Constitutionality of Georgia’s anti-nepotism law regarding eligibility to serve on local school boards is not subject to strict scrutiny by courts
Grizzle v. Kemp, No. 10-12176 (11th Cir. Mar. 8, 2010)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit (AL, GA, FL) has ruled that a federal district court erred in issuing a preliminary injunction barring Georgia’s Secretary of State from enforcing a provision in the state law making a person ineligible to serve on a local school board if that person “has an immediate family member sitting on [that] 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.” The panel found that the district court erred when it applied strict scrutiny in analyzing the statute’s constitutionality under the Fourteenth Amendment’s Equal Protection Clause and the First Amendment provision guaranteeing freedom of association. The panel determined, however, that the lower court was correct in finding that the Secretary of State was the proper party to the suit.
Facts/Issues:Former Gainesville school board member Kelvin Simmons and Bartow County Board of Education Chairman Lamar Grizzle filed suit against Georgia Secretary of State Brian Kemp and the state election board challenging a state “anti-nepotism” law that bars them from seeking re-election. Simmons’ wife is an assistant principal in the Gainesville school system and Grizzle’s daughter is an assistant principal in the Bartow County school system. For purpose of the Eleventh Circuit panel’s opinion, the relevant contentions by the plaintiffs were that the statute violates: (1) their Fourteenth Amendment equal protection rights; and (2) their First Amendment right of free association, both as candidates for office and voters.
The district court issued a preliminary injunction barring the Secretary of State from enforcing the provision. While acknowledging that the right to run for political office is not a fundamental right, the court determined that the anti-nepotism provision has a severe impact on the plaintiffs as candidates and the voters of Georgia because of its exclusionary nature. As a result, the court found that the provision should be subjected to strict scrutiny to determine its constitutionality. Strict scrutiny, the most exacting constitutional analysis, requires a court to determine whether government action is narrowly tailored to, and advances, a compelling state interest. Applying the strict scrutiny test, the court concluded that the law failed to pass constitutional muster.
The Secretary of State raised two issues on appeal: first, whether the district court erred in finding that the secretary is a proper party to the suit; and second, whether the district erred in applying strict scrutiny.
Ruling/Rationale: The Eleventh Circuit panel affirmed the lower court’s ruling that the Georgia Secretary of State is a proper party to the suit. It reversed the district court’s issuance of the preliminary injunction barring enforcement of the anti-nepotism provision, however, on the ground that the lower court had erred in applying strict scrutiny to determine the constitutionality of the provision.
In regard to the first issue, the panel concluded that the suit was not barred by the Eleventh Amendment’s sovereign immunity provision because the plaintiffs’ suit fell within the exception to such immunity recognized in Ex Parte Young, 209 U.S. 123 (1908). “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.”
The panel then turned to the question of whether the district court erred in determining that the strict scrutiny standard applies to the plaintiffs’ claims under the First and Fourteenth Amendments. It agreed with the secretary that if the district court applied the incorrect standard to the provision, then the plaintiffs could not have demonstrated the likelihood of success on the merits of their claims entitling them to a preliminary injunction.
The panel concluded that the district court’s analysis broke down when it concluded that the anti-nepotism provision severely impacted “ballot access” and “the right of association.” While recognizing that the right to vote is fundamental and that laws restricting candidates’ rights can impact the fundamental right to vote, the panel noted, “[a] restriction on candidacy implicates a fundamental right only if the challenged restriction unfairly or unnecessarily burdens the “availability of political opportunity,” [citations and internal quotations omitted]. Based on U.S. Supreme Court precedent and the balancing test enunciated by the Eleventh Circuit in Swanson v. Worley, 490 F.3d 894, 902 (11th Cir. 2007), the panel concluded that the plaintiffs’ injury under the First Amendment was not so “severe” as to require strict scrutiny.
As to the Fourteenth Amendment equal protection claim, the panel found that the plaintiffs were simultaneously arguing that the provision was too narrow and too overbroad. The plaintiffs’ argument that the provision was too narrow because it failed ”to address potential nepotism by grandparents, aunts, uncles, cousins, and the like” was unavailing because ”we cannot say that the statute was enacted with an invidious purpose; … the State may regulate one step at a time in order to address what it deems the most pressing issues.” The panel also dismissed the plaintiffs’ overbreadth argument, finding it failed because ”[the fact] that the statute does not prevent nepotism in all its possible forms does not heighten the severity of the restriction to necessitate strict scrutiny.”
Grizzle v. Kemp, No. 10-12176 (11th Cir. Mar. 8, 2010)
[Editor's Note: A summary of the district court's opinion is available below.]