Catoosa County Republican Party v. Catoosa County Board of Elections and Voter Registration

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12936

Non-Argument Calendar

____________________

CATOOSA COUNTY REPUBLICAN PARTY,

JOANNA HILDRETH,

Plaintiffs-Appellants,

versus

CATOOSA COUNTY BOARD OF ELECTIONS AND VOTER

REGISTRATION,

TOMMY DAVIS,

RON MCKELVY,

NINA CRAWFORD,

MARVIN CORNELISON,

Each in their individual and official Capacities

as Members of the Catoosa County Board of

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2 Opinion of the Court 24-12936

Elections and Voter Registration, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:24-cv-00095-WMR

____________________

Before ROSENBAUM, ABUDU, and WILSON, Circuit Judges.

PER CURIAM:

Plaintiffs Catoosa County Republican Party (“Catoosa

GOP”) and Joanna Hildreth, its chair (collectively, “Plaintiffs”), ap-

peal the dismissal of their 42 U.S.C. § 1983 civil-rights action, which

alleged that the defendants violated their rights to (1) freedom of

association, by forcing them to associate on the Republican pri-

mary ballot with certain political candidates they viewed as ideo-

logically outside the local party; and (2) freedom of speech, by re-

fusing to publish their proposed ballot questions.

The district court dismissed the action, concluding that

Plaintiffs lacked standing for the first claim and that the second

claim failed because it was based on government speech. After

careful review, we hold that Plaintiffs have alleged a concrete in-

jury to their associational right to exclude based on political beliefs,

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24-12936 Opinion of the Court 3

and that Plaintiffs have plausibly alleged an infringement of their

private speech. We vacate and remand for further proceedings.

I.

In the run-up to the 2024 Georgia primary election, the Ca-

toosa GOP, the county-level party organization for the Georgia Re-

publican Party, refused to qualify four candidates who had applied

to run as Republicans for partisan county offices. The Catoosa

GOP asserted that these candidates did not share its values and pol-

icy goals, so it did not want to be associated with them.

The four excluded candidates sued in Catoosa County Supe-

rior Court and obtained an order requiring the Catoosa GOP to

qualify them for the primary. When the Catoosa GOP refused, the

state court issued an order on March 8, 2024, bypassing the Catoosa

GOP and directing the Board of Elections to qualify the candidates

as Republicans for the primary. Later that same day—the deadline

to qualify for the primary—the Board of Elections complied with

the court order and qualified the candidates.

In its March 8 order, the state court reasoned that the four

excluded candidates were qualified under O.C.G.A. § 21-2-153(b),

which, among other things, requires primary candidates to meet

the requirements of “the procedural rules of their party.” O.C.G.A.

§ 21-2-153(b). The court explained that the “sole basis” that the

Catoosa GOP asserted for refusing to qualify the candidates was

the lack of a “qualifying affidavit” from its executive committee,

per its rules. But according to the court, the evidence showed that

the denials of qualifying affidavits were based on the executive

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4 Opinion of the Court 24-12936

committee’s “subjective determinations and substantive issues like

disagreements on tax policy and property rights.” Thus, the court

found that the party lacked valid procedural grounds to deny quali-

fication. The Catoosa GOP appealed, but the Supreme Court of

Georgia dismissed the appeal for failure to seek review with due

haste before the primary election. Catoosa Cnty. Republican Party v.

Henry, 906 S.E.2d 750, 754 (Ga. 2024).

Soon after the March 8 order issued, Hildreth and the Ca-

toosa GOP submitted several questions for placement on the pri-

mary ballot, including the following:

1. Do you think anti-Trump Democrats should be

able to get a court order to force the elections board

to qualify them as Republican candidates for office?

2. Did you know that [the four excluded candidates

(listed by name)] were not approved to run as Repub-

licans by the Republican Party?

In response, the Georgia Secretary of State’s Office sent an email to

the Catoosa GOP explaining that the “Secretary of State cannot

publish party questions on the ballot that contain the names of can-

didates or commentary regarding those candidates, as that consti-

tutes unlawful electioneering.”

