*2 EDMONDSON, Before DUBINA and BARKETT, Judges. Circuit EDMONDSON, Judge: Circuit requires ease This us to determine constitutionality requir- of a statute ing political candidates nominees for offices. state We hold that Georgia’s rule violates federal constitu- provision tional and affirm the district court’s judgment.
I. Georgia legislature enacted § O.C.G.A. 21-2-140.1 The offices which include, applies others, among statute Governor, Governor, those of the Lieutenant State, Secretary General, Attorney agencies, of several judges heads all state general jurisdiction, courts all state 21-2-140(a)(4). Id. legislators. § Plaintiff- appellants are members of the Libertarian Party seeking the offices of Lieutenant Gov ernor, Agriculture, Commissioner Representatives. of the member Housе language quoted margin As the indi- cates, anyone test, who declines to take the positive, or basically who tests barred holding office. aspects Additional drug-testing were scheme outlined may, option district court: at the candidate, performed at an either approved testing laboratory medical ator provides: 1. O.C.G.A. nega- 21-2—140 results such test are .... tive No candidate shall be allowed to qualifies At the time a state candidate for office election, qualify for nomination or each such candi- nomination election to stating presents date shall file a ... such unless he she certificate office such certifi- illegal drugs candidate has been .... tested cate intentionally, imprecise. physician. Labora- doubtless of the candidate’s concerning purport follow did not list all of factors tory procedures identify Mandatory weighed for Federal Work- Guidelines that should be or to which Testing Programs, set out at 53 Drug weighty more place factors should be considered *3 (1988). 11,979 designed Fed.Reg. Thornburgh, The test is than others.” Willner v. (D.C.Cir.1991). presence or absence to reveal the F.2d illegal drugs. No information of five indicia by No court drug contemplated the federal seems to have enter use is
unrelated to statute; the a simply challenge indicates that tained Fourth Amendment the test negative. positive requiring testing state law of candidates for candidate tested Thus high state office. we observe at the arguments comprise three appellants’ affecting special the concerns the Von outset First, argue appellants claims.2 identifiable balancing test where the inter Raab state’s pro the Amendment tests violate Fourth the setting qualifications is in own est searches and sei hibition on unreasonable officers. Second, appellants categorize zures. affecting the Fourteenth Amend statute as history especially impor American run of vot of candidates to and ment one; in a this tant case like and Third, they categorize them. ers to choose nearly century ago: Court observed pro to submit to the test as their refusal cannot, under the speech act tected obviously indepen- It essential Amendment, barring a be the basis for First States, peace and dence and to their from the ballot. candidate prescribe tranquility, power that their qualifications of their own officers
II.
and free
external
should
exclusive
interference, except
plainly pro-
so far as
That the tests at issue are searches
meaning
Amend
Constitution of
United
of the Fourth
vided
within the
Railway
Skinner v.
States.
ment seems settled. See
602, 617,
Ass’n, 489 U.S.
Labor Executives’
Beckham,
570-71, 20
Taylor v.
178 U.S.
(1989).
L.Ed.2d
(1900); (cited
890, 898,
Employees Union Von
489 U.S.
(1991)).
2395, 2400, 115
In
L.Ed.2d
S.Ct.
(1989), this
In Von
the Customs office did not
But
use
past
among
beyond
rendering
unsym-
demonstrate
abuse
eleсted officials
employees
approved
to be tested. The Court
pathetic
interdiction efforts. The
however,
anyway,
the search
when confront-
high public
nature of
office in itself demands
ed with evidence that
and ethical
highest
honesty,
clear-sighted-
levels of
agents
great
demands on customs
were so
ness,
clear-thinking.
example,
For
totally incompatible
render
with
Lieutenant Governor is the President
position.
669-
nature
posed
Senate and has other executive duties
70,109
Thus,
at 1393.
because
law;
important,
though,
more
the Lieu-
argued
her
has
elected officials have
replace
tenant Governor is to
the Governor
*4
past
drugs,
in the
abused
the issue on Geor-
top
should the
executive office
va-
become
gia’s
is
unlawful
use
interest whether
is
§
cant. O.C.G.A.
