It's perfectly constitutional for the state of Georgia to treat non-major party candidates far more harshly than Democrats or Republicans when it comes to ballot access, a three-judge panel of the 11th Circuit Court of Appeals decided this week in the defeat of a First and 14th Amendment challenge from the Georgia Libertarian Party (L.P.).
In the case of Cowen v. Raffensperger, the Georgia L.P. was challenging a requirement that 5 percent of registered voters within a district had to sign a petition to get U.S. House candidates on the ballot if their party had not gotten 20 percent of the vote for governor or president in the last election. While that number of signatures will vary based on district, the Georgia L.P. and other ballot access watchers find it tends to float around 20,000-25,000 signatures.
Getting presidential, Senate, and other statewide candidates on the ballot in Georgia is easier. The Georgia L.P. met those criteria by winning the votes of just 1 percent of eligible registered voters in a previous statewide race. 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.
The case had been at the 11th Circuit before, earlier in 2021, and a panel then sent it back to a U.S. District Court which, on that reconsideration, "permanently enjoined the Secretary from enforcing the 5% signature requirement that applied to third-party and independent candidates for non-statewide office. In its place, the district court imposed a 1% requirement as an interim measure, which would persist until the state legislature enacted a permanent replacement."
A 1971 Supreme Court decision, Jenness v. Fortson, had, however, upheld Georgia's ballot access laws, but some newer ballot access jurisprudence and facts had arisen since then that might have mandated a different conclusion. As the 11th Circuit decision this week wrote, "some changes to Georgia's ballot-access laws have occurred in the 50 years since Jenness. And the evidentiary record detailing the practical difficulties of gathering petition signatures may be more robust here than it was in that case. But to satisfactorily distinguish the claims, not just any difference 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."
Thus, the panel this week, in a decision written by Judge Britt Grant, reversed the District Court's overturning of the 5 percent requirement and upheld the ballot access 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." It argues that the petition requirement is important to the state's interest in avoiding "confusion, deception, and even frustration of the democratic process."
Richard Winger, America's leading expert in ballot access laws and editor of Ballot Access News, says the "frustration" aspect arose from a Supreme Court justice in an earlier ballot access case who considered the very prevention of a major party candidate from winning to constitute the sort of "frustration" restrictive ballot access laws are meant to prevent.
Does the 5 percent requirement truly not "freeze…a status quo?" It has existed since 1943 and no party has ever met it in Georgia, although at least 20 attempts have been made; an independent candidate did once in 1964 at a time when, according to Winger, "the signatures weren't checked."
Ballot access is a continual problem for the Libertarian Party and other third party and independent candidates. Making any sweeping statement about the requirements for access is impossible given the dizzying array of state requirements for various offices, and that's part of the point and part of the problem: even understanding, much less complying with and successfully meeting, ballot access demands is a more than full-time job.
Tyler Harris, executive director of the national L.P, says in a phone interview that over $200,000 this year is likely to have to be expended by the national party alone toward ballot access efforts of various sorts, and in terms of morale and stress as well as cash, it's a "significant strain."
As Ryan Graham, chair of the Georgia L.P., says in a phone interview, it makes it especially hard to find competent, engaged candidates to even consider running for House when they know they face a petition requirement that has almost always proven impossible to meet.
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.
You also must make sure they get their addresses and districts right and that they are on record on the voter rolls with the same information they gave the petitioner. It's tricky stuff, costly in terms of money for pros and morale-drag on volunteers, and can often result in one signature being tossed for various bureaucratic errors for every one that counts.
A second approach is trying to get the laws changed via the legislature. While in Georgia in the past they've gotten bipartisan gangs of legislators to propose legislation loosening the requirements, such bills never get out of committee and according to Graham, they've been told via back channel it's unlikely they ever will.
The third option is the one they pursued in Georgia, and have so far failed at: suing. (Such suits don't always fail, and various ballot access restrictions in Maine were indeed successfully overturned earlier this year via an L.P. lawsuit in Baines v. Bellows.)
As Winger summed up his problems with the Georgia decision this week at Ballot Access News, "If Georgia's law is constitutional, then a similar law in all states would be constitutional. And if every state had a law like Georgia's, there would have been an absolute monopoly of Democratic and Republican candidates on the ballot for U.S. House in the entire nation for almost 60 years."
Winger notes one of the judges on the three-judge panel, William Pryor, has considered many ballot access cases and never voted to strike down any ballot access law. Winger similarly notes that while the Supreme Court will on occasion take on a ballot access case when it's a state appealing a loss, it has shown no interest in recent decades in hearing a case where someone harmed by ballot access laws is trying to overturn them.
That said, in Anderson v. Celebrezze, from 1983, an earlier Supreme Court cohort overturned an early filing requirement for a presidential candidate in Ohio, declaring that "the primary values protected by the First Amendment are served when election campaigns are not monopolized by the existing political parties," an attitude the Court ought to rediscover.
Graham, the Georgia L.P.'s chair, says in an email today that while no specific decision about a next step has been authoritatively pinned down between the party and its legal team, "there are multiple options on the table" and "the plan is to keep fighting with this case."