballot in 41 states. (2012 Favorito Aff., Dkt. [7-3] ¶ 2.) Additionally, the Green Party’s ranks have included “roughly 150 publicly elected officials” at any one time. (2012 Eseo Aff., Dkt. [7-1] ¶ 7 (stating that in 2012, the Green Party had 133 elected officials from 22 states and the District of Columbia).) The Green Party has also achieved some success with its presidential candidate, Mr. Nader, who was listed on 46 state ballots and won nearly three percent of the popular vote nationally in 2000. (Id. ¶ 11.)

Discussion

As an initial matter, Plaintiffs’ Motion to Strike Defendant’s Reply Brief [84] is DENIED. Now, on this procedural and factual background, the Court proceeds to discuss the relevant law before beginning its analysis of the parties’ cross-motions for summary judgment.

III. Public Support Requirements for Ballot Access

In its May 19 Order, the Court reviewed public support requirements for ballot access. See Green Party II, 106 F.Supp.3d at 1318-19. Because of the rights and interests at stake here, that discussion bears repeating.

First and foremost, candidate eligibility requirements implicate basic constitutional rights under the First and Fourteenth Amendments. Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” Nat’l Ass’n for Advancement of Colored People v. State of Ala, ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The Supreme Court has explained that “strands of ‘liberty”’ are interwoven through questions of ballot access:

In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.

Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

As this Court and higher courts have recognized, the candidates who appear on the ballot are crucial to the voters’ exercise of those First and Fourteenth Amendment rights. “[V]oters can assert their preferences only through candidates or parties or both.” Anderson, 460 U.S. at 787, 103 S.Ct. 1564. “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974).

Third-party and independent candidates in particular play an important role in the voter’s exercise of his or her rights. “The right to vote is ‘heavily burdened’ if that vote may be cast only for major-party candidates at a time when other parties or other candidates are ‘clamoring for a place on the ballot.’” Anderson, 460 U.S. at 787, 103 S.Ct. 1564 (citing Lubin, 415 U.S. at 716, 94 S.Ct. 1315). “The exclusion of candidates also burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying-point for like-minded citizens.” Id.

Moreover, the Supreme Court has recognized the special place occupied by alternative candidates in our political system. In Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), the Court considered an Equal Protection challenge to the Illinois Election Code. That statutory scheme required new political parties and independent candidates to obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections, but applied a different standard in elections for offices of political subdivisions of the state. Id. at 175-176, 99 S.Ct. 983. For those elections, Illinois law required signatures of 5% of the number of voters who voted in the previous election for offices of the particular subdivision. Id. at 176, 99 S.Ct. 983. The operation of this scheme required independent candidates and new political parties in Chicago to collect more than 25,000 signatures. Id. The Court held that the discrepancy rendered the Illinois Election Code unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Id. at 180, 99 S.Ct. 983.

In emphasizing the important rights implicated by restrictions on access to the ballot and the role that third parties play in the exercise of those rights, Justice Marshall wrote for the majority:

The States’ interest in screening out frivolous candidates must be considered in light of the significant role that third parties have played in the political development of the Nation. Abolitionists, Progressives, and Populists have undeniably had influence, if not always electoral success. As the records of such parties demonstrate, an election campaign is a means of disseminating ideas as well as attaining political office.

Id. at 185, 99 S.Ct. 983.

But of course the important role played by candidates representing parties or political bodies outside the two major parties does not grant those candidates unfettered access to ballots. Anderson, 460 U.S. at 788, 103 S.Ct. 1564 (“not 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”); Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (“as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process”). Accordingly, states have enacted comprehensive^ and complex statutory schemes governing elections. Each provision of a state’s election code “inevitably affects-at least to some degree-the individual’s right to vote and his right to associate with others for political ends.” Anderson, 460 U.S. at 788, 103 S.Ct. 1564. These restrictions are, however, generally permissible in light of the state’s important regulatory interests, so long as they are reasonable and non-discriminatory. Id.