On April 2, 2024, the Board of Elections held a hearing on

challenges to the excluded candidates’ qualifications brought by

Hildreth and others. The Board of Elections voted 4-1 not to re-

move the candidates from the Republican ballot.

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The Catoosa GOP and Hildreth then brought this action

against the Board of Elections, four members of that board

(Tommy Davis, Nina Crawford, Ron McKelvy, and Marvin Cor-

nelison), and its elections director (Tonya Moore) (collectively,

“Defendants”), in their individual and official capacities, under

§ 1983. Plaintiffs’ amended complaint alleged that the forced inclu-

sion of the four candidates on the Republican primary ballot, and

the exclusion of the requested ballot questions, violated their First

Amendment rights to free association and speech.

The district court denied Plaintiffs’ request for preliminary

injunctive relief before the primary. The court then granted De-

fendants’ motion to dismiss.

First, the district court found that Plaintiffs lacked standing

for their freedom-of-association claim. The court reasoned that,

while political parties had associational rights, Plaintiffs’ rights in

this case were based on the four candidates’ “mere presence on the

ballot,” since the Catoosa GOP had adamantly refused to qualify

the candidates. The court noted that “a party’s right to associate

for political purposes through the ballot is not absolute,” and “also

relies on the decision of its voters.” The court also reasoned that

county parties lacked discretion under Georgia law to deny qualifi-

cation to candidates based on substantive, rather than procedural,

concerns. Thus, the court concluded that “a county political

party’s associational rights are not injured ‘in a personal and indi-

vidual way’ where the party does not qualify or endorse the

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candidates and particularly where state law provides no discretion-

ary authority for the party to deny the candidates access to the bal-

lot.”

Second, the district court determined that the free-speech

claim failed because the ballot questions were government speech,

for reasons we explore in more detail below. This appeal followed.

II.

We review de novo the dismissal of a complaint for lack of

standing or for failure to state a plausible claim to relief. Polelle v.

Fla. Sec’y of State, 131 F.4th 1201, 1207 (11th Cir. 2025). In doing so,

we generally accept the plaintiff’s factual allegations as true and

construe them in the light most favorable to the plaintiff. Id.

III.

We start with the issue of standing. “Article III of the Con-

stitution limits federal courts to deciding ‘Cases’ and ‘Controver-

sies.’” Polelle, 131 F.4th at 1207. “One element of the case-or-con-

troversy requirement is that plaintiffs must establish that they have

standing to sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408

(2013) (quotation marks omitted). The law of Article III standing

is built on “separation-of-powers principles” and “serves to prevent

the judicial process from being used to usurp the powers of the po-

litical branches.” Id.

To establish Article III standing, “a plaintiff must show (i)

that he suffered an injury in fact that is concrete, particularized, and

actual or imminent; (ii) that the injury was likely caused by the

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defendant; and (iii) that the injury would likely be redressed by ju-

dicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021).

These requirements ensure that federal courts resolve only “real

controvers[ies] with real impact on real persons.” Id. at 424. If

Plaintiffs do not satisfy their burden on all three requirements,

there is no case or controversy to resolve. Id. at 423.

A.

Plaintiffs contend that, as a political party and its chair, they

have “an almost unfettered” constitutional “right to control their

own affairs, voters, rules, and associations.” That right was in-

fringed, according to Plaintiffs, when they were “forced to associ-

ate with the [four excluded candidates with] whom they have

elected not to associate.” They maintain that “if candidates who

do not believe in the party’s principles can run for office as repre-

sentation of the party, or even win in a general election with their

false title and representation, it hurts the party’s credibility, brand,

and ultimately even policy outcomes.”

The Supreme Court has explained that the First Amend-

ment “freedom to join together in furtherance of common political

beliefs necessarily presupposes the freedom to identify the people

who constitute the association,” Tashjian v. Republican Party of

Conn., 479 U.S. 208, 214 (1986) (internal quotation marks omitted),

and “to limit the association to those people only,” Democratic Party

of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981). In

other words, “a corollary of the right to associate is the right not to

associate.” Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000).

