Atlanta Progressive News

(APN) ATLANTA — Faye Coffield, a former police officer and private investigator for former US Rep. Cynthia McKinney (D-GA), is challenging US Rep. Hank Johnson (D-GA) for his seat in the upcoming General Election in November 2008.

However, she was unable to gather the 15,000 petition signatures of registered voters in Georgia that is required to get on the ballot, so she is running as a write-in candidate.

Now, she is challenging the State of Georgia in federal court for its ballot access laws for US Congressional races, which she says places an undue burden on independents and minority party candidates running for office, especially Black candidates.

Coffield is the first independent candidate to attempt to challenge the constitutionality of the 5 percent law for US House candidates in court, Richard Winger, national expert on ballot access laws, told Atlanta Progressive News.

Attorneys for Faye Coffield–Gary Sinawski of Brooklyn, New York, and Walker Chandler of Zebulon, Georgia–filed a Complaint for Declaratory and Injunctive Relief in the US District Court, North District of Georgia, in late August 2008, according to a copy of the filing obtained by Atlanta Progressive News.

Sinawski is a national elections and constitutional civil rights lawyer. Chandler, as previously reported by APN, has also participated in the VoterGA case over Georgia’s electronic voting machines.

Secretary of State Karen Handel (R-GA) filed her response in mid-September by way of Georgia’s Attorney General Thurbert Baker, Deputy Attorney General Dennis Dunn, Senior Assistant Attorney General Stefan Ritter, and Assistant Attorney General Penny Hannah, the usual suspects. Handel made a motion to dismiss and filed a 21-page brief supporting her request, also obtained by APN.

The case is currently in jeopardy due to a clerical error by the court, APN has learned. The clerk mailed the filings to the wrong address for Coffield’s lead attorney, and Sinawsky did not receive the state’s response until last week, he told APN.

They are currently attempting to file a request for a summary judgment, Sinawsky said.

The state requires any “nomination petition of a candidate for any [non-statewide] office shall be signed by a number of voters equal to 5 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected,” according to the Office Code of Georgia, 21-2-170(b).

For Georgia’s fourth Congressional District, that number is 15,061 signatures. Coffield told APN she was only able to gather about 3,000 signatures and said the 5 percent rule was an undue burden on her campaign and the ability of voters to have choices in the upcoming election.

No candidate in history has ever gathered that many signatures, Winger said. “In the entire history of the US House, no candidate has ever overcome a petition requirement or hurtle harder than 13,300 signatures,” he said.

“I had to obtain 25000-35000 because they already stated there would be a challenge to my signatures,” Coffield said. “In Tennessee I would’ve needed 25. In Mississippi, I would’ve needed 200.”

“It’s difficult because first of all, the form is on 8 1/2 by 14 which means you cannot email it anybody. Nobody has 8 ½ by 14 paper. You have to go out and buy legal paper. Each page has to be notarized and each page only contains 15 signatures. So you have to have a minimum of 1000 pages notarized, with a $4 standard notary fee for each page. So you’re talking about $4,000 just to be notarized,” Coffield said, adding there’s a $4800 filing fee, the highest in the nation.

“In 1943 [when the law was passed], you could go stand in front of Piggly Wiggly [store]. Now, most of your supermarkets and malls do not allow you to come on the property to get signatures. The only thing you can do is go to homes,” Coffield said.

Winger added another difficulty is that voters often do not know what Congressional district they are in, especially in Georgia, where gerrymandering has led to districts very odd in shape.

Coffield also added that if a notary public signs one of the petitions themselves, all of the signatures they gathered are disqualified.

In order to be considered political parties by the State of Georgia [not just political bodies] and be exempt from the nomination petition requirements, the party must have either received at least 20% of the vote for its gubernatorial or presidential candidate in the previous election.

Another way for a political body to get on the ballot, without a petition or obtaining party status, is to obtain at least 1% of the vote in a previous statewide election for a candidate on the ballot.