Many states, including Georgia, require prospective third-party or independent candidates to demonstrate that they enjoy some public support. These requirements further the state’s interest in creating an efficient and transparent election process. See Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (“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.”).

The controlling case law, however, does not provide a clear guide for determining how much support a candidate seeking ballot access must show. In 1971, the Supreme Court in Jenness v. Fortson held that a candidate must show a “significant modicum of support” to access the ballot. Id. Three years later, the Court echoed that language in American Party of Texas v. White, 415 U.S. 767, 789, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). In 1983, the Court in Anderson v. Celebrezze cited Jenness v. Fortson and American Party of Texas v. White for the proposition that states may require a “preliminary showing of substantial support.” 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Again, three years later, the Court reaffirmed that principle, holding that “it is now clear that States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the office.” Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986).

For the past thirty years, then, the law has been clearly established that states may require candidates seeking ballot access to show some level of support. But, lower courts have grappled with precisely how much support is required. As the Ninth Circuit Court of Appeals recently recognized,

Election cases are difficult. The historical background for such litigation changes rapidly.... [Bjallot-access requirements ... have proved difficult for courts to evaluate, given both the state’s compelling interests in preventing fraud and providing orderly election administration, and the Constitution’s mandate for free political expression and participation that require such ballot-access restrictions to survive strict scrutiny.

Nader v. Brewer, 531 F.3d 1028, 1040 (9th Cir.2008).

With this background in mind, the Court turns to the parties’ motions for summary judgment.

IV. Legal Standard — Motions for Summary Judgment

Federal Rule of Civil Procedure 56 requires that summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “The moving party bears ‘the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The applicable substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249-50, 106 S.Ct. 2505.

Finally, in resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). But, the court is bound only to draw those inferences that are reasonable. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted); see also Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (once the moving party has met its burden under Rule 56(a), the nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts”).

Finally, the filing of cross-motions for summary judgment does not give rise to any presumption that no genuine issues of material fact exist. Rather, “[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538-39 (5th Cir.2004).

Y. Cross-Motions for Summary Judgment

In its opinion reversing and remanding the Court’s ruling on Defendants’ Motion to Dismiss, the Eleventh Circuit instructed the Court to evaluate Plaintiffs’ claim under the balancing approach in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). In that case, John Anderson, an independent candidate for President, met all of Ohio’s substantive requirements for having his name placed on the ballot for the general election, but he was unable to participate because the filing deadline for candidates had passed. The question presented to the Supreme Court was whether Ohio’s early filing deadline for statements of candidacy placed an unconstitutional burden on the voting and associational rights of Anderson’s supporters.

In Anderson, the Supreme Court recognized that the direct impact of Ohio’s filing deadline fell on candidates for office, but also noted that the law burdened voters’ constitutional rights to associate for the advancement of their political beliefs and to cast their votes effectively. 460 U.S. at 787, 103 S.Ct. 1564. The Supreme Court stated: “Our primary concern is with the tendency of ballot access restrictions to limit the field of candidates from which voters might choose. Therefore, in approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” Id. at 786, 103 S.Ct. 1564.

However, the Anderson court cautioned: “Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates’ eligibility for the ballot impose eonstitutionally-suspect burdens on voters’ rights to associate or to choose among candidates.” Id. at 788, 103 S.Ct. 1564. “[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Id. (internal quotations and citation omitted). Therefore, “the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” Id. Among the States’ important regulatory interests are protecting “the integrity and reliability of the electoral process itself.” Id. For instance, the Supreme Court explained: “The State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates.” Id.

Given the competing, legitimate interests at stake, the Supreme Court in Anderson rejected a “litmus-paper test” for separating valid and invalid election restrictions. Id. at 789, 103 S.Ct. 1564. Instead, the Court adopted a balancing approach.

