ELEVENTH CIRCUIT UPHOLDS THE NATION’S MOST RESTRICTIVE BALLOT ACCESS LAW

U.S. HOUSE LAW HAS NOT BEEN USED IN PAST 58 YEARS

On January 5, the Eleventh Circuit decided Cowen v Raffensperger, 21-13199, concerning the 5% (of the registered voters) petition for candidates for U.S. House who are not members of parties that polled 20% of the vote in the last election for President (in the entire nation) or Governor.

The decision upholds the U.S. House petition requirement, even though it has existed unchanged since 1964 and has not been used. The 5% figure has been in the law since 1943, but between 1943 and 1964, the signatures were not checked and were due in October, and U.S. House boundaries did not divide counties. During that 1943-1964 period, three independents, but no minor party nominees, did the 5% petition. The currentGeorgia law, applied to U.S. House candidates, is the only mandatory ballot access law in the nation that has never been successfully used.

In order to understand how the Eleventh Circuit could upheld this law, it is first necessary to know the history of the first two U.S. Supreme Court ballot access cases.

Williams v Rhodes

In 1968 the Court struck down Ohio’s ballot access laws in Williams v Rhodes, which was actually two cases, one filed by the American Independent Party, and the other by the Socialist Labor Party. The SLP plaintiffs included a candidate for U.S. House. The Ohio laws required a 7% (of the last gubernatorial vote) for all office except president. For president, the state required a petition of 15% (of the last gubernatorial vote). The Court struck down both laws in a 6-3 decision.

However, Justice Potter Stewart strongly dissented. He argued that allowing a third candidate on the general election ballot might result in "spoiling" the result, because no one might get a majority of the vote, and perhaps the presence of the third candidate could alter the outcome of the winner.

And, it is true that no one in Ohio in 1968 got a majority of the vote for president. Nixon carried the state with 45.2%; Humphrey received 42.9%; Wallace received 11.8%. No one can know how the vote would have gone if Wallace had not been on the ballot.

Jenness v Fortson

The Court’s second ballot access case was Jenness v Fortson, filed in 1970 by the Socialist Workers Party. This case challenged the Georgia petition for independent and minor party candidates, 5% of the number of registered voters. The Court unanimously upheld the law, although Justices Hugo Black and John Harlan abstained. Because of Jenness v Fortson, the Georgia 5% petition for district office still exists, and the recent Eleventh Circuit panel therefore refused to upset the law.

Unfortunately, the Eleventh Circuit did not understand Jenness. Page eight of the decision says, "the evidentiary record detailing the practical difficulties of gathering petition signatures may be more robust here than it was in that case." Actually, there was no evidence in Jenness about the practical difficulty of petitioning. The Socialist Workers Party did not present any evidence.

The case relied entirely on the logical point that because Democrats and Republicans didn’t need any petitions to get on the primary ballots, therefore it is unconstitutional to force minor party and independent candidates. That was the party’s sole argument.

The state’s only evidence in Jenness was to point out that the statewide 5% petitions had succeeded in 1966 and 1968. The U.S. Supreme Court thereby concluded that petitioning isn’t that difficult.

In hindsight, the Socialist Workers Party should have pointed out all of these points: (1) No statewide candidate had completed the 5% petition other than in 1966 and 1968 (in 1948 the legislature had suspended the petition requirement in order to help Strom Thurmond get on the ballot as the States Rights Party candidate for president, because they knew he could not complete the petition); (2) when the 1966 and 1968 successes had occurred, the petition deadline had been in September, but the legislature had moved the deadline to June in 1969; (3) Georgia was one of a minority of states that restricted the date on which petitions could start to circulate; most states then and now didn’t care how early the petition started to circulate; (4) Georgia was one of a small number of states that required the petitions to be notarized; (5) 5% of the number of registered voters in Georgia was actually a more severe requirement than 15% of the last gubernatorial vote in Ohio for most of Georgia’s elections in the period from 1943 through 1970, so Jenness contradicted Williams.

Because the Socialist Workers briefs didn’t mention any of these points, the record in Jenness was insufficient.

Since Jenness, the U.S. Supreme Court has understood dimly that the holding in support of the 5% petition is not wise. The Court has since issued many opinions that undercut Jenness:

1. In 1974 the Court said that when lower courts decide whether a ballot access law is too harsh, they should study how often the requirement has been used. The Court said this explicitly in Storer v Brown in 1974 and Mandel v Bradley in 1977. The Court said it implicitly in American Party of Texas v White in 1974 and Munro v Socialist Workers Party in 1986.

