Politics

How Georgia's Outlandish Ballot Access Law Is Protecting Marjorie Taylor Greene (and the Two-Party System)

A ballot access law meant to block Communists has become an obstacle to third-party politics. 

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"You're running against MTG? I would be so happy to sign this!"

Sometimes, all Angela Pence has to do to get some attention is mention the name of Rep. Marjorie Taylor Greene (R–Ga.), the first-term congresswoman and conservative firebrand who's made a name for herself by trafficking in conspiracy theories. This is Greene's district, but it's not her crowd. 

We're at a Pride event in the small city of Rome, Georgia, the largest population center in the state's sparse northwest corner, and Pence is trying to collect some of the roughly 23,000 signatures that she'll need to qualify for the ballot. So, technically, she's not running against Greene just yet, but she's trying to.

The exuberant petition-signer is Janet Gabler-Bearoff, a Pennsylvania transplant who now owns The Frisky Biscuit, a sex shop and personal wellness center in Rome. She's incensed about the recent Supreme Court ruling that overturned Roe v. Wade, announced just the day before the Pride event, and Pence shares the frustration. "We're going in reverse," the prospective candidate says, nodding along as Gabler-Bearoff fills out the form that might help get Pence on the Georgia ballot in November. "Prohibition isn't going to fix anything; it never has."

Pence says she's "an anarchist at heart." America needs more immigration and a government that's less eager to control individuals' decisions, she says, whether that's a question about who to employ or who to marry. Her politics were activated by the Republican Party's turn towards authoritarianism in recent years—like many Americans, she couldn't bring herself to choose between Donald Trump and Hillary Clinton in 2016—and she's no longer willing to believe conservatives who use the lingo of limited government while pushing for a more powerful state. She sees that tendency in her own representative in Congress. 

"The people [in northwest Georgia] want a message of individual freedom and they want a smaller government. But if they don't have the choice to pick me, they'll vote for someone who is speaking to the message of liberty but at the end of the day isn't truly for individual freedom," Pence says of Greene.

Before Pence can get a fair shot at challenging Greene, she has to overcome America's toughest ballot access law—with a petition threshold that no independent or third-party candidate has successfully surpassed since the 1960s. To qualify, she has to collect more than 23,000 signatures from residents of her congressional district. 

It's a law that was originally passed to keep out candidates believed to be advocating for overthrowing the American government. Ironically, that law is now protecting Greene, one of Congress' loudest cheerleaders for former President Donald Trump's attempt at subverting the results of the 2020 election.

So far, courts have upheld the high barrier to entry in Georgia's congressional races on the grounds that it keeps out unserious candidates and avoids confusing votes. A case challenging the threshold could be headed to the Supreme Court later this year, but not soon enough to help Pence. 

But if Pence isn't a serious candidate, it might be fair to wonder how to categorize Greene, who has claimed 9/11 was a hoax, that John F. Kennedy Jr. was murdered by Hillary Clinton, and that COVID-19 lockdowns are comparable to the Holocaust, among other things. But Greene has one thing Pence doesn't: the nomination of one of the two major parties.

Pence's campaign is likely doomed anyway—Georgia's 14th congressional district is one of the safest Republican seats in the entire country. But it's one thing to lose because voters preferred someone else. It's quite another to lose because the supposedly neutral arbiter, the state government, says you can't even try.

The deadline for Pence to submit those signatures arrived Tuesday.

Banning the Communist Party 

If Pence could jump back in time exactly 100 years, she'd find a much different set of rules governing who could appear on the ballot in Georgia.

The state's first ballot access law was passed in 1922, according to political historian Darcy G. Richardson, and it ensured that independent candidates, as well as the nominees of any political party, were entitled to a place on the ballot without having to pay any filing fees or submit petitions.

Of course, Georgia in 1922 was not a beacon of democratic enlightenment for a variety of reasons. Women had only been given the right to vote two years earlier. Black people and other racial minorities were subject to near-total disenfranchisement. A permissive ballot access regime existed, perhaps, because a combination of strict social norms and other official policies effectively kept out anyone who might challenge the political status quo.

