On June 29, the 11th circuit upheld Alabama’s ballot access law for new and minor parties, and for non-presidential independent candidates. That law, first put into effect in 1998, requires a petition of 3% of the last gubernatorial vote. The decision was by Judge Frank Hull, who already had a bad record on ballot access. She had previously upheld Georgia’s district petition requirement of a petition signed by 5% of the number of registered voters, even though no minor party candidate has used that petition for U.S. House in 63 years.

The decision is Swanson v Worley, no. 06-13643. The decision does not mention that a law virtually identical to Alabama’s was declared unconstitutional law year in U.S. District Court in Arkansas. Nor does the decision mention the favorable ballot access in 2006 in Illinois and Ohio, in the 7th and 6th circuits. The decision does not mention the U.S. Supreme Court’s teaching in Storer v Brown, and in Mandel v Bradley, that ballot access laws that are seldom used are probably unconstitutional. The decision does admit that no one has used the 3% petition since 2000. But it says there is no evidence that anyone has tried since 2002. The truth is the Libertarian Party tried to qualify a statewide petition in 2006, and failed. Since this lawsuit was filed and adjudicated by the U.S. District Court in 2002 and 2003, no evidence could be submitted after 2003, so it is disingenuous for the decision to say that “there is no evidence in the record that any independent or minor party candidate sought and failed to gain ballot access since 2002.”

The decision says that the U.S. Supreme Court upheld a June petition deadline in 1971 in Jenness v Fortson. This is not true. The Georgia law upheld in 1971 in Jenness v Fortson did have a June deadline, but the deadline was not an issue in that case. Justice John Paul Stevens wrote in Mandel v Bradley that it is judicial error for any court to assume that Jenness v Fortson had upheld a June decision. The recent 11th circuit decision does not mention Mandel v Bradley.

The decision says that the U.S. Supreme Court upheld 3% and 5% district petitions in American Party of Texas v White, but the decision does not say that Texas had a maximum cap of 500 signatures on such district petitions.

It is not known if any of the Alabama plaintiffs will ask for U.S. Supreme Court review. A decision need not be made for several months.