2. In 1983 in Anderson v Celebrezze the Court said that when lower courts evaluate a ballot access law, it should examine the "precise state interests" that make the law necessary.

Lower courts have applied these two principles, and struck down petition requirements that were easier than 5%, in 34 cases. Most of them are listed in the April 1, 2016 print issue of Ballot Access News. Since that list was published, there have been four more:

1. The Eleventh Circuit itself agreed with a U.S. District Court, and struck down the 1% petition for president in Georgia, in Green Party of Georgia v Kemp, 674 Fed App’x 974 (2017).

2. The Sixth Circuit struck down Michigan’s independent petition requirement of 30,000 signatures for statewide office, even though that was less than 1% of the last gubernatorial vote. Graveline v Benson, decision of March 29, 2021, case 20-1337.

3. The Eighth Circuit enjoined the Arkansas petition for minor parties, 3% of the last gubernatorial vote, on June 18, 2020. Libertarian Party of Arkansas v Thurston, 19-2503.

4. A U.S. District Court in South Dakota struck down the minor party petition of 2.5% of the last gubernatorial vote in 2018. Libertarian Party of South Dakota v Krebs, 290 F.Supp.3d 902.

The recent Eleventh Circuit decision did not mention any of these cases, except the Georgia Green Party case. The panel said about that precedent, "That decision does not control this outcome. It is not binding, and because it involved presidential elections, the nature of both the asserted injury and the State’s interests differs." The panel did not explain why that previous Eleventh Circuit decision is "not binding."

Failure to List PreciseInterests

The Eleventh Circuit disregarded Anderson v Celebrezze by failing to list any precise state interest in such a severe requirement. It asserts that states have a "compelling interest in ensuring that candidates have a significant modicum of support", but fails to expand on that point. It doesn’t acknowledge the voluminous evidence in the case that some U.S. House candidates in Georgia, who tried to get on the ballot, did have a significant modicum of support. It fails to acknowledge the evidence that the Libertarian candidates for statewide office have showed that the party does have significant support. Indeed, in 2012, 2014, and 2016, it had statewide nominees who polled 33% of the vote and carried Atlanta. In 2012 and 2016 it had statewide candidates who polled over 1,000,000 votes.

To the extent that the Eleventh Circuit also incorporated the state interests listed in the Jenness decision, none of the three state interests are relevant any longer.

(1) Jenness said there is a state interest in avoiding "frustration" of the electoral process. This is a reference to "spoilers". But that doesn’t apply to Georgia, because Georgia has run-off elections if no one gets 50% in November.

(2) Jenness said there is a state interest in stopping fraudulent candidates, but there was no evidence in either Jenness or this case that ballot access hurdles are needed to prevent fraudulent candidates. The entire reference was a mistake made by the faulty memory of Chief Justice Warren Burger, who said during the oral argument in Jenness that opponents of U.S. Senator George Norris of Nebraska had petitioned to get an independent candidate on the ballot to run against Norris, and this independent was also named George Norris. Actually, that maneuver, made in 1930, concerned another Republican with the same name running in the Republican primary.

(3) Jenness said there is a state interest in avoiding voter confusion caused by too many candidates on the ballot. But that does not apply in this case, because Georgia, in its entire history of government-printed ballots, has never had more than three candidates on a regularly-scheduled general election for Governor or either house of Congress (Georgia has only had government-printed ballots since 1922). The Court said in Lubin v Panish that an over-crowded ballot is one with more than a dozen candidates for a single office.

Decision Ignores Holding in Illinois State Board of Elections

In 1979, the U.S. Supreme Court ruled unanimously in Illinois State Board of Elections v Socialist Workers Party that states cannot require more signatures for an office in just part of the state, than it requires for statewide office. In Georgia, the minor party and independent presidential petition is 7,500 signatures. This has been true both for the 2016 and 2020 elections. Therefore, it should be unconstitutional for the state to require more than 7,500 signatures for U.S. House, yet House candidates need approximately 25,000. The Eleventh Circuit did not even discuss this point.

Equal Protection Holding

The Libertarian Party made a separate argument in this case, involving equal protection. The Libertarian Party is on the ballot for all statewide offices, under a provision of the law passed in 1986 that says if a party polls approximately 2% of the vote for any of its statewide nominees, it is automatically on the ballot for all statewide offices in the next election. The Libertarian Party has been continuously on the ballot for statewide office in Georgia starting I 1988. It has always passed the vote test and therefore has never again had to petition for statewide office.

