The Ohio Libertarian Party’s petition to get back on the ballot now has more than 70,000 signatures. The requirement is 54,965. The party expects to finish by December 31, 2017. This is easily the most difficult petition drive being undertaken by any political party during 2017. The Ohio requirement is the second highest number required by any state for new party ballot status for 2018 (when the easier method to get a new party, with the party label, is compared state-by-state).

Only California has a higher number. The California number, approximately 60,000, requires registered members, not petition signatures. The California number can’t be known exactly yet, because the formula is .33% of the total number of registered voters as of the deadline, which is in the future.

On November 21, the Georgia Libertarian Party filed a lawsuit against the nation’s most restrictive petition requirement for minor party or independent candidates, the Georgia petition requirement for U.S. House, for minor party and independent candidates. Cowen v Kemp, U.S. District Court, northern district, 1:17cv-4660. It is assigned to Judge Leigh Martin May, an Obama appointee.

Georgia requires a petition of 5% of the registered voters for a candidate for U.S. House who is running other than as a Republican or a Democrat. The existing law has existed since 1964 and has never been used successfully. Although one independent did get on for U.S. House in 1982, that candidate was not required to comply with the 5% petition because his district had been re-drawn in the spring of the election year. The law only applies to regularly-scheduled elections, not special elections. In special elections no one needs a petition.

The requirement amounts to approximately 20,000 valid signatures. District petitioning is more difficult than statewide petitioning, because every potential signer knows what state he or she lives in, but most potential signers don’t know what district they live in. Also in Georgia, as in many states, the district boundaries are very irregular.

The last time anyone sued over Georgia’s petition requirement for U.S. House was 2008, when independent Faye Coffield sued. The Eleventh Circuit said that because she had not submitted any evidence that anyone had ever tried to petition for U.S. House in Georgia, her case was not strong enough to prevail. The new Libertarian lawsuit will have evidence that at least ten candidates have tried and failed to petition for U.S. House in Georgia. The U.S. Supreme Court has said twice that ballot access laws that seldom get used successfully are probably unconstitutional.

The 39-page Complaint documents that the Libertarian Party has substantial voter support in Georgia for its statewide nominees. The party has polled over 30% in statewide partisan races four times during the last decade. The party is ballot-qualified only for statewide office. The Libertarian Party has placed 2,564 nominees for U.S. House in regular elections during its lifetime, and they have been on the ballot in all states except Georgia.

On November 17, the Ninth Circuit issued a four-page opinion, upholding the California Secretary of State’s refusal to allow the Independent Party to file as a political body. Independent Party v Padilla, 16-15895. In California, new parties generally qualify for the ballot by persuading approximately 60,000 voters to register with that party. In order for everyone to know how many registrants such groups have, the law allows such groups to file as a “political body”, and then county election officials keep a tally. But no one can know how many registrants the Independent Party has, because the Secretary of State refused to allow the group to become a political body. He relied on a law that says no two parties can have names that are so similar as to cause confusion. The American Independent Party has been on the ballot in California since 1968, so Secretary of State Alex Padilla said no party can exist named “Independent Party.”

The decision ignores the fact that California permitted Americans Elect Party to qualify in 2011. One wonders why that name was permitted, given that both the American Independent Party and Americans Elect used the word “American”. The decision ignores the evidence that showed that 44 states have at one time or another permitted two parties to be on the ballot even though they shared a common word in their name. Mostly, these were parties that shared the word “socialist.” The decision also ignores the evidence that in recent decades, a ballot-qualified party named “Independent Party” has been on the ballot in Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, New Mexico, North Carolina, Oregon, South Carolina, and Utah.

The decision ignores precedents from the California Supreme Court in 1896 that allowed both the National Democratic Party and the Democratic Party to be on the ballot; by the Oregon State Court of Appeals that said both the Socialist Party and the Freedom Socialist Party could be on the ballot; by the Fifth Circuit that said Mississippi must let the National Democratic Party be on the ballot even though the Democratic Party was on the ballot; and by a U.S. District Court in Pennsylvania that said both the Socialist Labor and the Socialist Workers Party could be on the ballot.

The decision says that if the Independent Party were on the ballot, that would cause confusion with independent presidential candidates, who have the ballot label “independent.” But the decision ignores the evidence that the Independent Progressive Party was ballot-qualified 1948-1954 and that did not seem to cause any confusion with independent candidates. The decision is unsigned and will not be published, but the three judges on the case were Ronald Gould (a Clinton appointee), Mary Helen Murguia (an Obama appointee), and James E. Gritzner (a Bush Jr. appointee, visiting from Iowa).