11th Circuit Court of Appeals Upholds Georgia Law Mandating Drug Tests for Political Candidates

IN THE COURTS March 1996

The U.S. Court of Appeals for the Eleventh Circuit ruled on January 22, 1996 in a 2-1 decision that a Georgia law requiring all political candidates to be drug tested is constitutional (Chandler v. Miller, 75 F.3d 1543 (11th Cir. 1996)).

Walker L. Chandler, Sharon T. Harris, and James D. Walker, members of the Libertarian Party in Georgia, challenged a provision passed by the Georgia legislature in 1990 that anyone running for Governor, Lieutenant Governor, Secretary of State, Attorney General, or a number of other public offices must submit to a drug test as a condition of their candidacy. Should the candidate refuse to take a test, or test positive, that person is barred from holding office. The plaintiffs argued that the law violates the Fourth, Fourteenth, and the First Amendments.

On the Fourth Amendment issue, Georgia has the right to formulate a candidate drug testing law, Judge J.L. Edmondson wrote for the majority. The state's interest in knowing the drug use of its officials outweighs individuals' privacy rights:

... Georgia has not argued that her elected officials have in the past abused drugs, [so] the issue on [sic] Georgia's interest is whether unlawful drug use is similarly fundamentally incompatible with high state office. ... We think that to ask this question is also to answer it. The people of Georgia place in the trust of their elected officials that which people value most highly: their liberty, their safety, their economic well-being, ultimate responsibility for law enforcement, and so on ... [T]hose vested with the highest executive authority to make public policy in general and frequently to supervise Georgia's drug interdiction efforts in particular must be persons appreciative of the perils of drug use. ... The nature of high public office in itself demands the highest levels of honesty, clear-sightedness, and clear-thinking. ... Simply put, the state's interest in filling these positions with drug-free people is great.

The plaintiffs also argued that the law violates the Fourteenth Amendment right of a person to run for office and the right of the public to choose elected officials. Citing the U.S. Supreme Court, Edmondson found that classes of people can be excluded from candidacy (e.g., candidates for the state judiciary over seventy years of age, Gregory v. Ashcroft, 501 U.S. 452 (1991)). Georgia's drug testing law was intended to guard against incompetent people taking office. "Considering the importance of the mental, emotional, and physical health of high public officials, we cannot conclude that the Georgia legislature acted irrationally. ... Georgia candidates are only barred so long as they cannot (or will not) demonstrate that they are drug-free."

In evaluating the First Amendment violation claims, the Court applied a four-step test outlined in United States v. O'Brien, 391 U.S. 367 (1968). The Court found that it is within Georgia's power to make laws regarding public officials, and the law in this case furthers the "substantial government interest" as they argued in relation to the Fourth Amendment challenge. Third, the court found that the purpose of the law was not to stifle free expression, but to safeguard the people of Georgia against incompetent leadership. Finally, the court found that any restrictions on freedom of speech were not overly restrictive in relation to the interest of the government.

Judge Rosemary Barkett, in a dissenting opinion, wrote that drug testing of candidates does not further some compelling government interest, and that protection of the privacy of the candidates does outweigh the interest of the government. Barkett wrote that the majority misunderstood the issues in evaluating the government's need to test candidates. The issue is not whether drug use is compatible with high public office. "Certainly, the answer to that question is patently obvious, but the question assumes unlawful drug use" when there are no indicators of use or special circumstances.

Barkett also took issue with what she characterizes as an effort to prescribe the necessary characteristics of public officials as, in the words of the majority, "drug-free," "honest," "clear-sighted," and "appreciative of the perils of drug use." "Putting aside First Amendment concerns as to whether these subjective traits, as desirable as they may be, can be legislated as valid qualifications for public office, this standard not only fails to address why ordinary law enforcement methods are insufficient to protect these interests, but it makes suspicionless searches the rule and obtaining a warrant almost always irrelevant," she wrote. Barkett also warned that the majority's decision "erodes the Fourth Amendment's protections for many people beyond the parties involved here."

Barkett also found that drug testing is an unnecessary condition on running for public office, in violation of the Fourteenth Amendment. Drug tests might be necessary and permissible for gaining employment in other professions, but the Constitution protects the ability to participate in government by seeking public office. "We are not dealing merely with the denial of a job opportunity, but with the denial of opportunity to participate in our democratic form of government," she wrote.

She also found that the majority describing necessary candidate qualities as "appreciative of the perils of drug use" and "sympathetic to drug interdiction efforts" is a signal that the drug testing law is more of a "symbolic gesture" meant to ensure that public officials have a certain view of drug policy. "By conditioning holding public office upon submission to drug screening, ... the Georgia legislature effectively bans from positions of political power not only those candidates who might disagree with the current policy of criminalizing drug use, but also those who challenge the intrusive governmental means to detect such use among its citizenry," she wrote. "This statute is neither neutral nor procedural, but, in the majority's own characterization, attempts to ensure that only candidates with a certain point of view qualify for public office."

[The opinions can be found at http://www.law.emory.edu/11circuit/jan96/95-8230.man.html. If you do not have access to the Internet, contact the NewsBriefs office for a copy.]