Therefore, the party argued that its U.S. House nominees are being discriminated against, relative to its statewide nominees. The Eleventh Circuit said in response to this argument, "The magnitude of this inequality, however, is (at most) only as substantial as the severity of the burden of meeting the 5% signature requirement—the hurdle non-statewide candidate must overcome. And as we have already concluded, that burden is not severe." This is a circular argument; it seems to say that statewide candidates and non-statewide candidates are only treated unequally to a superficial degree, which is utterly at variance with reality.

Special Problems with U.S. House Petitioning

The Eleventh Circuit completely failed to mention the Libertarian Party’s evidence that petitioning for U.S. House is especially challenging, because the boundaries of the districts cut across county lines, are complicated, and result in many voters signing who don’t live in the district.

The only fact cited by the Eleventh Circuit that petitioning is not difficult for district office, is a reference to the fact that in 2020, an independent candidate for District Attorney of the Brunswick Judicial District completed a 5% petition.

But that candidate, Keith Higgins, was petitioning in a district that was composed of five whole counties, so he didn’t have the problem of signers not knowing if they live in the district. Also, he only needed 3,526 signatures, whereas U.S. House candidates need approximately 25,000.

Furthermore, empirical evidence shows that the most useful method to compare ballot access petitions is the number of signatures, not the percentage. This is explained in my article in the Fordham LawJournal, November 2021, vol. 09, no. 2, pages 611-612.

It is not too surprising that the court did such a careless job, because it issued the opinion only 17 days after the oral argument, yet there are approximately 300 pages of evidence, that the judges should have read.

The Libertarian Party will seek a rehearing before all the full-time judges of the Eleventh Circuit, and has already received an extension of time for that filing.

On December 31, U.S. District Court Judge Lance E. Walker, a Trump appointee, ordered the Secretary of State to put the Libertarian Party on the ballot in Maine. He also ruled that when Libertarians petition onto the 2022 Libertarian primary ballot, they may collect signatures from independent voters as well as from registered Libertarians. Baines v Bellows, 1:19cv-509.

Also, he told the state to list the Libertarian Party as a choice on its on-line voter registration page, although he did not require to state to reprint all its paper registration forms. But when the state next prints new forms, they must include the Libertarian choice.

He did not decide whether to put the party on the ballot for the 2024 election. The case remains open. He also ordered the state to send a postal letter to all the voters who were involuntarily switched from Libertarian to independent in late 2018, asking them if they want to re-register into the Libertarian Party. The mailing includes a voter registration form with the return postage paid by the state.

On January 4, the Maine Secretary of State refused to give Green Party candidates the ability to obtain primary petition signatures from independent voters. On January 11 the Green Party asked the Judge in the Libertarian Party case for permission to intervene in that case, so as to win the same primary petition relief that the judge had given to the Libertarian Party. On January 11 Judge Walker refused that, on the grounds that the party needed an attorney to ask. The party is now seeking an attorney.

On January 10, New York Assemblymember John Salka (R-Brookfield) introduced A8683. It lowers the statewide petition for independent candidates, and the nominees of unqualified parties, from 45,000 to 15,000 signatures. It also lowers the number of votes needed for party status from 2%, to 50,000. These two changes reverse the hostile 2020 ballot access changes. The bill also moves the petition deadline from May to August.

On September 27, 2021, California Governor Gavin Newsom signed SB 594 into law. It reduces the number of signatures for petitions in lieu of filing fee, for 2022 only, for district office. U.S. House and State Senate candidates need 1,358 signatures instead of 2,000. Assembly candidates need 679 instead of 1,000.

On February 1-4, the Republican National Committee will meet in Salt Lake City. It will decide whether to cut the party’s ties with the Presidential Debates Commission, which runs the general election debates. The party may pass a bylaw, forbidding its presidential nominee from participating in those debates. However, if the Commission makes concessions to the Republican Party, the party may relent. The Party feels that the Commission has in the past chosen debate moderators who were biased against Republicans.

The Centrist Solution: How We Made Government Work and Can Make it Work Again, by former U.S. Senator Joe Lieberman, 291 pages, 2021.

So far in this century, three individuals have been elected to the U.S. Senate as independent candidates. One of them was Joseph Lieberman, in 2006. He had lost the Democratic primary for re-election that year, so he then petitioned onto the general election ballot as the nominee of the "Connecticut for Lieberman Party." He won under that label.