And when a new political party did challenge that system, it was quickly met with some sharp elbows.

In 1940, when the Communist Party of the United States sought to place its candidates for office on Georgia's ballot, Secretary of State John B. Wilson intervened. He unilaterally barred Earl Browder, the party's presidential nominee, and all other Communist candidates from the ballot. "It would be against public policy to place on our ballot the names of candidates of a party which seeks to overthrow our democratic constitutional form of government," Wilson said, according to an Associated Press report from August of that year.

An Associated Press report published by the Austin American Stateman on August 20, 1940.

The outcome of the 1940 presidential election in Georgia was never in any serious doubt. President Franklin Delano Roosevelt won the state's 12 electoral votes by getting more than 84 percent of the popular vote—a tally that was actually slightly worse than the percentages he'd received in 1932 and 1936. Nationally, Roosevelt easily defeated Wendell Willkie to win an unprecedented third term.

What happened in Georgia in 1940 was not an isolated incident. Several other states similarly barred Browder and other Communist candidates from seeking office. That followed close on the heels of federal action like the 1939 passage of the Hatch Act, which forbade the hiring of public employees who advocated for overthrowing the government, and the establishment of the House Un-American Activities Committee, which would play a prominent role in America's "Red Scare" era.

After the election, Wilson asked the Georgia legislature to pass a law granting his office the authority to determine which candidates and parties could qualify for the ballot. Instead, three years later, the state legislature adopted a new set of ballot access rules. 

Now, candidates for any political party that received at least 5 percent of the vote in the last election would be automatically included on the ballot without petitions or filing fees. Anyone else would have to collect signatures from at least 5 percent of the registered voters in the territory for which they were seeking office—for a congressional candidate, that means all the signatures must come from voters in their district.

The new rules were undoubtedly an improvement over a system where everyone was nominally allowed to participate but the secretary of state held the power to unilaterally bar certain parties. But, for Richardson, the motivation behind the 5 percent signature threshold is clear.

"One of the purposes, if not the primary purpose, of Georgia's 5-percent petition requirement was to discriminate against the Communist Party," Richardson testified to a federal court as part of a 2017 lawsuit attempting to overturn Georgia's ballot access requirements. He pointed to a 1943 Atlanta Constitution article that drew an explicit connection between Wilson's anti-commie crusade and the new law. "No other justification for the petition requirement is apparent in the historical record," he told the court.

An excerpt from the Atlanta Constitution: Feb. 18, 1943

In the decades since it was originally created, the barriers created by the law have only gotten higher. Candidates originally had until 30 days before the general election to collect and submit signatures, for example. The deadline is now mid-July. The signatures must be notarized. Candidates must pay a $5,000 filing fee in March, which is not refunded if they don't get enough signatures to qualify. 

The thresholds are so high that no independent or third-party candidate has appeared on the ballot in a Georgia congressional race since 1964, with one exception in 1982. That year, the rules were temporarily suspended because district lines in the Atlanta area had to be redrawn by court order shortly before the election. 

Every other state in the country has had at least one independent or third-party candidate qualify for the ballot in the past six years, according to Richard Winger, the editor of Ballot Access News who has been tracking developments in this niche political space for decades. In Georgia, you have to go back nearly six decades.

"There has never been any state that made ballot access totally impossible for such a long period of time for a single office," Winger tells Reason. "It is unlike anything else you'll find in the whole country."

The High Cost of a Third-Party Campaign 

Pence doesn't campaign like someone whose chances of even qualifying for the ballot are on the low side of slim-to-none.

When I caught up with her on June 25 at the Pride parade in Rome, she was gleefully embracing the underdog role. "We're here to fuck up the system," she tells one attendee who was thrilled to sign a petition for a candidate challenging Greene. But there's no hint of a snarl in Pence's manner as she makes her pitch to everyone from a local drag queen in full regalia to a pastor protesting the event.

Angela Pence, left, shares a laugh with India Mills, the head of a local drag troupe in Rome, Georgia.

Pence exudes the boundless optimism of someone relatively new to politics—she's never run for office before and didn't think much about politics until the 2016 presidential election. By 2020, she was helping organize and plan events all across the South for Libertarian presidential contender Jo Jorgensen. 

