Fight Over Ballot Access in Georgia Hits 11th Circuit

Third-party congressional candidates must get the signatures of 5% of the number of registered voters in their district, while Democrats and Republicans are automatically placed on the ballot.  

People vote early in Marietta, Ga., on Oct. 27, 2018. (AP Photo/Mike Stewart, File)

(CN) — Georgia’s election laws unfairly restrict third-party candidates from running for Congress, an attorney for the state’s Libertarian Party told an 11th Circuit panel Friday.

Bryan Sells, who represents the Libertarian Party of Georgia and two aspiring U.S. House of Representatives candidates, wants the Atlanta-based appeals court to strike down Georgia’s election-qualifying law that assigns different requirements for House candidates nominated by the two major political parties and third-party candidates.

Under the current law, third-party candidates must file a qualifying fee and gather the signatures of 5% of the number of registered voters in the district. Candidates nominated by the Democratic and Republican parties do not have to submit the nomination petition and automatically appear on the ballot.

“There is no constitutional justification for continuing to deny Georgia voters the opportunity to vote for Libertarian candidates for Congress,” Sells told the three-judge panel during Friday’s oral arguments. “The rights of Georgia’s voters to express their political preferences freely are at stake here.”

Immediately, U.S. Circuit Judge Adalberto Jordan jumped in.

“How in the world are we supposed to decide an issue the Supreme Court did years ago?” Jordan asked.

The judge, appointed by Barack Obama, referenced Jenness v. Fortson, a 1971 Supreme Court decision that upheld essentially the same petition requirements now challenged by the Libertarian Party.

Sells maintained there have been changes to the law since that decision that further restrict access, including a new rule requiring the notarization of signatures.

The number of candidates who have qualified for a congressional seat since then shows the onerous nature of the law, he added.

“There have been more than 20 candidates that have tried unsuccessfully just in the last 20 years alone,” Sells said. “No third-party candidate for representative has appeared on the general election ballot since the scheme was first enacted in 1943.”

In addition, he argued, third-party candidates seeking statewide offices only need the signatures of 1% of registered voters to appear on the ballot, claiming the requirements for Congress violate the equal protection clause.

Charlene McGowan, representing Republican Secretary of State Brad Raffensperger, echoed many of Judge Jordan’s concerns. She argued Georgia’s law has been repeatedly upheld and the 11th Circuit cannot break precedent.

McGowan also took issue with the Libertarian Party’s claims the law violates the equal protection clause.

“Merely because a political body candidate – someone for the Libertarian Party – may have some support statewide does not necessarily mean that a candidate will have that type of support amongst the voters on the congressional level,” she said.

The Libertarian Party of Georgia brought the federal lawsuit in 2017 on behalf of Martin Cowen, who wants to run for the state’s 13th Congressional District seat, and Aaron Gilmer, who seeks to represent the 9th Congressional District. Two registered voters also joined the complaint.

U.S. District Judge Leigh May, an Obama appointee, upheld the law at issue last September.

“While plaintiffs present a robust record and some compelling arguments, the court cannot ignore the fact that similar challenges to the Georgia Election Code have been rejected by higher courts,” she wrote.

The Libertarian Party appealed and the 11th Circuit agreed to hear the case in January.

Jordan was joined on the panel by Senior U.S. Circuit Judges R. Lanier Anderson III, a Jimmy Carter appointee, and Gerald Baird Tjoflat, a Gerald Ford appointee.

The judges did not indicate when they will reach a decision in the case.

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