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Regarding the right not to associate, the Supreme Court

“has recognized that the inclusion of persons unaffiliated with a po-

litical party may seriously distort its collective decisions—thus im-

pairing the party’s essential functions—and that political parties

may accordingly protect themselves from intrusion by those with

adverse political principles.” La Follette, 450 U.S. at 122 (quotation

marks omitted). And generally “a [s]tate, or a court, may not con-

stitutionally substitute its own judgment for that of the [p]arty.” Id.

at 123–24.

We have recognized that a political party’s right to advance

the shared political beliefs of its members may include the right not

to associate with candidates on a primary ballot. In Duke v. Cleland,

for example, we held that controversial political figure David Duke

could not force his way onto the Republican presidential primary

ballot in Georgia if the party was an “unwilling partner.” 954 F.2d

1526, 1530–31 (11th Cir. 1992). We noted that Supreme Court

precedent recognized “the legitimacy of a political party’s exclu-

sion of a candidate in the party primary in order to protect itself

from those with adverse political principles.” Id. at 1532. And we

concluded that the party’s right to freedom of association “encom-

passes its decision to exclude Duke as a candidate on the Republi-

can Primary ballot because Duke’s political beliefs are inconsistent

with those of the Republican Party.” Id. Several years later, we

reaffirmed that the “Republican Party has a First Amendment right

to freedom of association and an attendant right to identify those

who constitute the party based on political beliefs,” and that it “did

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not have to accept Duke as a republican presidential candidate.”

Duke v. Massey, 87 F.3d 1226, 1234 (11th Cir. 1996).

Here, Plaintiffs have established an actual, particularized,

and concrete burden on their freedom of association. As we just

explained, a political party’s right to freedom of association encom-

passes the right to exclude “candidate[s] in the party primary in or-

der to protect itself from those with adverse political principles.”

Duke v. Cleland, 954 F.2d at 1532. Acting under its rules, the Ca-

toosa GOP sought to exclude certain candidates from the primary

ballot because it viewed them as ideologically outside the local

party. See id. Because of the state court’s March 8, 2024, order and

the later actions of the Board of Elections, though, it was prevented

from doing so, harming the Catoosa GOP’s freedom “to identify

those who constitute the party based on political beliefs.” Duke v.

Massey, 87 F.3d at 1234.

We respectfully disagree with the district court’s reasons for

distinguishing our Duke cases. The court noted that this case in-

volved a county-level political party, rather than a state or national

party. But we see no reason why a county-level party, and its con-

stituent members, would not also enjoy the right to freedom of as-

sociation and the right to identify those who constitute the local

party based on political beliefs. See id. The court also suggested

that the Duke cases are different because they involved a presiden-

tial primary where the party “enjoyed substantial discretionary

power” to select candidates, but Georgia state law “provides no dis-

cretion for a county party to deny qualification to candidates based

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10 Opinion of the Court 24-12936

on substantive concerns.” See O.C.G.A. § 21-2-153. That state law

may prevent the Catoosa GOP from excluding primary candidates

for ideological reasons, though, simply shows that its right to free-

dom of association has been burdened. It does not negate the right.

After all, a political party’s constitutional right to exclude, “central

to its freedom of association,” is not derived from state law. Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442, 445 (2008).

That’s not to say that the distinctions and observations that

the district court made, or that Defendants raised on appeal, are

not relevant to the merits analysis. See Burdick v. Takushi, 504 U.S.

428, 434 (1992) (explaining that a “flexible,” balancing standard ap-

plies when reviewing a state election law, taking account of the

strength of the respective interests). They are.

