The Eleventh Circuit has posted the audio of the December 17 oral argument in the Georgia ballot access case. Listen to it here. It is 39 minutes. Scroll down to Cowen v Raffensperger.

Judge Pryor suggested that possibly the Georgia 5% petition requirement currently is more severe in reality than it was in 1971, because in 1971 there were no federal contribution limits on donations to petitioning candidates for Congress. He asked both sides about that. The requirement had been upheld by the U.S. Supreme Court in 1971.

Judge Grant said that perhaps the fact that an independent petition that succeeded in 2020 shows the 5% requirement is not too burdensome. She was referring to Keith Higgins, who was running for District Attorney in the Brunswick Judicial Circuit. But he only needed 3,526 signatures, whereas the U.S. House petition is usually about 25,000. A federal court in 2020 had reduced the independent petition requirement to 70% of the normal 5%, due to covid. Without that ruling, Higgins would have needed 5,038 signatures. He submitted 8,500 raw signatures.

Judge Hull asked the state if Wayne Parker, the Libertarian who tried hardest to get on the ballot for U.S. House, was a “reasonably diligent candidate”. He spent $40,000 in 2002, and hired 35 circulators. He submitted 20,000 signatures. In that year, the petition requirement was only 3% because the petitioning period was shorter, due to late redistricting. He needed 9,000 valid and the state said only 8,000 were valid, so he didn’t get on the ballot. The state’s attorney refused to admit that Parker was a diligent candidate. Judge Hull asked if Parker would have been considered a diligent candidate if he had spent $1,000,000, and the state’s attorney said, in that case, yes, he would have been a diligent candidate.

The most disturbing aspect of the hearing was that one or two judges seemed to feel the state has a “compelling interest” in keeping candidates off the ballot who are not reasonably diligent. The U.S. Supreme Court has never said that, and one wonders what that compelling interest would be. The U.S. Supreme Court has said several times that parties that are too weak to win still belong on ballots. For instance, in Williams v Rhodes, in 1968, the Court said, “To grant the state power to keep all political parties off the ballot until they have enough members to win would stifle the growth of all new parties working to increase their strength from year to year.”