This morning, the Supreme Court released its order list indicating which cases it will and will not be taking up in the new term. Notably, the Court declined to address Georgia laws that have kept third-party candidates off election ballots in the state for decades.
Candidates for federal elected office in Georgia face different hurdles depending on which party they belong to. Republicans and Democrats get on the ballot automatically, since each party received at least 20 percent of the vote in previous elections. But for any third-party candidate running for a districted position, like in the House of Representatives, they must first collect signatures from 5 percent of all registered voters in their district—between 20,000 and 27,000. That task has proved so daunting that no third-party House candidate from Georgia has achieved it in nearly six decades.
Cowen v. Raffensperger sought to overturn that discrepancy. Filed on behalf of the Libertarian Party (L.P.) of Georgia and several of its current and former candidates against Georgia's secretary of state, the lawsuit challenged the 5 percent requirement on First and Fourteenth Amendment grounds, saying it placed an undue burden on potential candidates.
In January, the 11th Circuit Court of Appeals upheld the law, stating that while the L.P. "offers evidence to show that collecting petition signatures is costly and difficult," it nonetheless "has not shown that the endeavor is significantly more challenging than it was 50 years ago."
Today, the Supreme Court included Cowen on the list of cases it was declining to hear, effectively leaving the 11th Circuit decision in place.
In a statement to Reason, Martin Cowen, one of the plaintiffs, contends that the suit was filed on the basis of a previous case, Green Party of Ga. v. Kemp (2016), in which the District Court of the Northern District of Georgia established a requirement of 7,500 signatures statewide for presidential candidates, meaning that the Green Party of Georgia only had to get that many signatures statewide in order for one of its members to run for president. That decision was later affirmed by the 11th Circuit.
"I am shocked," Cowen says, "that the current signature requirement for a [House] candidate…has been sustained by SCOTUS. It was and is obvious to me that the impossible [hurdle] to obtain ballot access for congressional races in Georgia is unconstitutional. This result is an outrage."
Indeed, requiring 7,500 signatures statewide is much more reasonable than requiring 27,000 in a single Congressional district. As a result, while Georgia produces no third-party candidates for the U.S. House, Libertarians routinely run for Senate and governor.
"The members of the current US Supreme Court (except perhaps Justice Ketanji Brown Jackson) have signaled that they do not wish to extend the protection of the First and Fourteenth Amendments to voters who wish to vote for minor party and independent candidates," Richard Winger, editor of Ballot Access News, tells Reason. "This is clear, not only from their action today, but from their action over the last 30 years. They have denied cert to every appeal from any independent or minor party plaintiff, starting in 1992… The recent Georgia case is their worst refusal yet, though. The 11th circuit decision in Cowen v. Raffensperger contradicts every US Supreme Court ballot access decision ever issued, whether favorable or unfavorable."
Unless members of Georgia's Legislature take it upon themselves to change the law, third-party House candidates will still face an uphill battle to get on the ballot.