Other ventures have been far more successful. Pence is a mother of eight children—"If I can deal with eight kids, I can deal with Congress," she quips—with a ninth due in January, a detail that throws her robust campaigning into a whole new level of impressive. She's also a certified doula who has helped several other women through the birthing process. And she owns an apothecary shop in her hometown of Chickamauga. The tattoo on her right arm—a pair of pointe shoes with the words "fighters keep fighting" intertwined in the ribbons—is a reminder of an earlier career as a professional dancer and the grit that career path, like this one, required. 

But this is a fight Pence isn't going to win. The deck is almost comically stacked against her. In addition to the legal hurdles created by Georgia's ballot access law, there's another complication: The state's redistricting process ran longer than usual in Georgia last year. A judge didn't give the official go-ahead for the congressional map drawn by state lawmakers until February 28. As a result, the signature-gathering period, which ended on July 12, was shorter than usual.

And because some of the lines shifted around, some of the people Pence is asking to sign her petition don't know which district they live in (if they ever did).

That makes the toughest ballot access law in the country an even higher barrier.

Even if a candidate (and volunteers) can get 10 signatures per hour, getting to 23,000 would take more than 2,300 hours of work. "Then, the elections office is going to tell you roughly half of them are not valid signatures, so you really need 46,000 signatures—which takes 4,600 hours," says Ryan Graham, a former chairman of the Libertarian Party of Georgia. "If you wanted to pay professional petitioners to do it, it would cost roughly $3 per signature and total around $138,000. And that's just to get on the ballot before you even get to focus on campaigning."

At the Pride festival in Rome, I see the struggle of gathering signatures up close. It's a process. One of the volunteers helping Pence is carting around a series of clipboards—different ones for different counties. Pence approaches someone and makes her pitch. The would-be signee has to provide their name, in print and cursive, then an address and phone number. Failing to get any of those details right—or if they can't be verified later by the bureaucrats who will process the signatures after the July 13 deadline—means the effort is wasted.

After several humid hours in Rome, Pence has a dozen or so signatures added to her tally. Coming to an event like this is important, in Pence's view, because Democrats aren't going to win in Greene's district—a district Trump won by more than 50 points last year despite narrowly losing the state as a whole. There is one trying: Marcus Flowers, a 46-year-old army veteran has raised millions of dollars and attracted widespread media attention for his quixotic and unorthodox campaign against Greene.

A Libertarian might not have much of a shot, either, but the party can present a different sort of ideological competition. Even, perhaps, a true vision of small government and tolerance for differing views, Pence says.

On Tuesday, Pence and her cadre of volunteers officially hit the end of the road. They gathered about 5,000 signatures before it was done, but didn't bother submitting the pile of paperwork since it was nowhere near enough to make the cut. 

But it very nearly could have been. 

An Unconstitutional Burden

A year ago, it looked like Georgia's ballot access law was headed to the junkyard.

"Even reasonably diligent political-body candidates who have expended considerable time and resources have failed to access Georgia's ballot," concluded federal Judge Leigh Martin May in a March 2021 order that invalidated the state's 5 percent ballot access threshold for being overly broad and unconstitutional. That ruling was a huge victory for the Georgia Libertarian Party, which had launched the federal lawsuit in 2017. Legal documents detailed no fewer than 27 different third-party congressional campaigns that had tried to qualify for the ballot since 1982. All had failed.

An even bigger win followed in September. After asking the state to submit alternative ballot-access rules, May ruled that the 5 percent threshold should be lowered to 1 percent—the same threshold that is applied to prospective statewide candidates. Practically, that meant that congressional candidates would have to gather between 4,600 and 6,500 signatures (depending on the number of voters in the district) to qualify for the ballot, The Atlanta Journal-Constitution reported.

"This remedy would alleviate the unconstitutional burden imposed upon plaintiffs, while safeguarding the state's interest in preventing ballot crowding and frivolous candidates," May wrote in the second ruling.

If that were the final say in the matter, Pence obviously would have had a clearer path to a place on the ballot this year.