First, a 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.” Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Next, the court must “identify and evaluate the precise interests put forward by the State as justification for the burden imposed by its rule.” Id. In making this determination, the court must consider “the legitimacy and strength of each of those interests” as well as “the extent to which those interests make it necessary to burden the plaintiffs rights.” Id. Only after undertaking this analysis can a court conclude whether the challenged restriction is constitutional. Courts in the Eleventh Circuit are directed to follow Anderson’s approach to determine whether a ballot access law violates the First and Fourteenth Amendments. Bergland v. Harris, 767 F.2d 1551 (11th Cir.1985).

Following the Eleventh Circuit’s remand of this case to this Court, the Court considered Plaintiffs’ Motion for Summary Judgment. As discussed in Part I, supra, the Court denied Plaintiffs’ Motion, holding that the character of the asserted injury to the right to vote is significant, but that on that record, Plaintiffs had failed to carry their burden to show the Court that the alleged injury is of an appreciable magnitude. Green Party II, 106 F.Supp.3d 1314, 1321 (N.D.Ga.2015).

The Court further held, based on the record at the time, that the State in this case had an “undeniably legitimate” interest. Id. at 1323. The Court could not-and did not-conclude that the State had a real need to decrease voter confusion in Georgia. Id. The Court did not apply strict scrutiny at that time, because Plaintiffs had not provided evidence that the burden on their rights was “severe.” But, contrary to the State’s contention in its present briefs, nor did the Court conclude that strict scrutiny could not apply in this case. Rather, the Court wrote: “The Court cannot conclude on the record before it that the regulation in question here so severely restricts the right to vote as to compel strict scrutiny.” Id. at 1324 n. 5 (emphasis added).

Finally, the Court found that a genuine issue of material fact existed as to whether Plaintiffs had been reasonably diligent in seeking signatures. The Court held that “Plaintiffs must show that the challenges they face in accessing the ballot are attributable to the particular burdens imposed ■ by Georgia’s petition requirements and are not simply a result of the generic difficulty inherent in gaining access to a ballot” and that Plaintiffs faded to carry that burden based on the record then before the Court. Id. at 1327. Therefore, the Court held, it could not conclude as a matter of law that Plaintiffs had been unconstitutionally barred from accessing the ballot by the operation of Georgia’s laws. The Court denied Plaintiffs Motion for Summary Judgment.

Ultimately, the Court concluded that the record did not support a holding for Plaintiffs.. The parties have since engaged in additional discovery and have developed the record. The record before the Court now is significantly more robust than it was at the time of the Court’s May 19, 2015 Order. As such, the Court essentially must start with a clean slate in its analysis of the parties’ cross motions for summary judgment. The Seventh Circuit Court of Appeals has recognized that “the Supreme Court has consistently taken an intensely practical and fact-oriented approach to deciding these election cases.” Bowe v. Bd. of Election Comm’rs of City of Chicago, 614 F.2d 1147, 1152-53 (7th Cir.1980) (declining to make a final determination on a 10% signature requirement “awaitfing] a more complete consideration on the merits and facts of this case”). Only now does the Court have the evidence before it to engage in this “practical and fact-oriented” analysis.

The Court now lays out Plaintiffs’ and Defendant’s arguments that they are entitled to judgment as a matter of law.

A. Plaintiffs’ Motion for Summary Judgment

Plaintiffs allege that O.C.G.A. § 21-2-170’s signature requirements “are in excess of those that satisfy constitutional standards and unduly infringe upon the constitutional rights of the Plaintiffs to participate in the electoral process.” (Compl., [1] ¶ 18.) Seqtion 21-2-170(b) provides:

A nomination petition of a candidate seeking an office which is voted upon state wide shall be signed by a number of voters equal to 1 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected.