45-12-7. The Governor
fundamentally
similarly
incompatible with
respond
emergencies,
must
to
§
state
id.
45-
high state office.
12-30,
necessary
and if
out
call
the state
45-12-27;
§§
militia. Id.
45-12-28.
canHe
question
We think that to ask this
agencies.
direct
law
state
enforcement
See
people Georgia
is also to
it. The
of
answer
35-2-33(b).
35-3-8.1;
§§
O.C.G.A.
The Gov
place in the trust of their elected officials
powers
has
appointment
ernor
broad
of
people
highly:
that which
value most
their
important offices, boards, commissions, and
liberty,
safety, their
their
economic well-be
45-12-50;
generally
§
so forth. See
id.
see
ing,
responsibility
ultimate
for law enforce
I,
(Governor
2,§
Ga.
1
par.
also
Const. Art.
ment,
Suprеme
and so on. The
Court has
appoints members of
State Board
Pardons
recognized
“drug
that
is
abuse
one of the
Paroles).
goes
It
saying
without
that
problems confronting
most serious
our soci
judgment
imperative
position.
clear
is
Raab,
today,”
674,
ety
Von
109
Likewise,
1395,
Repre
members of
House of
approved
S.Ct. at
and therefore has
general applicability
sentatives enact laws of
drug testing
part
Customs officers
be
state,
for the
while the
cause
Commissioner
eradicating
“the national interest
[in
Agriculture
agency
regu
leads an
irreparably
with broad
damaged
be
if
use] could
latory powers.
generally
§
See
id.
2-2-7
charged
safeguarding were,
those
with
it
be
(Commissioner
use,
Agriculture);
unsympathetic
cause оf their own
Ga. Const.
(House
Representatives).
Art. Ill
interdicting
to their mission of
The
narcotics.”
said,
positions
particularly susceptible
489 U.S. at
at 1393. That
follows,
forcefully,
bribery
against
it
“risks of
even more
that
those
and blackmail
which
highest
authority
guard.”
vested with the
executive
the Government is entitled to
policy
general
to make
fre
3. The Von Raab situation be 891 F.2d 872 Congress on the basis that define complex can the Cus- view state constitutional issues Department's sympa- toms mission and demand presented comity here and the interests of in this thy employment, to that mission as a condition of relations, sensitive area of federal-state we can- whereas the executive officers here are members not conclude the district court abused its discre- coequal Georgia legislature. of a branch to the See, Fla., e.g., County, tion. Grant v. Seminole regard involving pure We this distinction as (11th Cir.1987) (finding 817 F.2d question of state law. abuse of discretion where explain court district failed to Appellants complaint asserted their claim, that the "[ejxer- dismissal state because Constitution, violates the hut the cising pendent jurisdiction over the would claim district court decided no issues state law. required have the district court to decide a novel provides § U.S.C. the district courts ”). question of stаte law ... We also decline to "may supplemental jurisdic- decline to exercise by appel- decide the issues of state law raised tion over a claim” which otherwise have lants. power to hear if “the claim raises a novel or complex Appellants issue of state law....” Id. contend that the test ad- The deci- because notice, supplemental jurisdiction sion not to exercise ministered after substantial users may reviewed simply indulgence for abuse of discretion. Faucher discontinue their Also, turning and ethical behavior central note that our conclusion we reading job performance, by our deferential see Von strengthened high its own interests. Georgia’s appraisal of 109 S.Ct. at candidates for governmental is nec- Evaluating expect interest office must the voters to demand inquiry; while the essarily policy-based physical, some emo- disclosures about their probity electing officials whose importance of tional, position. fitness for the and mental judgment are unclouded Because us, self-evident drugs unlawful be Georgia outweigh intrusions might be— our own views we—whatever challenged testing, effected apprais- Georgia’s disregard would slow 21-2-140, applied hold O.C.G.A. light of cases like al of that need appellants, does violate Fourth Taylor, supra, reminding us that a state’s Amendment. sovereign interests are at stake. Against Georgia’s interests must be bal- III. plaintiff-appellants’ privacy interests. anсed Skinner, U.S. at Court in Appellants also contend bar noted that tests *5 (those ring persons the a class from ballot of excretory “require employees perform an tests), Georgia who to take the refuse priva- by great traditionally function shielded legislature has violated the of the can cy,” and Scalia wrote in Von Raab Justice people to run the didates “particularly were that the tests there they please. vote In their for whom briefs per- privacy and destructive of offensive they argument, appellants and at indicated 680, 489 at 109 S.Ct. at dignity.” U.S. sonal the Amend would characterize Fourteenth (Scalia, J., dissenting). 