The Libertarian Party has been able to get on the ballot that way in the past several elections and thus why they are currently able to run a US Senate candidate, as it is a statewide race. Indeed, many political analysts are speculating that the presence of a Libertarian candidate in the race for US Sen. Saxby Chambliss’s (R-GA) current seat may have an impact in that race, possibly leading to a run-off.

As previously reported by Atlanta Progressive News, Democrats and Republicans have not in recent decades had to obtain nominating petitions for any office in Georgia because they typically meet the status of political parties, having obtained at least 20% of the vote in a statewide or national election.

The current system “allows people to cut deals between the Democratic and Republican Parties,” Coffield told APN. “It keeps people off the ballot.”

“There’s no reason Congressman Johnson is unopposed except somebody cut a deal,” Coffield said.

“Somebody told me that a deal was cut when he ran against McKinney that they were going to let him run unopposed this time,” Coffield said.

Back in 2006, McKinney had asserted that Republican funders and voters had been involved in supporting Johnson’s campaign, noting that Georgia’s open primary system allowed Republicans to vote in a Democratic Primary if they had a motive to do so.

This year is the first time in decades no one has opposed a sitting Congressperson in the 4th Congressional seat, Coffield said.

“It’s like he’s got the world locked up in his corner. I’m like what has he done that’s that so great?” Coffield asked.

The ballot access laws are so stringent, “no independent candidate for the United States House of Representatives has met Georgia’s five-percent requirement since 1964, and no minor party candidate for the United States House of Representatives has ever met the five-percent requirement,” Coffield’s attorneys wrote in their complaint.

“In adjudicating the constitutionality of petition-signature requirements for independent candidates, the Supreme Court has directed that trial courts inquire whether or not ‘a reasonably diligent independent candidate [could] be expected to satisfy the signature requirement, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot?'” Coffield’s attorneys wrote, citing a case, Storer v Brown (1974).

“Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter it they have not,” justices wrote in Storer v. Brown.

In the recent US Supreme Court case involving Indiana’s voter ID law, Conservative Justices Scalia, Alito, and Thomas invoked the principle, according to Coffield’s attorneys as well as Richard Winger.

“We reminded them the Supreme Court said the validity of a law is whether it has been used,” Winger, who introduced Coffield to Sinawski, told APN. If no one has ever gathered the necessary signatures, the law has not been used.

“Furthermore, just this year, Justice Scalia wrote a concurrence where he reminded everybody that in 1974 that ballot access laws are unconstitutional if they’re never used. If nobody can ever do it, obviously it’s too hard. That’s why this law is in trouble, it hasn’t been used since 1964,” Winger said.

Coffield and her attorneys argue that the law does not serve any compelling state interest except to keep minority parties off the ballot.

“That’s the only one– that’s not a legitimate interest,” Sinawski said.

The State responded to all of this by saying that the courts have previously upheld the constitutionality of Georgia’s law.

The State also said the courts have noted before that candidates are eligible to have their names written in, something Winger said is not an adequate replacement for being on the ballot.

The State also cited a previous court ruling, Jenness v. Fortson (1971), where justices wrote, “There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot – the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.”

Winger said, however, he believes the case has a good chance because the difference between this case and previous cases where Libertarians challenged the 5 percent law, is that Coffield has actually tried to obtain the signatures.

Also, Winger said the recent statements by US Supreme Court justices were important. The State replied that Scalia’s statements were irrelevant.

“As we face this upcoming election, it’s already been said whoever wins the White House, they will win it based on independent voters, but independents can’t put candidates on the ballot,” Coffield said.

“It’s grossly unfair because it forces people to be either a Democrat or a Republican, but nowhere in the Constitution of the United States does it say the only people allowed to be on the ballot are Democrats or Republicans. What we’ve had for the past 20 years is a government that has failed to meet the needs of the public because all it has to do is rotate the power between them,” Coffield said.

About the author:

Matthew Cardinale, News Editor, is reachable is matthew@atlantaprogressivenews.com

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