On October 28, Georgia filed this opening brief in the Eleventh Circuit in Cowen v Raffensperger, 21-13199. This is the case over the Georgia 5% petition for independent candidates and the nominees of parties that didn’t poll as much as 20% of the presidential vote nationwide, or 20% for Governor of Georgia, in the last election.

For U.S. House, no one has ever compiled with the law since 1964, and back in 1964 the deadline was in October, the signatures weren’t checked, and U.S. House district boundaries matched up with county boundaries, making petitioning far easier. The 1964 success was by an independent candidate. No third party candidate has ever complied with the law since it was passed in 1943.

The state’s main point to show that the requirement is not too difficult is that in 2002, the Libertarian Party “almost” succeeded. As the brief notes, the party spent $40,000 to get one candidate on the ballot, and still didn’t succeed. What the brief fails to mention is that in 2002, because redistricting was late, the petition had been reduced to 3% for that year only.

The state only mentions ballot access precedents that upheld severe laws, and fails to mention any of the cases that struck down similar petition requirements. The state’s footnote three dishonestly says that New Hampshire had a 3% requirement and it was upheld. Actually New Hampshire has two methods for minor parties to appear on the ballot, and the easier one, 3,000 signatures for statewide office and 1,500 signatures for U.S. House, was the subject of that lawsuit. The same footnote also erroneously says the Tenth Circuit upheld Wyoming’s 5% independent petition requirement, when that decision did not come to a conclusion about the constitutionality of the law; also of course, petitioning in Wyoming for U.S. House was far easier because the entire state is one district, so signatures gathered anywhere in the state were valid. Part of the reason no one has succeeded in completing a Georgia 5% petition requirement is that the boundaries of the districts are complex, and invariably a large number of the signatures are invalid because the signer lives outside the district. Footnote three also says the Oklahoma 5% petition was upheld, but that was a party petition in which, again, signatures anywhere in the state were valid; and Oklahoma didn’t require any petition whatsoever for independent candidates for U.S. House.

The state’s brief says the Libertarian Party fell “far short of proving that Georgia’s 5% petition requirement is impossible to meet”, yet as the brief admits, eleven individuals did try in the last 40 years and no one succeeded. One wonders if the state would admit that the petition requirement is too difficult if 100 or 150 years go by without any successes.