Plaintiffs further allege that the “State of Georgia makes it impossible for political bodies to alternatively qualify under O.C.G.A. [§ ] 21-2-180(2)... because the State does not tally the write-in votes accurately, leaving it up to the counties who usually do not tally the write-in votes.” (Compl., Dkt. [1] ¶ 19.) Under O.C.G.A. § 21-2-180:

Any political body which is duly registered [under § ] 21-2-110 is qualified to nominate candidates for state-wide public office by convention if:

(1) The political body files vwith the Secretary of State a petition signed by voters equal in number to 1 percent of the registered voters who were registered and eligible to vote in the preceding general election; or

(2) At the preceding general election, the political body nominated a candidate for state-wide office and such candidate received a number of votes equal to 1 percent of the total number of registered voters who were registered and eligible to vote in such general election.

Plaintiffs seek judgment as a matter of law that this scheme violates the First and Fourteenth Amendments to the United States Constitution.

Plaintiffs argue that the test set forth in Anderson requires a finding that Georgia’s scheme is unconstitutional. The Court now briefly sets out Plaintiffs’ arguments for each step of the Anderson analysis before analyzing them in detail infra at Part VI.

1. Character and Magnitude of the Asserted Injury

Plaintiffs charge that Georgia’s petition signature requirement burdens three distinct and fundamental rights: (1) Plaintiffs’ right to select their own candidates, (2) “the right of individuals to associate for the advancement of political beliefs,” and (3)“the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” (Pis.’ Br. in Supp. of Mot. for Summ. J. (“Pis.’ MSJ Br.”), Dkt. [76-1] at 8.)

Plaintiffs rely on the developed record to argue that the injury to these significant rights is severe. For the 2016 Presidential Election, the “number of voters equal to 1 percent -of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking” is 50,334. (Pis.’ MSJ Br., Dkt. [76-1] at 10 (citing O.C.G.A. § 21-2-170(b)); see also App’x to 2015 Winger Aff., Dkt. [76-3] at 9.) This is, then, the number of signatures that Plaintiffs must submit in order to place their candidate on the ballot.

But Plaintiffs submit that a petition would have to contain' more than the minimum number of signatures because some signatures may be deemed invalid for a variety of reasons. (Pis.’ MSJ Br., Dkt. [76-1] at 11.) Some of those reasons stem from other portions of Georgia’s election code scheme. (Id. at 13.) Also, collecting signatures imposes significant costs on a third-party or independent candidate. (Id. at 12.) Finally, third parties or political bodies that constantly face high petition requirements suffer from “petition fatigue.” (Id. at 19-20.)

Ultimately, Plaintiffs argue that the evidence shows they have been “reasonably diligent and undertaken substantial efforts to nominate [their] candidates in Georgia, and that the challenges [they] face[] in accessing the Presidential ballot are attributable to the particular burdens imposed by the state’s petition requirements.” (Id. at 21, 29.)

2. Interests Advanced by the State

Plaintiffs contend that the State’s asserted interest in avoiding voter confusion and a crowded presidential ballot does not warrant the burdens on their rights. In support, Plaintiffs point to historical data showing that Georgia “has never suffered from an overcrowded general election ballot for President or resulting voter confusion.” (Id. at 33-34.) Plaintiffs also provide ■comparisons to other states that allow access to the presidential ballot with lower petition requirements, again asserting that the State’s interest is over-stated and not a valid reason for the restrictions imposed. (Id. at 34-35.)

Further, Plaintiffs emphasize the national nature of a presidential race, arguing that the State’s interest is even less important in this case than it would be in other statewide elections. (Id. at 36-37.)

3. Balancing

Plaintiffs argue that the balance of interests compel a finding that the petition signature requirement is unconstitutional. (Id. at 37-38.) Plaintiffs assert that the character and magnitude of the injuries to Plaintiffs’ constitutional rights require this Court to apply strict scrutiny. Under that standard, Plaintiffs claim, the minimal interests of the State must yield to Plaintiffs’ important constitutional rights. Georgia must instead “choose a signature requirement that has a less drastic impact upon independent or political body Presidential candidates.” (Id. at 38.)

