Libertarian Party of Georgia Loses Ballot Access Lawsuit

The state of Georgia can treat minor party candidates much more severely than Democrats and Republicans in terms of ballot access. This was affirmed by a panel of three judges of the 11th Circuit Court of Appeals.

If the following applies to you: Cowen v. RaffenspergerGeorgia L.P. challenged the requirement that 5 per cent of voters registered in their district must sign a petition to have U.S. House Candidates on the Ballot. This was required if the party did not receive 20 percent of votes for president or governor during the last election. The number of signatures can vary by district but the Georgia L.P., along with other ballot access monitors, find it to hover around 20,000-25,000 signatures.

Georgia makes it easier for candidates to be elected as senators, presidents, or statewide representatives. By winning votes from just 1% of the eligible registered voters of a prior statewide race, Georgia L.P. fulfilled these criteria. The party suit challenged the distinction between its own candidates for statewide vs. non-statewide office on equal protection grounds as well, which the 11th Circuit also found unconvincing since it already decided the distinction—the signature collection—was not a severe burden.

After the case was heard by the 11th Circuit, it was referred back to the U.S. District Court. The panel reviewed the matter and “permanently prohibited the Secretary” from applying the 5% signature requirement to independent and third-party candidates for non-statewide offices. The district court instead imposed an interim measure of 1%, to be in effect until the legislature adopted a permanent solution.

A 1971 Supreme Court decision, Jenness V. FortsonAlthough he had upheld Georgia’s voter access laws, there had been some changes in the law and other facts that could have prompted a change. This week, the 11th Circuit ruled that “some modifications to Georgia’s election-access laws occurred over the past 50 years.” Jenness. The evidence record that details the difficulties in gathering signatures for petitions could be stronger here than it was back then. To distinguish claims satisfactorily, it is necessary to not accept any differences from Jenness will do—the difference must be material enough to transform Georgia’s ballot-access system from one that ‘in no way freezes the status quo’ to one that does…..The Libertarian Party has not identified such a difference.”

In a Judge Britt Grant-written decision, this panel reversed the District Court’s rejection of the 5 per cent requirement. It also upheld the ballot accessibility law. Though the Court admits the L.P. “offers evidence to show that collecting petition signatures is costly and difficult….the Libertarian Party has not shown that the endeavor is significantly more challenging than it was 50 years ago.” According to it, the petition requirement is essential for the state’s interests in avoiding confusion, deception, frustration, and any other negative effects of democracy.

Richard Winger is America’s foremost expert on ballot access laws, and the editor of Ballot Access NewsAccording to this statement, “frustration” stemmed from the fact that a Supreme Court Justice in an earlier ballot accessibility case considered the very act of stopping a major-party candidate winning as the type of “frustration,” restrictive ballot access laws are intended to avoid.

Does the 5 percent requirement truly not “freeze…a status quo?” This requirement has existed in Georgia since 1943. Although at least twenty attempts have been made to comply with it, none of the parties has actually met it. An independent candidate attempted in Georgia in 1964 when “the signatures weren’t checked.”

Ballot access remains a problem for both the Libertarian Party as well as third-party and independent candidates. It is difficult to make a general statement regarding the access requirements due to the sheer number of requirements that each state has for different offices. That’s why it is so hard for the Libertarian Party and other third party and independent candidates not only to understand but also comply with the various requirements.

Tyler Harris is the national director for the L.P. He stated that this year’s total expenditures on various ballot access initiatives will exceed $200,000 and it would be a strain to morale, stress, as well as money.

Ryan Graham of Georgia L.P. said in a phone interview that this makes it difficult for competent and engaged candidates to consider running to the House when they realize they have to comply with a petition requirement.

The L.P. has three strategies to overcome these policies, as both Harris and Graham explained: one is just digging down and trying to meet them—gathering the signatures, making sure the right name from the right district goes on the right sheet, knocking on doors, lurking outside the Kroger’s, or, in some cases the statutorily required 100 feet or so from actual polling places, to find voters or citizens who meet the various requirements to sign on the dotted line.

Also, ensure they have their correct addresses and are in the right districts. Make sure that all the information on the voter rolls matches what they provided to the petitioner. The process is complicated, time-consuming, expensive, and often results in one signature being removed for various administrative errors.

The legislature can also be used to change the law. Although they have in the past tried to get bipartisan groups of Georgia legislators to draft legislation to loosen the requirements, these bills don’t make it out of the committee. Graham claims that they were told backchannelly that they are unlikely to ever do so.

They tried the third option in Georgia but have failed to succeed at it: sue. These suits do not always succeed. In fact, several restrictions on ballot access in Maine were successfully overturned by an L.P. lawsuit earlier in the year. Baines v. Bellows.)

Winger summarised his frustrations with Georgia’s decision at this week’s Georgia Conference. Ballot Access NewsThe Georgia law, which is Constitutional, would mean that all other states could have a comparable law. If every state had the same law as Georgia, then there would be an absolute monopoly on Democratic and Republican candidates for the U.S. House for nearly 60 years.

Winger points out that William Pryor (one of three judges) has heard many cases relating to ballot access and not voted against any such law. Winger notes similarly that, while the Supreme Court can sometimes take on a matter concerning ballot access if a state is appealing a loss it has not shown any interest in hearing an appeal in recent years in cases where someone who was harmed due to ballot access laws are trying to change them.

Nevertheless, Anderson v. CelebrezzeAn earlier Supreme Court cohort in 1983 overturned an Ohio presidential candidate filing deadline. It declared that the First Amendment’s primary values are best served when elections aren’t dominated by existing political parties. This is an approach the Court should rediscover.

Graham, Georgia L.P. chair, stated in an email that although no decision has been made about the next steps between the party’s legal team and the party, there are “multiple options” available and the plan to continue fighting this case.