On March 20, the 11th circuit heard oral argument in Swanson v Alabama Secretary of State, no. 06-13643. The issue is Alabama’s 3% (of the last gubernatorial vote) petition for minor parties and non-presidential independent candidates, and the early June petition deadline.

The judges were very interested in the case, and had obviously read the briefs. Judge Stanley Marcus virtually said that the lower court decision (which upheld the Alabama law) seemed to have failed to consider the impact of the high number of signatures, in combination with the relatively early deadline. He suggested the possibility that the 11th circuit might remand the case back to the lower court, with instructions for the lower court to specifically address the interaction of the deadline with the number of signatures. The Alabama 3% petition has been in effect since 1997. In ten years, it has only been used statewide once, by the Libertarian Party, in 2000. But in 2000, the deadline was in mid-July. Libertarians in 2000 got the bulk of their 40,000 needed signatures on primary day in June. Afterwards the legislature moved the petition deadline so that technique is no longer available.

Judge Judith Barzilay, a visiting judge from New York, seemed to feel that Alabama can’t possibly have a valid state interest in requiring approximately 40,000 signatures for non-presidential independents, given that Alabama requires 5,000 signatures for independent presidential candidates. Since there is no election-administration related problem with the 5,000 requirement, she seemed to doubt the need for the 40,000 requirement.

Approximately 20 individuals attended the hearing, just to hear that particular case. It is very unusual for any ballot access hearing to attract that many people in the audience, and it helps.