B. Defendant’s Motion for Summary Judgment

Defendant seeks a judgment declaring that Georgia’s statutory scheme regulating access to the general election ballot is constitutional. (Def. Brian Kemp’s Br. in Supp. of Mot. for Summ. J. (“Def.’s MSJ Br.”), Dkt. [75-2] at 6.) Defendant asserts that the appropriate standard of review is “less exacting” than strict scrutiny, because the regulations impose “lesser burdens” on Plaintiffs’ rights. (Id. at 7 (quoting Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)).) The State’s “reasonable, nondiscriminatory restrictions” can therefore be justified by the State’s “important regulatory interests.” (Id.)

First, Defendant argues that Plaintiffs’ facial challenge to O.C.G.A. § 21-2-170 must fail because the statute has previously been held constitutional. (Id. at 9.) Moving on to the Anderson analysis, Defendant argues that the burdens imposed by Georgia’s ballot access laws are reasonable and non-discriminatory. (Id. at 11.) The State highlights that Georgia provides two routes for political bodies to gain access to the general election ballot: through the petition requirements at issue, here or through generating sufficient votes at the preceding general election. (Id.) The State characterizes the one percent requirement as “relatively modest” and provides examples of statewide candidates who appeared on the general election ballot by petition in Georgia. (Id. at 12.)

The State argues that the reason Plaintiffs cannot access the ballot is because they do not in fact enjoy a modicum of support in Georgia. (Id. at 14.) Defendant suggests that “the Georgia Green Party is having an internal struggle on how to grow its party and ... lacks sufficient membership willing to do the work.” (Id. at 15.) It claims that the Green Party’s past petition efforts have not “demonstrated support by more than a handful of volunteers.” (Id. at 16.) The State makes similar arguments with respect to the Constitution Party of Georgia. (Id.)

Further, Defendant says that the petition requirements are not unduly burdensome because other portions of Georgia’s election code ease the burden on a political body seeking access to the ballot. (Id at 17-19.) For example, for nomination by convention, a political body has 15 months to collect signatures from voters across the state. (Id. (citing O.C.G.A. §§ 21-2-182 and-183).) Those voters may be members of any political party and are not limited to signing a single petition. (Id. (citing Libertarian Party of Florida v. Florida, 710 F.2d 790, 794 (11th Cir.1983)).)

Next, Defendant argues that the State has a legitimate interest in limiting the general election ballot to political bodies and parties that have demonstrated a modicum of support. (Def.’s MSJ Br., Dkt. [75-2] at 19-20.) The State further argues that it was “not required, prior to enacting the regulation, to make a showing ‘of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access.’ ” (Id. at 20 (citing Munro, 479 U.S. at 194-95, 107 S.Ct. 533 (internal modifications omitted)).) Plaintiffs and the Court have agreed with Defendant that some restrictions are needed, and Defendant argues that the one percent requirement is reasonable and not severe. (Id. at 21.) Defendant also emphasizes Georgia’s interest in the elections for other statewide offices regulated by O.C.G.A. § 21-2-170. (Id. at 23.)

Finally, the State urges this Court to apply a “less exacting review.” (Id. at 22.) The State argues that in Green Party II, this Court held “that Georgia’s ballot access measures did not impose a severe burden on Plaintiffs’ rights.” (Def.’s Resp. to Pis.’ MSJ, Dkt. [80] at 7 (citing Green Party II, 106 F.Supp.3d at 1324 n. 5).) This holding, according to Defendants, precludes the application of strict scrutiny.

The Court now evaluates these arguments.

VI. Analysis

First, the Court asks what level of scrutiny should apply. The Court then moves to consider the Motions based on evidence in the developed record.

