Atlanta Progressive News

With additional reporting by Xanna Don’t.

(APN) ATLANTA — On Tuesday, July 13, 2010, former Atlanta City Councilwoman Mary Norwood (Post 2-at-large) turned in 30,174 petition signatures in support of her independent candidacy for Fulton County Chairwoman. It is the greatest amount of signatures ever collected by a candidate in the State of Georgia in a non-statewide race.

Free and Equal, a national firm referred to the Norwood campaign by Atlanta Progressive News, succeeded in collecting the total amount of signatures needed. In addition to that, Norwood’s campaign, including community volunteers, collected about 9,000 more. This provides a cushion in case some of the signatures are found invalid for one of several possible reasons.

Norwood initially had tried to collect all the signatures using community volunteers, but realized that the task was too daunting. Norwood said that Christina Tobin of Free and Equal told her that the 9,000 signatures was the most Tobin had ever seen from a grassroots effort.

As previously reported exclusively by Atlanta Progressive News, independent Faye Coffield previously tried to collect 15,000 signatures to run against US Rep. Hank Johnson (D-GA) in 2008, but only collected about 2,000 signatures.

Meanwhile, despite this historic achievement, the Fulton County Board of Elections voted 3-1, later that day, to reject Mary Norwood’s candidacy because she turned in a separate form about four hours late.

MISSED DEADLINE

State law requires that an independent or third party candidate pay a qualifying fee and turn in a form announcing their intention to turn in petitions, two weeks before the petitions themselves are due.

Specifically, OCGA 21-2-132(d) states: “Except as provided in subsection (i) of this Code section, all political body [political parties not officially recognized by the State of Georgia] and independent candidates shall file their notice of candidacy and pay the prescribed qualifying fee by the date prescribed in this subsection in order to be eligible to have their names placed on the election ballot by the Secretary of State or election superintendent, as the case may be, in the following manner:”

OCGA 21-2-132(d)(2) continues: “Each candidate for a county office, or his or her agent, desiring to have his or her name placed on the election ballot shall file notice of his or her candidacy in the office of the superintendent of his or her county no earlier than 9:00 A.M. on the fourth Monday in June immediately prior to the election and no later than 12:00 Noon on the Friday following the fourth Monday in June in the case of a general election…”

Norwood knew about the deadline, but did not realize State law required the form to be turned in at noon. She showed up later in the day, saying she had thought she had until the end of the business day to turn in the form and check.

Norwood’s Campaign Manager, Erica Barnes-Ford, had just been diagnosed with Stage II breast cancer, leaving the campaign in turmoil. The Norwood Campaign has implied that Barnes-Ford knew about the deadline and that Norwood had delegated the responsibility of learning about, and complying with, the election form deadlines, to her campaign.

While Norwood brought on former City Councilwoman Anne Fauver (District 6) as Interim Campaign Manager, Fauver apparently did not learn about the noon deadline; nor was it communicated to Norwood.

Norwood also has complained that the information about the noon deadline was not available on Fulton County’s website, even though it was listed in the law and on the Secretary of State’s website.

It is not immediately clear what Fulton County’s process is for educating independent and political body [so-called third party] candidates about the petition process and requirements, and other qualifying deadlines.

Norwood was not enthusiastic about discussing it, however.

“Typically everything was five o clock. I wasn’t given the noon deadline. I missed the deadline. It either is significant or wasn’t significant,” Norwood said.

“I don’t have the resources of a political party and their lawyers. I’m relying on a skeleton crew. I have depleted my savings, I’ve made incredible sacrifices,” Norwood said. “I had persevered, collected signatures.”

“30,000 voters who have made their desire to have Norwood on the ballot, will they be disenfranchised if Norwood is not on the ballot and is not a choice for them?” Norwood said.

Meanwhile, Fulton County has begun counting Norwood’s thousands of petition signatures, anticipating a legal challenge to the Board’s rejection of her candidacy.

“We’re disappointed,” Norwood told Atlanta Progressive News. “I’m talking with a lawyer about what the next steps should be. The fact they found no harm done is very important.”

“I don’t know exactly what course we’re gonna pursue. I need to get with the lawyer. I’m pursuing something in the court, but am not sure what that looks like,” Norwood said.

When asked if Norwood is considering a write-in candidacy for Fulton County Commission, “I won’t have to make a decision on that until September,” she said. “I really need to see about getting on the ballot before then.”

Norwood said she would continue to work on ballot access to reform the law in the next legislative session. “I think there are definitely things to be changed in the law. I want to make it easier and clearer for people.”

FULTON COUNTY ELECTION BOARD HEARING

The Fulton County Election Board actually made five decisions, according to a summary obtained by Atlanta Progressive News. The first four were findings of fact and there fifth was a legal determination.

The Board ruled unanimously that “(1) The notice of Candidacy was filed by Mary Norwood at 4:40p.m., which was after 12 noon on July 2, 2010. (2) The Board finds there would be no harm to either the candidates who qualified or the voters if the Notice was accepted when it was filed.”

The Board ruled 3 to 1 that “(3) The Board heard no evidence that would constitute substantial justification for Norwood’s filing her Notice at 4:40 p.m.on July 2, 2010, instead of 12 noon July 2, 2010.” Vice Chair William F. Riley, Jr., voted no.

The Board ruled unanimously that “(4) The Board lacks authority to address any of the constitutional issues raised in writing by the Norwood campaign.”

Finally, the Board ruled 3 to 1 that “(5) The Board finds it is without the discretion to waive the statutory deadline set by the hour of 12:00 noon on July 2, 2010, pursuant to OCGA 21-1-132(d)(2), and therefore, does not accept the Norwood Notice of Candidacy and will return the candidate’s qualifying fee.” Riley voted no.