1398 nearly creating ment a absolute barrier to as But, the here is we think that intrusion excluding group persons a defined approved in Raab. even than that Von less Court, however, Supreme the ballot. The Here, can be taken at the office of the test recently rejected argument, has most in that physician, whereas the candidate’s Gregory Ashcroft, v. 501 U.S. compa- had taken in the the test to be (1991). There, 410 the 115 L.Ed.2d (auditory) ny employed an an observer recognized prerogative to Missouri’s Court aspects “independent contractor.” Other exclude from the ballot most candidates bearing are simi- the individual’s interests on mandatory judiciary over a retire state approved in Von Raab. The lar to those years. age seventy The Court ac ment federally-approved noted that district court a knowledged that when states bar class 53 privacy guidelines, such as those at Fed. ballot, Equal “the Pro candidates from the 11,979 (1988), seq. Reg. et serve as the bench- provides on state check such tection Clause The laboratory procedures. mark for test IV, section 4 and authority,” but cited Article only presence or absence reveals proposition Amendment for the Tenth The illegal drugs. re- indicia of the law enforce- sults are not made available to scrutiny demanding so our will the event candidate choos- ment officers firmly resting where we deal with matters (if through them taken one’s es not to file prerogatives. within a State’s constitutional physician, agent no know that own need recognition administerеd). is more than a This rule And, much like the test was responsibility for the constitutional agents privacy expecta- State’s whose Customs operation of own physical condi- establishment tions are diminished because and, thus, ‘fade-away period testing effect' of certain defeat the be unaware brief before 1396 They say testing just drugs.” 489 109 S.Ct. at purpose U.S. of the test. (citations omitted). But, he Persons would Amend- ineffective. the Fourth interests, caught by Georgia's would seem requirement limited there is no that a ment drugs; legisla- out control about single to be who are search most effective one be the Also, dangerous might be the most design. these worst cases ture as could not so public ineffective be unable to office. noted in Vоn "addicts time, may or in itself. period as be unreasonable irrational abstain even a limited 1548
government,
qualifications
well
Georgia
Representatives
as
House
based
appropriately designated
an
class
opposition
his stated
to the Vietnam war
office holders.
violated the First Amendment. We think
distinguishable
these cases are
in that
(citations
501
111
U.S.
S.Ct.
acts,
pure speech
involve
omitted).
divorced from un-
quotation
marks
internal
lawful conduct.
guides
Gregory
disposition
us in our
appellants’
There,
equal protection claim.
respect,
In that
this case is more like
scrutiny
Court held that rational basis
O’Brien,
United
v.
States
applies
qualifications
to state electoral
(1968),
L.Ed.2d
where
suspect
involving
classifiсation. 501 U.S. at
upheld against
the court
a First Amend-
at 2406.
Under rational basis
challenge
prosecution
ment
young
of a
scrutiny,
“will
courts
not overturn such a
card, ostensibly
man who burned his draft
varying
statute unless the
treatment of dif
persuade
in an effort
oppose
others
groups
persons
ferent
is so unrelated to
There,
the Vietnam War.
the Court stat-
any
legiti
achievement of
combination of
ed,
cannot accept
“[w]e
that an
view
purposes
mate
can
that we
conclude that
apparently
variety
limitless
of conduct can
legislature’s
actions were irrational.”
speech
person
be labeled
whenever the
en-
Bradley,
Vance
gaging
thereby
the conduct intends
(1979).
939, 943,
than is essential to the furtherance of that
IV.
377,
interest.”