For the reasons that follow, the Court concludes that the burden on Plaintiffs’ rights is so .severe that strict scrutiny applies. But even if strict scrutiny does not apply, the State’s interest in regulating presidential elections is not sufficiently important to warrant the restrictions imposed by O.C.G.A. § 21-2-170. Accordingly, regardless of the level of scrutiny applied,- the one percent petition signature requirement in O.C.G.A. § 21-2-170 is unconstitutional as applied to presidential candidates and cannot stand.

As an initial matter, the State’s argument that Plaintiffs’ facial'challenge to O.C.G.A. § 21-2-170 must fail because the statute has been previously held constitutional is inapposite. Relying on Washington State Grange v. Washington State Republican Party, the State argues that “a facial challenge can succeed only when a plaintiff shows that ‘no set of circumstances exists under which the [statute] would be valid, i.e., that the law is unconstitutional in all of its applications.’ ” (Def.’s MSJ Br., Dkt. [75-2] at 9 (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)).) “[A] ballot access restriction for presidential elections ’requires a different balance’ than a restriction for state elections.” Green Party I, 551 Fed.Appx. at 984 (quoting Bergland v. Harris, 767 F.2d 1551, 1554 (11th Cir.1985)). The Eleventh Circuit has clearly instructed this Court to evaluate the precise burdens and interests at stake in this case. Id. at 984. The Court now proceeds to engage in that evaluation.

A. Standard of Review

In reviewing challenges to restrictions on candidacy and ballot access under the First and Fourteenth Amendments, a court “must first consider ‘the character and magnitude of the asserted injury that the candidate seeks to vindicate.’ ” Swanson v. Worley, 490 F.3d 894, 902 (11th Cir.2007) (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564) (internal modifications omitted). The “character and magnitude” dictates the standard of review the court must apply. When “the state election scheme imposes ‘severe burdens’ on the plaintiffs’ constitutional rights, it may survive only if it is ‘narrowly tailored and advancefs] a compelling state interest.’ ” Swanson v. Worley, 490 F.3d 894, 903 (11th Cir.2007) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997)). In contrast, an election law that burdens the constitutional rights of candidates and voters with “reasonable” and “nondiscriminatory” restrictions is generally justified by “a State’s important regulatory interests.” Grizzle v. Kemp, 634 F.3d 1314, 1322 (11th Cir.2011) (citing Burdick, 504 U.S. at 434, 112 S.Ct. 2059). In sum, “[l]esser burdens trigger less exacting review.” Id. (quoting Swanson, 490 F.3d at 903 (internal modifications omitted)).

Thus, in order to assess whether, on the current record, strict scrutiny applies to the Plaintiffs’ claims under the First and Fourteenth Amendments, the Court must determine whether the burdens imposed by O.C.G.A. § 21-2-170 are “severe” based on the “character and magnitude” of Plaintiffs’ asserted harm. See Grizzle, 634 F.3d at 1322.

1. Character of Rights

Candidacy in and of itself is “an important, if not constitutionally ‘fundamental’ right.” Grizzle, 634 F.3d at 1321 (quoting Morial v. Judiciary Comm’n of Louisiana, 565 F.2d 295, 301 (5th Cir.1977)). But a restriction on candidacy implicates a fundamental right where “the challenged restriction unfairly or unnecessarily burdens the ‘availability of political opportunity.’ ” Anderson, 460 U.S. at 793, 103 S.Ct. 1564 (quoting Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (plurality opinion)). That is the case here.

As discussed above at Part V(A)(1), Plaintiffs charge that Georgia’s petition signature requirement burdens three distinct and fundamental rights: (1) Plaintiffs’ right to select their own candidates, (2) “the right of individuals to associate for the advancement of political beliefs,” and (3) “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” (Pis.’ MSJ Br., Dkt. [76-1] at 8.)

While the Court finds that the first right advanced by Plaintiffs is not implicated in this case, it agrees that the latter two are “among our most precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). The right of association and the right of voters to cast their votes effectively are significant constitutional rights protected by the First and Fourteenth Amendments.