The Board also ruled unanimously to issue a directive to “direct the Executive Director to review the nomination petitions filed by Mary Norwood and include in the review signatures obtained on sheets with the pre-typed word of ‘Fulton’ in the county section to to insure these petitions are verified in a timely manner in the event of litigation and a decision that Norwood is entitled to be a candidate if her nominating petition is valid.”

Chairman Roderick Edmond called the meeting to order at 2:05 pm. He clarified that his recent letter to the Norwood Campaign–in which he rejected her late Notice of Candidacy, contained “his personal opinions” and not those of the Board.

Riley motioned to change the agenda order. He suggested an Old Business item regarding voter citizenship be reviewed first. But with no second to his motion and a packed room of 65 citizens wearing Mary Norwood stickers on their lapels, the original agenda was kept.

Norwood’s presentation began with statements from her attorney, Matt Maguire.

He stated Norwood is “seeking ballot access as an independent” and told the Board that the campaign had submitted 30,174 signatures to Fulton County earlier in the day.

Maguire argued to the Board that they could override the technicality. “You have the discretion to do that,” he said.

He then directed everyone’s attention to the presentation of a large white poster board containing two typed paragraphs.

The first paragraph cited Collins vs Birchfield, a 1994 Georgia case where a taxpayer was relieved of a 30-day statute, despite the use of the word “shall” in the statute.

The second was OCGA 21-2-132(d)(2) stipulating the noon deadline; its language also uses “shall.” Maguire insisted both are simply “directives.”

He described both predicaments as “creatures of statute” and pointed out that waiving either time limit produces “no injury to third parties.”

Edmond questioned whether the Board’s interference could result in misdemeanor charges; Maguire insisted that no charges would result.

Later in the meeting, Maguire produced the statute of Edmond’s concern, OCGA 21-2-153 (d)(2).

That statute, according to research by APN, states: “(2) Except as otherwise provided in Code Section 21-2-154, it shall be unlawful for any person to add or remove any candidates from either of the lists provided for in paragraph (1) of this subsection following the posting of such lists unless such candidates have died, withdrawn, or been disqualified. Any person who violates this paragraph shall be guilty of a misdemeanor.”

Maguire correctly noted that paragraph 1 of the subsection–referenced in the code–pertains only to candidates of political parties recognized by the State of Georgia, rather than independent candidates or so-called political bodies.

This prompted the Board’s attorney, A. Lee Parks, Jr., to question that oddity. “Why?” Parks inquired.

“I don’t know,” Maguire replied. “That’s what the statute says.”

LEGAL AND BALLOT ACCESS ISSUES

“There’s no government interest in requiring an independent candidate to pay his or her filing fee before the petition is due. It’s silly. Why should a person pay thousands of dollars if they don’t know whether they’re gonna get on the ballot or not?” Richard Winger of Ballot Access News told APN.

“Why do they force the poor independent to pay the filing fee early?” Winger asked. “Only five states have ever had this stupid idea in their law.”

The other four states are Connecticut, New Hampshire, Rhode Island, and Texas. West Virginia recently repealed theirs, he said.

“A similar law had previously been found unconstitutional in South Carolina because it interferes with voting rights and doesn’t do anyone any good,” Winger said, noting a case where James Cromer challenged the early deadline and prevailed, going on to serve in the state legislature.

South Carolina is part of the 4th Circuit of federal court, however; Georgia is part of the 11th. “So it’s not controlling,” Winger said.

“There’s an 11th Circuit case in Alabama,” Winger noted. “Alabama had an April petition deadline. They struck it down. There’s no reason to have it that early.”

“Generally speaking, there’s been a lot of victories for [overturning] early deadlines,” Winger said. “Generally courts agree the deadline can’t be before the Primary.”

Winger said what distinguishes the Alabama case from Norwood’s case is, “She’s not fighting the deadline for the petition, she’s fighting the deadline for paying the fee. The Alabama case is going to help Mary.”

Winger did have some positive things to say about the Fulton County Elections Board, though. “I have to commend them for checking the signatures. I heard there was one vote to excuse her, so okay, congratulations to that person.”

“I can’t get mad at the Board, it’s not their place to decide the rules. I hope Mary gets to court and she gets a good judge and the judge rules the deadline is unconstitutional,” Winger said.

Winger noted that Norwood could win as a write-in but that it is quite rare. “She could- there have been write-in candidates who got elected. In 1954, Strom Thurmond was elected to the US Senate on write-ins. There’s been five Members of the US House elected in write-ins in the General Election. Six state legislators in the last 15 years were elected on write-ins.”

Winger also noted there have been several rulings in US history where Presidential candidates have been allowed on the ballot despite late filings for candidacy in various states.

“If the person is important enough, they excuse these deadlines,” Winger said.

As brought up during the Board Meeting by Maguire, in 2008, Barack Obama and John McCain got on the ballot late in Texas. Despite a lawsuit by Libertarian candidate Bob Barr, who argued it was not fair for them to be allowed on if they did not comply with the rules and he did, they were allowed on the ballot.

In 1988, George H. W. Bush and Michael Dukakis got on the ballot late in Indiana. Lenore Fulani, an New Alliance Party candidate, sued. But the courts ruled in favor of the two major candidates to overlook the missed deadline, Winger said.

In 1964, Lyndon Johnson got on the ballot late in Iowa, Winger added.

(END/2010)

About the author:

Matthew Cardinale is the News Editor for The Atlanta Progressive News and is reachable at matthew@atlantaprogressivenews.com. Xanna Don’t is the Editor of Don’t Label It, an Atlanta ‘zine, and is reachable at dontlabelit@gmail.com.

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