But the state appealed Cowen v. Raffensperger to the 11th Circuit, which in January reversed May's ruling and left the 5 percent requirement in place. The ballot access requirement, wrote Judge Britt Grant for a three-judge panel that heard the case, aids the state's interest in avoiding "confusion, deception, and even frustration of the democratic process."

Try telling that to anyone who has to navigate it.

"You can quote me on this: That's complete bullshit," Pence says of the court's rationale. How can it be confusing voters when most people don't know the contours of the state's ballot access laws, she wonders. "It's obvious what it really is; it's a way to keep us off the ballot."

The case could be on its way to the U.S. Supreme Court. Plaintiffs have until July 29 to file a certiorari petition with the high court, Ballot Access News reported in May. Angela McArdle, newly elected chair of the Libertarian National Committee, tweeted on Tuesday night that the party is preparing an amicus brief in the case—a good indication that a petition to the Supreme Court is coming.

Ballot access laws that treat independent and third-party candidates differently always raise questions about fairness. Why should one party be treated differently than another in the eyes of the state?

But leave aside the question of fairness for a moment. If Georgia's ballot access scheme is constitutional, as the federal appeals court has said, then it would be equally constitutional to replicate it in every other state. And if that were to happen, then it's possible that no third-party or independent candidates would ever qualify for the ballot again. Isn't that a detail that should be part of any court's analysis of how this law operates?

Winger breaks down the math. If Georgia's ballot access law were replicated across the entire country, a third party that wanted to run a candidate in every statewide race (to say nothing of congressional races) would have to gather more than 10 million signatures. With the laws as they currently stand, that figure is a less extreme (though still outlandishly large) tally of about 541,000.

If a presidential candidate had to collect more than 10 million signatures to get on the ballot, everyone would rightfully recognize that as an insane and anticompetitive barrier. Well, an equivalent barrier that's been set in front of Angela Pence—and anyone else seeking to run for office in Georgia outside the two-party duopoly.

And don't expect relief to come from the regular lawmaking process. "The state legislature does not seem too interested in making it easier [to qualify for the ballot]," says Charles Bullock, a professor of politics at the University of Georgia.

Bullock explains that the law is more than a bit self-serving, especially in light of Georgia's rules that require candidates to get at least 50 percent of the vote to win an election—if no one does in a general election, there's a runoff between the top two candidates. From the perspective of the Democrats and Republicans in the Georgia state legislature or in Congress, then, allowing more third-party and independent candidates on the ballot would only increase the chances of requiring a run-off. And who wants to deal with that annoyance?

But a proper democratic system shouldn't prioritize the interests of two political parties at the expense of competing ideas. It shouldn't exist for the purposes of making elections as neat and tidy as possible. The goal is to translate the will of the people into an elected body of representatives—and outlandish barriers to ballot access stand in the way of that goal.

The people of northwest Georgia might very well choose to keep Greene in Congress no matter who runs against her. In all likelihood, they will. The district is rated R+27 by the Cook Political Report, making it the second-most Republican district in the state (surpassed only by the neighboring 9th district) and among the safest Republican seats in the whole country.

But Georgia's ballot access laws, ostensibly created in the name of protecting American democracy from those who would subvert it, have accomplished the opposite. They are an incumbency protection scheme meant to limit the field of acceptable candidates. As lawmakers in Washington, D.C., and Atlanta take stock of how election laws need changing to protect the country's foundational principles, laws like this must be part of that conversation.

Having failed to qualify for the ballot, Pence is mulling a write-in campaign in the fall. After all, there's still a chance that Greene could be tossed off the ballot or otherwise disqualified from office for her role in the January 6 riots, Pence reasons. (Some of Taylor Green's constituents unsuccessfully sought to have the congresswoman barred from running for office over her alleged involvement in the January 6 riot at the U.S. Capitol.)

If that happens the race comes down to Pence vs. Flowers….hey, stranger things have happened in American political history.

For now, though, she's satisfied with this first step into politics.

"I don't see this as a failure. It was always such a long shot," she told me on Tuesday. "I got to talk to hundreds, thousands of people about what a third-party candidate has to do to run for office here. It means something to get that message out."