The First Amendment right of association is central to the operation of our system of government: “Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” California Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). Political parties are an important and long-standing mechanism through which citizens may exercise that right. Id. (“The formation of national political parties was almost concurrent with the formation of the Republic itself.”). And candidates are central to a political party’s role within the political system. A political party’s candidate “becomes the party’s ambassador to the general electorate in winning it over to the party’s views.” Id.

This case does not involve a challenge to laws that limit or dictate how a party chooses its candidate. Cf., e.g., California Democratic Party, 530 U.S. 567, 120 S.Ct. 2402(2000) (striking down California code provision that forced a political party to open its candidate-selection process to persons wholly unaffiliated with the party); Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (striking down California code provisions that restricted the primary activities and regulated internal affairs of political parties). But the cases discussing the right of a political party to select its own candidate emphasize the important role that candidacy plays in the party’s First Amendment activity. Indeed, the Supreme Court has noted that “a party’s choice of a candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interest and support.” California Democratic Party, 530 U.S. at 574, 120 S.Ct. 2402 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 372, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (Stevens, J., dissenting)). A political body candidate who cannot access Georgia’s ballot through the petition process must choose to run as a write-in candidate, or not to run at all. This effectively hobbles the candidate and the party.

What is more, the candidates’ and parties’ rights are not the only rights at stake here. Again, the Court emphasizes that ballot access restrictions have a substantial impact on both candidates and voters. And “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.” Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

Above all, “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Furthermore, voters have a right to cast their votes effectively. Williams, 393 U.S. at 30, 89 S.Ct. 5 (“the right of qualified voters, regardless of their political persuasion, to cast their votes effectively ... rank[s] among our most precious freedoms”). Accordingly, the constitutional rights at issue here are undeniably important.

2. Magnitude of Injury

The Georgia election code burdens the exercise of the right to vote effectively by the voters writ large. Simply put, “voters can assert their preferences only through candidates or parties or both.” Anderson, 460 U.S. at 787, 103 S.Ct. 1564. “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974). The voters of Georgia do not have the political choice available to citizens in other states. In this regard, the effect of Georgia’s election code is far from “theoretical”-the voters of Georgia have not had the opportunity to cast their ballots for third-party or independent presidential candidates.

Moreover, burdens that fall on new or smaller parties fall disproportionately on “those voters whose political preferences lie outside the existing political parties.” Anderson, 460 U.S. at 793-94, 103 S.Ct. 1564 (citing Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)). To that point, Plaintiffs find that their values and priorities are not reflected by the major parties, and that “the choices [the major parties] offer ... are nearly immaterial to the aspirations of the citizens and voters [Plaintiffs] organize to serve.” (2012 Esco Aff., Dkt. [7-1] ¶ 26.) Plaintiff the Green Party puts it plainly: “As Greens we believe we’re prepared to help address our communities and our nation’s problems. The people of Georgia deserve an opportunity to tell us if they agree.” (Id. ¶ 29.)

At bottom, Georgia voters’ political choice is limited in a way that voters’ choice in other states is not.

But the rights of voters outside of Georgia are also limited. The burdens imposed by the State of Georgia indirectly impact voters outside the state’s boundaries as well. For example, 46 states included Mr. Nader on their ballots in 2008. Mr. Nader earned nearly three percent of the popular vote nationally. (2012 Esco Aff., Dkt. [7-1] ¶ 11.) The voters in those states who cast their vote for Mr. Nader cast their vote in hopes that he would win the right to govern. Mr. Nader ran for a national office and enjoyed widespread national support-but because he was not included on every state’s ballot, he was not able to mount a truly national campaign.

Plaintiffs’ ability to appear on the general election ballot therefore affects not only the party’s rights, but also the First Amendment rights of voters in Georgia and nationwide. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 214, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (noting the fundamental importance of “[t]he right to associate with the political party of one’s choice”); Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 594 (6th Cir.2006) (emphasizing the national impact of a state’s ballot acce