Atlanta Progressive News

(APN) ATLANTA– The lawsuit challenging Georgia’s ballot access law requiring a five percent petition for non-statewide independent and political body candidates, brought by Faye Coffield, an independent candidate for Georgia’s 4th Congressional District in 2008, has been appealed to the Supreme Court of the US.

A Petition for Writ of Certiorari was filed in the case, Faye Coffield v. Brian Kemp, on November 02, 2010.

The question presented by the petition is, “Whether the Eleventh Circuit erred in declining to rule that Georgia’s 5% petitioning requirement for non-major party candidates for the United States House of Representatives is unconstitutionally burdensome, given that no such candidate has met the requirement since 1964 and no minor party candidate has ever met it.”

In addition, the Center for Competitive Democracy, Coalition for Free and Open Elections, and Free and Equal Elections Foundation in Support of Petitioners filed a Brief of Amici Curiae, or friends of the court brief, according to a copy obtained by Atlanta Progressive News, on December 06, 2010.

It is docket number 10-596 in the Supreme Court of US.  According to supremecourt.gov, the case has been distributed for conference as of January 14, 2011.

In the amici curiae brief, the organizations argue that while the State does not collect data on how many candidates have tried and failed to gain access to the ballot, that in 2010 alone, no fewer than nine independent and political body candidates tried and failed to get on the ballot [a political body is a political organization that is not recognized as a political party in the State of Georgia].

Former Atlanta City Councilwoman Mary Norwood’s failed attempt to get on the ballot as an independent candidate for Fulton County Chairman in 2010 was cited as one example.

In addition, Jeff Anderson, an independent candidate for Georgia’s 11th US House District gathered over 14,000 signatures and fell short of the 20,819 required.

Brad Bryant, the incumbent state school superintendent, collected 36,000 signatures in a few weeks, but fell short.  Governor Sonny Perdue had appointed Bryant for an interim term shortly after the deadline for the partisan primary elections, forcing him to run as an independent.

Ray Boyd failed to get on the ballot for governor as an independent after the party denied him ballot listing because he declined to swear a loyalty oath.

In addition, Keith Tomkins; Brad Ploeger, a Libertarian; Chuck Pardue; Brook Nebel, an independent; Allen Williamson, an independent; and Kirk Howell also tried and failed to gain access to the ballot for State House or Senate seats.

Atlanta Progressive News has been reporting on Coffield’s ballot access case since she first ran for office in 2008 and filed her lawsuit on August 29, 2008.

Most recently, the United States Court of Appeals for the Eleventh District, entered its decision, refusing to overturn the federal court’s previous decision, in Court of Appeals case number 09-13277, on March 19, 2010.  It denied a rehearing on August 04, 2010.

The Court of Appeals had ruled that even though Coffield had proven that she was effectively denied access to the ballot by Georgia’s burdensome five percent requirement, “but she does not allege how many candidates have tried.”

The Court of Appeals also ruled that “Our Court and the Supreme Court have upheld Georgia’s 5% rule before.  See Jenness v. Fortson… Cartwright v. Barnes… see also Swanson v. Worley, upholding Alabama’s 3% requirement where no independent or minor party candidate had obtained ballot access when nothing indicated that similar potential candidates had sought ballot access.”

In Jenness v. Fortson (1971), the Supreme Court of the US upheld Georgia’s five percent petition requirement.  But Coffield questions the continuing validity of Jenness v. Fortson.

“Petitioners presented the courts below with historical and comparative data, unavailable to this Court in Jenness v. Fortson… showing that no independent candidate for [US House] had met the 5% requirement since 1964; that no minor party candidate for [US House] had ever met the 5% requirement; that no independent candidate for [US House] in any state had ever met a petition requirement greater than 12,919 signatures; that Georgia is one of only two states which require an independent candidate for [US House] to obtain signatures exceeding three percent of the registered voters in question; that in 2008 the nationwide median signature requirement for [US House] was 2,750, and that the requirement was less than 5,000 in 318 Congressional districts, between 5,000 and 9,999 in 62 districts, and 10,000 or more in only 55 districts,” the petition states.

When Jenness v. Fortson was decided in 1971, someone had succeeded in getting on the ballot only seven years earlier, but that was now 46 years ago.

In response to the question about Coffield’s lack of data in her original complaint regarding how many other candidates had failed to get on the ballot, the petition states, “it was impossible for Coffield to have alleged how many candidates have tried to meet the 5% requirement.  There is no registry of candidates who have tried to meet the requirement and failed.  Such candidates need not report their attempts or their failures.”

“It is hardly surprising this Court [in earlier decisions] has not directed us to examine failed petitioning efforts; it has instead exhorted us to examine successful efforts.  See Storer v. Brown… Mandel V. Bradley… Crawford v. Marion County,” the petition states.

In the amici curiae brief, the organizations argue that Jenness v. Fortson in itself was based on a factual error.

Jenness v. Fortson was decided three years after the Supreme Court of the US overturned Ohio’s entire ballot access scheme.  In Jenness, the Court ruled that Georgia’s ballot access requirement was not as bad as Ohio’s had been.

However, the organizations argue that in fact, Georgia’s petition requirements were actually higher the ones struck down in Ohio in 1968.  Ohio’s requirement was 15 percent of actual voters.  Georgia’s requirement was 5 percent of registered voters.  However, because most registered voters do not vote, Georgia’s law actually required more signatures.

The US Supreme Court is expected to decide early next year whether it wants to hear the case.

(END / 2010)