As previously noted, last year a U.S. District Court invalidated the Georgia ballot access law governing petitions for U.S. House, but early this year, the Eleventh Circuit reversed most of that decision and upheld the Georgia law under the First Amendment. However, the Libertarian Party had also argued that the 1943 law violates the Equal Protection Clause because it was passed for a discriminatory purpose. The U.S. District Court Judge had not adjudicated that claim, because she hadn’t needed to, because she was eliminating the law on different grounds.

On April 12, the U.S. District Court agreed to adjudicate the Equal Protection part of the case, and set a briefing schedule for that part of the case. The plaintiffs’ brief is due May 4; the state’s brief is due May 25; the Libertarian reply brief is due June 8.

The evidence submitted so far, on the discriminatory purpose part of the case, is that the 1943 session of the legislature created the 5% petition in order to make sure that the Communist Party did not again appear on the ballot. The evidence is based on newspaper accounts of the legislature’s motivation. Before the 1943 law, Georgia permitted any party to place nominees on the general election ballot with no petition and no fee. So even though the Communist Party was extremely weak in Georgia throughout its entire history, it did appear on the ballot in 1928 and 1932, and it tried to get on in 1940, but the Secretary of State refused to put it on the ballot even though it complied with all requirements.