Lieberman did not run for another term in 2012. He retired from the Senate, and then a few years later, he helped found "No Labels". It is an organization that strives to cause members of Congress to compromise across the aisle, to get along with each other and thus pass needed legislation. The purpose of the book is to illustrate how members of both major parties in Congress worked together, during the most of the period Lieberman was in the Senate (1988-2012). He says this cooperation declined during that period.

Lieberman prides himself on having worked with Republican Senators, and other Democratic Senators, to pass bills that he feels were very beneficial to the country. He deplores the current mood in Congress, in which Republicans seldom support any important bills that Democrats advance, and vice versa.

Lieberman is eager to show that "centrist" is not the same as "moderate." Lieberman uses the term "centrist" to mean a member of Congress who is highly motivated to work with members from the other major party. He says Senator Ted Kennedy "was one of the most liberal Democratic members of Congress" but he was still a centrist because he tried so hard to work with Republicans. Lieberman says the Kennedy method involved making a list of all issues in a particular bill, and then meeting with Republicans, and putting the issues into three categories: (1) those that they both agreed on; (2) those they could never agree on and so those were removed from the bill; (3) those that both sides thought could be amended into a compromise that both could support.

The book gives an account of all four of his Senate elections. In 1988, he barely defeated incumbent Lowell Weicker. Lieberman talks about how close that election was, but he does not mention that the Libertarian Party nominee in that race, Howard Grayson, polled 12,409 votes, a number larger than the 10,045 margin.

Concerning his 2006 election, he gives an interesting account of the problem that, as the nominee of a new party, he was listed on the sixth line, following the Democratic, Republican, Libertarian, Green, and Concerned Citizens Party lines. He made a television ad showing a voter and his bloodhound. The voter says to his dog, "Charlie, I need your help to find Lieberman on the ballot." The ad then shows the dog and the voter together in the voting booth.

Of course the book also discusses the 2000 presidential election, when Lieberman was the Democratic vice-presidential nominee. Lieberman mentions Ralph Nader only to say that during the campaign, the Gore-Lieberman campaign management "worried that Ralph Nader’s third-party populist candidacy could still take enough votes from us to elect Bush and Cheney." It is disappointing that Lieberman could not bring himself ever to write the words "Libertarian Party" or "Green Party." It is also disappointing that he says on page 266 that one of his goals "is to make our two-party system work again." He doesn’t seem to have noticed that paens to the "two-party system" have vanished in current analytical thought.

Lieberman is a good writer and his book is enjoyable reading for anyone who is interested in recent and current national politics and elections.

On January 10, a group of North Carolina voters asked the State Board of Elections to bar Congressman Madison Cawthorn from the May 2022 Republican primary. Cawthorn is charged with being ineligible to run for re-election because the Fourteenth Amendment, section three, says, "No person shall be a Senator or Representative in Cngresss…who, having previously taken oath, as a member of Congress…to support the Constitution of the United States, shall have engaged in insurrection of rebellion against the same."

The charge relates to Cawthorn’s actions on January 6, 2021. The hearing for the challenge can’t take place until North Carolina finalizes redistricting, because the challenge process requires a panel of adjudicators who live in the district, and no one yet knows who lives in which district. The State Supreme Court will hear the redistricting case on February 2.