391 U.S. at
S.Ct. at
88
Appellants’ First
claim
Amendment
based on their assertion that
the “refusal
Georgia’s drug-testing
passes
statute
mus-
tamely
government’s
to submit
First,
ter under the framework of O’Brien.
protected
speech
edict is itself
free
it
generally
power
within
refusing
act similar in
.nature
to salute a
Georgia
prescribe qualifications
for its
flag
king’s
upon
post
or the
hat set
Gregory,
elected officials. See
501
U.S.
village square.”
argument
this
We read
as
463,
which invalidated a state statute conditioning Third, ballot access on filing an affidavit government’s purpose is not disavowing the suppression overthrow state and na expression. of free pur- governments, Floyd, tional pose, above, v. Bond 385 we ensuring concluded 339, 17 (1966), 87 high S.Ct. L.Ed.2d 235 public officials to whom immense re- which held that sponsibilities possess exclusion of judg- member entrusted ment, interfering with the on matters required of states probity, and alertness governance.5 central to 21- Anyway, it is whether the their O.C.G.A. doubtful them. First, Fourth, effect, 2-140 does not violate the purpose, let has even the alone statute Fourteenth restricting rights. think an Amendment candidates speech We high Georgia; affirm the clearly perceive would much more audience judgment of district court.6 message of one who burns the intended message one draft card than AFFIRMED. generally test. See declines to take Community Non-Vio Creative Clark BARKETT, Judge, dissenting: Circuit lence, 468 U.S. (1984) majority recognizes, (noting that First As the there is no L.Ed.2d depends question mandatory drug testing in protection that the of conduct reasonably prohibit- ease is this an unreasonable search on whether conduct “would ed Amendment unless it is to be Fourth the viewer communica understood tive”). required “special governmental needs be- enforcement,” yond the normal for law need Fourth, regulation is no more restric- outweigh those needs candidates’ necessary. If expression than is tive of Treasury privacy Em- interests. National preclude goal is to the nomination Georgia’s 656, 665-66, ployees v. Von drugs addicted to then it or election 1390-91, L.Ed.2d advise, simply require, must rather than (1989) Railway Labor Ex- (citing Skinner v. testing. prospective candidates submit Ass’n, ecutives’ suggested a less restric- Appellants have not (1989)). I I 1413-14 dissent because do not Georgia accomplish way tive stated suspicionless believe that the search objective keeping drug users of officе. out any special governmen- circumstances serves Therefore, impact we conclude that whatever law beyond tal need the normal need for speech does not statute has and, did, enforcement, if I it believe that the Amendment. violate the First outweigh candidates’ interests when the factors V. *7 properly Von Raab are considered. party appeal in No contends this privacy is drug that in this case for Before candidates’ expectations government’s controversy against the inter normal law enforcement. The is drug-screen conducting suspicionless Georgia’s rights special and the need ests about step ing, a the court must first whether it has to take to deter ascertain believes presents special governmental filling important case drug illicit users from this light beyond the normal need for law enf Especially in of federalism need offices. terms, Amendment, simpler In before the Tenth we are cautious orcement.1 publishes they given legisla- By way, Georgia we of trae no think lack 5. almost offi- — And, accept right legislative history. history we do to cial not an not do so. tive available—were summary post-enact- journal's academic law of a (not telephone under ment oath) interview conducted qualifying 6. are that run for the We aware to (even single legislator one of the with pertinent public only is a few months offices bill) sponsors competent legislative as of histo- away. recognize plaintiff-appel- We that also See, ry. e.g., v. Connecticut General Blanchette likely will decision. For lants seek review our 335, 353, Corp., 419 U.S. Ins. reason, expeditious in we have tried to be that announcing (1974) (rejecting of "subse- L.Ed.2d 320 use speed the decision. Because seems history" quent legislative "[P]ost-pas- because perhaps important, all we we have not said that legislators, explicit, sage however remarks of history; especially we about but think could— have change legislative serve to intent.... cannot point enough general said to indicate our represent only personal Such statements view. legislators.”). these Nor do we—on the views of “history”- accept Georgia’s basis of such that — "[s]pecial this involved” in Whether needs chiefly symbolic, drug testing merely law is or by how test results is determined not urine may case although symbolic that