Georgia Presidential Ballot Access Case Stalls in Federal Court (UPDATE 1)

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(APN) ATLANTA — A lawsuit challenging the ballot access requirements in the State of Georgia for minor party and independent candidates for President of the US was dismissed, and yet the judge has yet to rule for nearly two months on a motion for reconsideration, even with November’s Presidential Election coming up in about eight weeks, Atlanta Progressive News has learned.

The Plaintiffs–the Green Party of Georgia and Constitution Party of Georgia–cannot appeal until US District Court Judge Richard Story rules on the Motion for Reconsideration, Richard Winger of Ballot Access News told APN.

“I think the judge doesn’t know what to do,” Winger said.

As previously reported by APN, the case–Green Party of Georgia and Constitution Party of Georgia v. State of Georgia and Brian Kemp, Georgia Secretary of State–challenges Georgia’s one percent statewide petition requirement for minor party and independent candidates in US Presidential Elections.

The current requirement in Georgia for statewide candidates such as US Presidential candidates is to collect petition signatures from one percent of the registered voters statewide who were registered and eligible to vote in the previous election, according to OCGA 21-2-110.

The Green Party has nominated Jill Stein as its Presidential candidate,and the Constitution Party has nominated Virgil Goode, a former US Congressman from Virginia.

The case was dismissed on July 17, 2012, and the Motion for Reconsideration was filed on July 24.

Georgia has not had a minor party or independent candidate successfully petition to get on the ballot for President of the US ballot since the year 2000, the only other US state besides Indiana to have that distinction, according to Ballot Access News.  That year, Pat Buchanan qualified in Georgia as an independent, although nationally he was running as a Reform Party candidate.

The current lawsuit argues that Georgia’s ballot access requirements for Presidential candidates are “unduly burdensome, infringe upon constitutional rights, lack a compelling interest, and are, therefore, unconstitutional.”

Federal courts have generally recognized that states’ arguments for ballot access restrictions for US Presidential candidates are less persuasive than arguments for ballot access restrictions for other types of candidates such as state-level candidates, state legislative candidates, or county commission candidates.

For example, in Anderson v. Celebrezze, in 1983 the Supreme Court of the US ruled, “Furthermore, in the context of a Presidential election, state imposed restrictions implicate a uniquely important national interest.  For the President and Vice-President of the United States are the only elected officials who represent all the voters in the Nation…”

“Plaintiffs believe that this Court, in its Order, did not address the issue presented by this case of access to the Presidential ballot, instead addressing an issue framed by the Defendants of access to state and congressional races.  The Court’s order relied mainly on three cases that are inapposite,” the Motion for Reconsideration in the present case states.

Addressing the cases the Plaintiffs argue are inapposite, the Motion states, “First, in Jenness v. Fortson (1971)… the presidential ballot was not in question, just the race for Governor and U.S. Congress.  Second, in Cartwright v. Barnes (2002) the sole issue was the Congressional ballot.  Third, Coffield v. Kemp (2010), involved a congressional race and not the presidential race.”

“In its Order this Court cited these inapposite cases and concluded that: ‘In each of these instances, the Courts held that the requirement under O.C.G.A. 21-2-170 for a petition containing at least 5 percent of the registered voters for certain elections was not unconstitutional.’… However, those ‘certain elections’ referred to by the cases the Court cited, did not include any presidential ballot access cases,” the Motion stated.

And in fact, the present lawsuit does not challenge the five percent petition requirement, which only applies to non-statewide elected positions; it challenges the one percent requirement, and even then, only as applied to Presidential candidates.

“In American Party of Texas v. White… (1974), the U.S. Supreme Court specifically held that requiring petitioners to gather 1% of the actual voters to gain ballot access ‘falls within the outer boundaries of support the State may require before according political parties ballot position.’ This Court fails to explain why this holding of the U.S. Supreme Court does not control here,” the Motion states.

Georgia’s ballot access requirements for Presidential candidates, which is one percent of registered voters statewide in the last election, is therefore greater than the requirement at issue in American Party of Texas v. White, which was one percent of actual voters.

Incidentally, earlier this year, a bill, HB 949, passed the Georgia House Cmte on Governmental Affairs, to change Georgia’s one and five percent petition requirements from being based on registered voters, to being based on actual voters, but it died in the Rules Cmte, not coming up for a vote in the full House.

It is possible that Judge Story may not rule on the case until after this November’s Presidential Election occurs.

Winger tells APN, however, that most ballot access legal victories occur after elections, rather than before them, but that they improve the conditions for ballot access for future elections.

Meanwhile, Goode and Stein are successfully gaining ballot access in many other states throughout the country; Goode recently won a legal battle to appear on the ballot in Virginia.  There, the Republican Party had fought his ballot access effort out of fears that Goode would take votes away from Republican nominee Mitt Romney.  

In Georgia, on the other hand, voters will only have three choices: President Barack Obama as the Democratic nominee, Romney as the Republican, and Gary Johnson as the Libertarian nominee.  Libertarians have had a Presidential nominee on the Georgia ballot since their successful petition drive of 1988, under a provision that allows parties with statewide candidates on the ballot in the previous election to have statewide candidates on the ballot in the next.

Two ballot access petition drives by Green Party candidates were not successful this year, including one by former US Rep. Cynthia McKinney (D-GA), who sought to run as a Green candidate for her former Congressional seat, and one by Kwabena Nkromo, who sought to run as a Green for State House District 57.  Both aspiring candidates had attempted to gather signatures pursuant to Georgia’s five percent requirement for non-statewide candidates.

Both McKinney and Nkromo are in a good position to bring legal challenges on the five percent requirement as well.  A recent ruling in the case of Faye Coffield, an independent candidate who sought to appear on the ballot for Georgia’s fourth US Congressional District in 2008, noted that Coffield had not presented evidence on how many other Georgia candidates had tried to comply with the law and had failed.  That would be a fairly easy issue to remedy in a new legal challenge.

Georgia’s five percent requirement for non-statewide candidates is also one of the highest in the country.

(END/2012)

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