On March 19, the 11th circuit issued a 3-paragraph ruling in Coffield v Handel, 09-13277. It is not signed and says:

“Appellant-Plaintiff Coffield sought access to the 2008 general election ballot as an independent candidate to represent Georgia’s Fourth Congressional district in the U.S. House of Representatives. She was not on the ballot. Briefly stated, she was unable to collect a sufficient number of signatures to satisfy Georgia’s requirement that an independent candidate submit a nomination petition signed by at least 5% of the total number of registered voters eligible to vote in the last general election for the position the candidate seeks. This appeal presents one issue, whether the district court erred when it dismissed Coffield’s constitutional challenge for failure to state a claim under Rule 12(b)(6). We conclude that it did not.

“Coffield claims that Georgia’s 5% rule is too burdensome; she alleges no independent candidate for the House of Representatives in Georgia has met the requirement since 1964 and that no minor party candidate has ever met it. But she does not allege how many candidates have tried. According to the Complaint, Coffield’s own petitioning effort resulted in about 2,000 signatures, less than 1% of the eligible pool and about 13,000 signatures short of what the rule required.

“Our Court and the Supreme Court have upheld Georgia’s 5% rule before. See Jenness v Fortson (1971) (stressing lack of restrictions on write-in candidates and on the obtaining of signatures for nominating petitions); Cartwright v Barnes, 304 F 3d 1138, 1140-42 (11th Cir. 2002). See also Swanson v Worley, 490 F 3d 894, 910 (11th Cir. 2007) (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). The pertinent laws of Georgia have not changed materially since the decisions in Jenness and Cartwright were made. AFFIRMED.”

One weakness in this decision is that it doesn’t mention that the U.S. Supreme Court said in 1974, 1977, and 2008, that courts are supposed to evaluate ballot access restrictions on how often they have been successfully used. The U.S. Supreme Court did not say courts should consider how many petitions have been tried and failed. Furthermore, there is no method to know how many candidates have tried and failed, although there is a record that Wayne Parker, a Libertarian, tried and failed in 2002, and there is also a record that Maceo Dixon, a Socialist Workers Party member, tried and failed in 1982.

Another weakness in the decision is that it doesn’t mention Bergland v Harris, a 1985 decision of the 11th circuit that said even a 2.5% petition might be unconstitutional, for Presidential candidates. The Bergland v Harris court remanded the case against the old 2.5% petition for president back to the lower court. But before the lower court did anything, the 1985 session of legislature lowered statewide ballot access to 1% of the number of registered voters, so that lawsuit was moot.

Coffield will ask for a rehearing en banc.