But they do not prevent Plaintiffs from establishing standing

to sue in the first place. See Polelle, 131 F.4th at 1221 (“We’ve

stressed repeatedly that standing in no way depends on the merits

of the plaintiff’s claims.” (quotation marks omitted)). Notably, the

bulk of Defendants’ briefing on whether Plaintiffs established a

“concrete injury” is devoted to the constitutionality of O.C.G.A.

§ 21-2-153(b) and the state’s compelling interests in regulating the

primary system. But those issues go to the merits, not to standing.

“[W]e’ve been clear that ‘a small injury, “an identifiable tri-

fle,” is sufficient’” to confer standing. Polelle, 131 F.4th at 1219

(quoting Common Cause/Ga. v. Billups, 554 F.3d 1340, 1351 (11th

Cir. 2009)). The district court found, and Defendants

acknowledge, that O.C.G.A. § 21-2-153(b)(1) prohibits “substantive

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or ideological” exclusions from a primary, which curtailed Plain-

tiffs’ ability “to identify those who constitute the party based on

political beliefs.” Massey, 87 F.3d at 1234; see Cleland, 954 F.2d at

1532 (recognizing a party’s right to exclude “candidate[s] in the

party primary in order to protect itself from those with adverse po-

litical principles”). It’s not necessary to decide whether Plaintiffs’

allegations of impairment of their right to freedom of association

entitle them to relief to hold that they have standing to seek it. See

Polelle, 131 F.4th at 1221–22.

For these reasons, we conclude that Plaintiffs have suffi-

ciently alleged a legally cognizable injury for which they have

standing to seek relief.

B.

Defendants also contend that any alleged constitutional vio-

lation is not traceable to the Board of Elections, but rather to the

independent state-court order issued on March 8, 2024. We note,

though, that the Board of Elections later voted not to remove the

four excluded candidates on April 2, 2024. In any case, the district

court did not reach the issue of traceability, and we conclude that

remand is necessary on Plaintiffs’ free-speech claim, as we explain

below. So we decline to consider traceability in the first instance

on appeal, and we leave that issue for the district court on remand. 1

1 For similar reasons, we decline to consider Defendants’ arguments that Plain-

tiffs failed to state a plausible claim of municipal liability, or that we should

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IV.

In their second claim, Plaintiffs assert a violation of the right

to freedom of speech arising from the rejection of proposed pri-

mary ballot questions based on their content. The district court

concluded that no free-speech claim existed because the ballot

questions were government speech. Because Plaintiffs plausibly al-

leged infringement of their private speech, we respectfully disa-

gree.

The First Amendment right to free speech “restricts govern-

ment regulation of private speech; it does not regulate government

speech.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467

(2009). “A government entity has the right to speak for itself . . .

and to select the views that it wants to express.” Id. (citations and

quotation marks omitted). It also may “receive[] assistance from

private sources for the purpose of delivering a government-con-

trolled message” to express its views. Id. at 468.

But when the government offers a forum for private speech,

it acts as a regulator, not a speaker, and must abide by First Amend-

ment restrictions. See id. at 469–70. For instance, “a government

entity may create a forum that is limited to use by certain groups

or dedicated solely to the discussion of certain subjects,” and it

“may impose restrictions on speech that are reasonable and view-

point neutral.” Id. at 470.

abstain under Younger v. Harris, 401 U.S. 37 (1971). Defendants are free to re-

new these arguments on remand.

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No “precise test” determines what counts as government

speech. Leake v. Drinkard, 14 F.4th 1242, 1248 (11th Cir. 2021). In-

stead, we look to three nondispositive factors: (1) history (whether

the medium has traditionally communicated government mes-

sages); (2) endorsement (whether observers would reasonably be-

lieve the government has endorsed the message); and (3) control

(whether the government maintains direct control over the mes-

sage conveyed). Id. If all three factors are present, the speech “will

almost always” be considered “that of the government.” Id. We

conclude that none of the three factors strongly support a finding

that ballot questions in a partisan primary election constitute gov-

ernment speech, contrary to the court’s findings, and that some are

perhaps mixed or point toward a finding of private speech. Accord-

ingly, we hold that the court erred in granting Defendants’ motion

to dismiss the free-speech claim. See Cambridge Christian Sch., Inc.

v. Fla. High Sch. Athl. Assoc., Inc., 942 F.3d 1215, 1234 (11th Cir. 2019)

(reversing the dismissal of a free-speech claim as based solely on

government speech where “one of the three factors points toward

finding that at least some private speech was disseminated over the

public-address system and the control factor is mixed”).