State	No. Candidates	Year	Requirement That Year
Alabama	5	1970	hold a convention; no petition needed
Alaska	6	2006	3,128 signatures
Arizona	5	1932	213 signatures
Arkansas	4	2014	10,000 signatures
California	135	2003	65 signatures
Colorado	7	1936	500 signatures
Connecticut	6	1934	2,155 signatures
Delaware	6	1936	750 signatures
Florida	7	2010	pay filing fee; no petition needed
Georgia	3	2018	51,912 signatures
Hawaii	6	2002	638 signatures
Idaho	5	2010	1,000 signatures
Illinois	10	1920	1,000 signatures
Indiana	8	1932	500 signatures
Iowa	6	2010	1,500 signatures
Kansas	6	1914	hold a convention; no petition needed
Kentucky	6	1935	1,000 signatures
Louisiana	17	2003	pay filing fee
Maine	5	2010	4,000 signatures
Maryland	7	1938	2,000 signatures
Massachusetts	10	1938	1,000 signatures
Michigan	7	1982	file declaration of candidacy; no petition needed
Minnesota	8	1998	2,000 signatures
Mississippi	5	2003	submit list of party officers; no petition needed
Missouri	6	1952	hold a convention; no petition needed
Montana	5	1936	hold a convention; no petition needed
Nebraska	6	1896	500 signatures
Nevada	7	2010	250 signatures
New Hampshire	6	1902	1,000 signatures
New Jersey	19	1993	800 signatures
New Mexico	5	1932	hold a convention; no petition needed
New York	10	1998	15,000 signatures
North Carolina	4	2020	11,778 signatures
North Dakota	5	1936	300 signatures
Ohio	8	1897	10,144 signatures
Oklahoma	8	1934	pay filing fee; no petition needeed
Oregon	6	2018	18,279 signatures
Pennsylvania	7	1970	8,601 signatures
Rhode Island	7	2010	1,000 signatures
South Carolina	5	2014	10,000 signatures
South Dakota	5	1918	hold convention; no petition needed
Tennessee	28	2018	25 signatures
Texas	6	1932	hold convention; no petition needed
Utah	8	1992	300 signatures
Vermont	10	2002	1,000 signatures
Virginia	6	1933	file declaration of candidacy
Washington	8	1976	hold convention with 100 attendees
West Virginia	5	2016	6,645 signatures
Wisconsin	8	2002	2,000 signatures
Wyoming	4	2018	5,036 signatures

This chart shows states that required at least 5,000 signatures never had a crowded gubernatorial ballot.

Below are vote totals for the independent candidates, and also for the only minor parties that ran any nominees in the regularly-scheduled legislative elections of November 2021:

2021 STATE SENATE ELECTIONS

PARTY	New Jersey vote	New Jersey percentage
Libertarian	403	.50%
indp.	1,460	1.03%

2021 STATE HOUSE ELECTIONS

PARTY	N.J. vote	N.J. %	Va. vote	Va. %
Green	1,152	1.63%	– –	– –
Libt.	2,548	1.33%	2,992	1.80%
indp.	6,667	2.28%	12,315	7.38%

There were no State Senate elections in Virginia.

There were so many partisan wins by minor parties on November 2, 2021, that the entire list didn’t fit in the January 1, 2022 issue. Thus it is continued below. These are more Pennsylvania Libertarian wins, listed by county:

Northumberland: Commissioners Jacob Wright and John Burd (Coal Township); County Recorder Alison Smeltz (Northumberland); Election Judges Angelina and John Merchlinsky (Sunbury).

Pike: Township Auditor Robert Sweeney (Dingman).

Potter: Mayor Kate Crosby (Austin); Council Andrew Dynda (Austin).

Schuykill: Constables Amy Lauderman (Minersville) and Gregory Wall (South Manheim); Election Judge Avery Rumberger (Cass).

Tioga: Constables Jeffrey Bell (Chatham) and Roger Easton (Westfield).

Washington: Mayor Demo Agoris (Houston); Auditors John-Robert Wood (Union) and Richard Frediani (North Strabane); Constable Randy Kief (Houston); Election Judge JoAnn Pellman (Houston).

Wayne: Auditor Johnny Leland Robinson (Damascus).

Westmoreland: Auditors Arthur Martino and Melinda Fischer (Allegheny); Constables Gregory Kruk (New Florence), Thomas Anderson (Mount Pleasant) and Seth Tuthill (Rostraver).

York: Township Supervisor Craig Miller (Manchester); School Director Matthew Gelazela (Southwestern); Boroough Council Dave Womack (Dallastown); Auditors Brian Siatkowski (West Manchseter), Jay Nolt (Newberry), Michael Helm (East Manchester), Nicole Shultz (Windsor), Tim McMaster and William Lieske (Conawago); Constables Jacob Winograd (Dallastown), Joseph Foehlinger (Wrightsville), and Michael Schearer (Heidelberg).

On January 11, Florida held a special election to fill the vacancy in the U.S. House, 20^th district. The results: Democratic 78.99%; Republican 19.38%; Libertarian .70%; independent Jim Flynn .47%; independent Leonard Serratore .46%. When this same seat had been up in November 2020, the results had been: Democratic 78.68%; Republican 21.32%.

On January 7, Maine State Representative John Andrews changed his registration from Libertarian to Republican. He had been elected as a Republican in 2020, but had immediately afterwards switched to Libertarian. He is running for re-election this year.

Sage CQ Press has published America Votes 2020, another in the series that is published after every congressional election. It is found in most large and medium-size libraries, and has 2020 election returns by county for President, U.S. Senate, and Governor. It also has totals for U.S. House, and has primary returns for these offices as well.