On May 22, the Eleventh Circuit heard Cowen v Raffensperger, 19-14065. This is the case filed in 2017 that challenges the Georgia petition requirements for U.S. House, for independent candidates, and for the nominees of parties that polled less than 20% of the vote for president or governor in the last election. The law is so strict (a petition of 5% of the number of registered voters) that no petitioning candidate for U.S. House has successfully petitioned since 1964, and no minor party candidate for U.S. House has ever succeeded. The 1964 instance was an independent candidate. Back in 1964, the petition deadline was in October of the election year and the signatures weren’t checked. Nowadays the law requires approximately 20,000 signatures inside any particular U.S. House district, and the deadline is in July, and a filing fee of over $5,000 must also be paid.

The 5% petition law has survived because in 1971, the U.S. Supreme Court ruled in Jenness v Fortson that petitions of 5% are constitutional. The Jenness decision noted that the 5% petition requirement (which then applied to statewide candidates as well as district candidates) had been successfully used in both 1966 and 1968. Therefore the U.S. Supreme Court in 1971 said a 5% petition didn’t seem onerous and did not freeze the status quo.

However, in 1985, the Eleventh Circuit had ruled in Bergland v Harris that Jenness v Fortson does not mean that the Georgia 2.5% presidential petition (it had been lowered in 1979 from 5% to 2.5%) was necessarily constitutional. It remanded the case back to the U.S. District Court, with instructions to apply the balancing test mandated by Anderson v Celebrezze, a U.S. Supreme Court case issued in 1983. No further court procedings were held in the Bergland case, because in 1986 the legislature voluntarily lowered the statewide petition, for president and all other statewide offices, to 1%.

At the hearing on May 22, 2020, Judge R. Lanier Anderson suggested that the 1985 Bergland decision is binding, which means that Jenness v Fortson does not control the outcome, and that the law should be evaluated on whether it is really needed for a state purpose, and that the failure of any U.S. House candidate to meet the requirement since 1964 should be taken into account. Judge Adalberto Jordan also spoke, and in the interchange of ideas, the attorney for the Libertarian Party brought out that Jenness v Fortson did not deal with the cumulative effect of the petition plus the $5,000 filing fee. The filing fee was not an issue in Jenness. Also the Libertarian attorney was able to show that there is now an equal protection problem for the law, because Libertarians for statewide office need no petition, whereas Libertarians for U.S. House need a huge petition. That was not true in 1971 when Jenness was decided.

Soon the Eleventh Circuit website will post a link so that anyone can listen to the argument, which lasted 30 minutes. When that happens, this post will be amended to include that link.