which is still have candidate, brief, particular against any but be used great significance. plaintiff-appel- will In their summaries; already is “need” for such to such review whether the lants cited no law free,” “honest[], competing “drug can court balance holders ease, ], imprac- clear-sighted[ clear-thinking,” this it must first ask what is so as well requiring a warrant or individual- “appreciative perils drug tical about use” presented suspicion in jsympathetic ized the circumstances “[ interdiction ef inquiry It I here. is in this threshold Putting forts.” aside First Amendment con majority believe the first errs. subjective traits, cerns these as whether be, legislated as desirable as can be majority analysis in The frames its terms office, qualifications public as valid for this “unlawful funda whether is only why not standard fails to ordi address mentally incompatible high with state office.” nary enforcement law methods are insuffi Certainly, question the answer to that is interests, protect cient to but it makes obvious, patently question but the assumes suspicionless obtaining searches the rule and unlawful use.2 This case is not about always a warrant almost irrelevant.4 More incompatibility use and elected over, seriously this rationale erodes the office, but rather about whether Fourth protections many Fourth Amendment’s protections can be constitution beyond parties involved here. ally suspended when there is no individual suspicion, ized when there is no or immediate rejected The Court has an such public safety, direct threat when those assessing overbroad standard the reason- being directly searched are involved governmental drug-test- ableness of various interdiction, frontlines when ing schemes. Skinner and setting there no institutional involved such suspended protec- Fourth Amendment prison public requiring as a school swift drug impairment tions when the risks discipline, and informal and when there are directly on affected those frontline consequences waiting dire as a result efforts, who, drug interdiction or those if candidate, anyone obtain warrant if a drugs, under the pose influence could an matter, violating else is suspected public. imminent to the threat The question the law. first for the court Court found a nexus between the risks of great not whether the state’s interest use and imminent hazards to enough and its chosen effective method safety, example, government where em- enough outweigh interests in ployees “discharge fraught duties with such Rather, whether, it is volved. under Von injury risks of others even a momen- give the circumstances in this rise case tary lapse of attention can have disastrous beyond special governmental need Skinner, consequences.” ordinary needs law enforcement 1419. The Court held that rail- not, place. first majority’s I think and the way safety special governmental is a need analysis support does conclusion beyond thе normal need for law enforcement *8 contrary.3 justifies suspicionless and urine Essentially, justification employees majority’s those whose and alcohol loss,” suspending requirements great of the Fourth abuse can “cause human but in regulations “narrowly Amendment is the state’s interest office noted that enforcement, by ordinary regulate served law and is of the Tenth Amendment to its electoral "special” notes, such as to process nature render the Fourth majority is not absolute. As the impractica- requirement Amendment’s warrant power subject the state’s to do so is to federal ble. limitations, constitutional the extent of which are at issue here. public 2. O.C.G.A. 21-2-140 bars from either candidates who refuse take the test standard, 4.Under this what Fourth Amendment ideologically opposed because to the protections prevent would candidates retain to government's upon privacy, intrusion their or suspicionless testing to research or thereby only candidates fail test who and are AIDS, impairment, prescrip- mental alcohol or suspected having committed crime. abuse, genetic screening tion DNAfor infor- mation, prevent 3. or to majority’s The warrantless invasions of reference to Tenth Amend- setting qualifications public drugs, pornography, in ment interest homes to search for or oth- point. Georgia’s power office misses the under er contraband? majority than the accords the candi- to the aftermath tions limited specifically” in dates this ease. sus- accident when individualized of a serious impracticable,” or when em- picion is “most nothing special There is so or immediate directly involved in ployees otherwise governmental generalized about Id. safety-rules at violations. suspension involved here as to warrant Moreover, 1416,1420-21. the Court at S.Ct. requirement of Fourth Amendment’s individ- showing testing only after upheld suspicion for searches and