First, we see no indication that ballot questions in the con-

text of a partisan primary election have long communicated mes-

sages from the government, even assuming ballot questions in a

general election have been so used. Still, the record is largely un-

developed on this point.

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14 Opinion of the Court 24-12936

The second factor—endorsement—is arguably mixed. The

court observed that government entities organize and fund pri-

mary elections, and ballots clearly contain at least some govern-

mental speech. That the government plays some role in approving

questions for the ballot arguably supports a finding of government

speech as well. Cf. Cambridge Christian Sch., 942 F.3d at 1234

(“[V]iews don’t become the state’s merely because they are uttered

on a state platform, but being uttered on a state platform certainly

helps.”).

At the same time, though, voters who participate in a parti-

san primary election may understand that they are voting on inter-

nal party matters, not receiving government-endorsed messages.

Cf. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997)

(“Ballots serve primarily to elect candidates, not as forums for po-

litical expression.”). And here, Georgia law expressly requires pri-

mary ballots to include at the top in prominent type the words

“OFFICIAL PRIMARY BALLOT OF [REPUBLICAN] PARTY.” Fi-

nally, regarding control, the district court correctly conceded that

Georgia law “appear[s] to give the Republican Party unfettered dis-

cretion regarding what is included in the [ballot] questions.” Spe-

cifically, state law provides that “[i]f at any general primary a polit-

ical party shall submit to its members any matter or question to be

voted upon, . . . the superintendent or Secretary of State shall have

such language printed on the ballot form.” O.C.G.A. § 21-2-284(d).

This mandatory language reflects that government entities lack di-

rect control over messages submitted by “a political party . . . to its

members.”

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Still, “[n]o case precedent says that the government must

control every word or aspect of speech in order for the control fac-

tor to lean toward government speech.” Cambridge Christian Sch.,

942 F.3d at 1235–26. The district court concluded that the govern-

ment was in control of the messages because of the state’s general

ban on electioneering within the polling place. See O.C.G.A. §§ 21-

2-413(d), 21-2-414(a). But the mere fact that an election-related reg-

ulation may limit private speech rights to some degree does not

convert affected speech into government speech. Cf. Burdick, 504

U.S. at 433-4 (explaining that “[e]lection laws will invariably impose

some burden upon individual voters,” and are subject to a “flexible

standard” of review).

In sum, the factors are either undeveloped, mixed, or point

towards a conclusion that messages delivered on ballot questions

constitute private speech, not governmental speech. At this “early

stage” of litigation, Plaintiffs have done enough to make it plausible

that the ballot questions at issue involve private speech, not solely

government speech. See Cambridge Christian Sch., 942 F.3d at 1236

(reversing the grant of a motion to dismiss where we lacked

“enough information to say with any confidence that . . . [speech

at issue] was and would have been government speech as a matter

of law”). The district court therefore erred in dismissing Plaintiffs’

free speech claim on that basis. We otherwise express and imply

no opinion on the merits of Plaintiffs’ claim, nor do we “foreclose

that a court may later conclude on a fuller record that any message

delivered [in primary ballot questions] was government speech.”

See Cambridge Christian Sch., 942 F.3d at 1246 (“The only question

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16 Opinion of the Court 24-12936

we face today is whether Cambridge Christian has said enough to

make out a plausible case -- not whether it will probably prevail.”)

(quotation marks omitted).

V.

For these reasons, we vacate the dismissal of Plaintiffs’

§ 1983 action, and we remand for further proceedings consistent

with this opinion.

VACATED AND REMANDED.