seizures. ualized history linking drug alcohol abuse past exigent circumstances. There There are no 606-08, Id. at train accidents. with serious grave physical is no imminent threat of at 1407-08. S.Ct. prospective harm. The candidates are And, on the frontlines of interdiction. Raab, required likewise In Von Court subject- ignore cannot that candidates are upholding suspicionless urine nexus in such a screening program ed to ultimate —the employees who are in- testing of Customs Thus, of the electorate. I believe the voice laws, enforcing drug in or are directly volved concluding majority special in that a errs Raab, carry required to firearms. Von beyond the normal need need 670-71, at 1393. While U.S. at case. present of law enforcement in this compelling the Customs Ser- found Court “ensuring that front-line interest being major- vice’s In addition to troubled fit, physically personnel are interdiction ity’s assumption special governmental that a judgment,” unimpeachable integrity and have beyond the normal need for law en- need compel- explаined how that specifically it also obtaining a which makes forcement exists undermined unlaw- ling case, interest would I impractical this am trou- warrant among personnel: front-line drug use such ful majority’s assessment and bal- bled to the “A user’s indifference Service’s ancing competing of the interests involved. or, worse, mission, com- his active basic even presents a more serious constitu- This ease malefactors, impor- can facilitate plicity with question than that Von Raab and tional drug shipments or block tation of sizable magni- of the nature and Skinner because dangerous criminals.” Von apprehension of individual involved. tude Raab, privacy Even if interests are viewed recognized should The Court “the sense, legitimate ex- narrowest a candidate’s employees risk that bear pectation privacy bodily fluids his or her judg- impaired perception suffer Raab greater employees than the in Von positions promoted where ment will be inter- Skinner. they may employ deadly Id. need force.” employees in the Court ests added). (emphasis at 1393 already officers recognized that Customs screening undergo agree intrusive exceptions focus of these was
The narrow
pri-
employment: “Unlike most
condition of
reaffirmed in Vernonia School District 47J
—
employees in
Acton,
-,
government
132 vate citizens
(1995).
interdic-
general, employees involved
held that
L.Ed.2d 564
inqui-
reasonably
expect
justify randomly
should
effective
special governmental needs
tion
probity.” Von
schoolchildren,
ry into their fitness and
who hold
testing the urine
*9
(emphasis
at 1394
expectation
privacy in the
a diminished
of
added).
necessity in
the
setting,
that
The Court likened
public
custodial
but noted
school
“extraordinary
to
as-
pro
circumstances
sight
not
of that this
those
“it must
be lost
probity” and
narrowly
drug
use
surances of trustworthiness
gram is
more
to
directed
athletes,
inquiries
physical
fitness”
into
by
risk
immedi
“intrusive
school
where the
of
“special po-
required of
who undertake
or those
those
ate
harm to
user
military
intelligence
as in our
playing
sport
particu
sitions” such
his
is
with whom he
—
-,
In
Acton,
1553 enough trump the constitu not tures are of the Fourth Amendment imperatives
tional government. participate right
or the COMPANY, N.A., na
AMERITRUST association, banking Plaintiff-
tional Ap Defendant-Appellant, Cross
Counter
pellee,
v. WHITE, Defendant-Counterclaim-
C.K. Appellant.
ant-Appellee, Cross
No. 94-8370. Appeals,
United Court of States Circuit.
Eleventh 6,
Feb.
Act,
21-2-140,
Screening
Georgia
Drug
precipitated
As-
which
General
cant
O.C.G.A.
suspicionless testing
political
can
sembly
appear
mandate for
to motivated
con-
did not
didates, was struck down later as an unconstitu
politicians
that state
exercise their "best
cerns
infringement
employment applicants’
skill,”
tional
judgment
rather
the desire to
but
rights.
Fourth and Fourteenth Amendment
symbolic
enact a
measure:
Harris,
F.Supp.
v.
Educators
749
Ass’n of
sponsor’s
original
“One of the
1110,
(N.D.Ga.1990) (holding generalized
legislation
proposed
legislation out of a
...
maintaining drug-free
interest in
genuine
any
sense of fairness rather than
fear
sufficiently compelling
workplace
so
politicians
free. The
that state
were
outweigh applicants'
rights).
Fourth
ci1y
legislation
sponsor of
felt that if
the 1990
note, Representative
com
Holmes’
On final
politicians require
council or state
“changfing]
legisla
incapable
ments are
undergo
employees,
too should
of state
expressed
pas
before the Act's
tive intent
ap-
Additionally,
testing.
if in order to
sage,”
General
as in Blanchette
Connecticut
illegal
pease public concern
the use of
132,
335,
about
102,
Corp., 419 U.S.
Insurance
infringe
drugs politicians
upon
must
because,
(1974)
as the ma