It’s effectively impossible for a third-party candidate in Georgia to run for the U.S. House of Representatives because of an unusually restrictive ballot-access law that the state legislature enacted almost 80 years ago to keep Communists out of Congress. 

The Libertarian Party of Georgia has spent the last five years fighting in court to change that–and this week it fired its latest legal salvo. The Libertarians asked the 11th U.S. Circuit Court of Appeals on Feb. 23 to re-hear Cowen v. Raffensperger, its challenge to Georgia’s stringent ballot-access requirements.

For almost 80 years, not a single third-party candidate seeking to get on the ballot for a U.S. House race has been able to meet the Georgia Secretary of State’s requirement that they collect signatures on a nominating petition from fully 5% of their congressional district’s active voters. That averages out to about 25,000 signatures for each of Georgia’s 14 congressional districts, according to the Georgia Libertarians’ lawsuit, filed in 2017. 

The 5% signature requirement dates back to a 1943 law aimed at keeping Communist Party candidates off the Georgia ballot. The law succeeded in keeping the Communists away from voters–along with every other third-party candidate in Georgia seeking a U.S. House seat. 

By contrast, the Democratic and Republican parties’ nominees for U.S. House seats automatically appear on the ballot, as long as they pay the qualifying fee. 

The Libertarian Party wants to field a full slate of nominees for Georgia’s 14 U.S. House districts in the 2022 general election, according to the lawsuit. To do that, the party would have to pay $73,080 in qualifying fees and submit nominating petitions with at least 360,572 valid signatures. It would cost well over $1 million to pay professional petitioners to gather that many signatures, the lawsuit added.

Statewide Offices Are Easier

However, the Libertarians have been able to run a full slate of nominees for all statewide offices since 1988, without submitting any petition signatures–including candidates for president, U.S. senator, governor, lieutenant governor, secretary of state and attorney general.

That’s because the threshold for ballot access in statewide races in Georgia is much lower: Third-party candidates only need signatures from 1% of active voters to get on the ballot. 

What’s more, once a party gains ballot access–either via petition or from one of its candidates winning at least 1% of the vote in the previous election–all of its nominees for statewide races are automatically added to the ballot, just like the Democratic and Republican nominees. 

People’s House?

The lower house of Congress is called the “People’s House,” because the Constitution’s framers intended it to be uniquely responsive to the will of the people. Even so, it is almost impregnable to third-party and independent candidates. Currently, all 435 members are either Democratic or Republican, after the sole Libertarian, Justin Amash from Michigan, lost his seat in 2021.

And in Georgia, third-party candidates can’t even get on the ballot, much less inside the U.S. House. The state requires more petition signatures than any other state in the nation for U.S. House races – and the qualifying fees, at $5,220 per candidate, are higher than those for any other state that requires third-party or independent candidates to submit nominating petitions, according to the Libertarians’ lawsuit.

The Lawsuit

The state Libertarian Party sued Secretary of State Brad Raffensperger in 2017, arguing that the 5% signature requirement and high qualifying fee for U.S. House races made the ballot-access law unduly onerous, and violated the Constitution’s Equal Protection Clause, the First and Fourteenth Amendments.

“Georgia’s ballot-access restrictions are by far the strictest in the country,” Brian Sells, the Libertarian Party’s attorney told Atlanta Civic Circle. “Voters in Georgia and elsewhere ought to be free to vote for people who are not in the two major parties if they so choose.”

“The rules are made by the Democratic and Republican parties–and most politicians I’ve ever known preferred not to have competition,” Sells added, which makes it hard to dismantle the nearly 80-year-old law. Raffensperger’s office declined to comment.

The Libertarian Party sued the Secretary of State on behalf of prospective third-party candidates and voters who wanted to vote for third-party candidates. One plaintiff, Clayton County resident Martin Cowen, tried unsuccessfully to get on the ballot for the 13th Congressional District race in 2018, and again in 2020. 

For several years, the case bounced back and forth between the federal trial and appeals courts, with each side garnering wins along the way. 

Then, in March 2021, Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia struck down the 5% signature requirement for third-party, U.S. House candidates, ruling that it violates the First and Fourteenth Amendments because it overburdens voters’ “rights to vote and to associate with their preferred political party.”  

But the Secretary of State appealed in September – and in January a three-judge panel of the 11th Circuit reversed May’s ruling.

Undaunted, the Libertarians petitioned the 11th Circuit this week to hear its appeal en banc, before all 12 of its judges. “The three-judge panel got it wrong,” Sells said. He explained that the appellate judges relied too heavily on a Glynn County ballot-access case, where the current district attorney, Keith Higgins, ran as an independent in 2020 and won.

“These kinds of petitions are long shots,” he acknowledged, adding that the 11th Circuit has about 30 days to respond.

Timeline: Cowen v. Raffensperger

Here’s a look at the ballot access case so far:

Nov. 21, 2017: The Libertarian Party of Georgia files a federal lawsuit against Secretary of State Brad Raffensperger over ballot access for third-party candidates running for the U.S. House of Representatives. See it here.

March 29, 2021: In a win for the Libertarians, the federal trial court finds Georgia’s stringent ballot access requirements for U.S. House of Representatives candidates violates the First and Fourteenth Amendments.

Sept. 3, 2021: A federal judge reduces the Georgia qualifying signature requirement from 5% of active voters to 1% for third-party candidates trying to get on the ballot for U.S. House of Representatives races. That’s about 25,000 voters for each of Georgia’s 14 congressional districts.

Jan. 5, 2022: But in a reversal of the lower court’s order, the 11th U.S. Circuit Court of Appeals reinstates the 5% signature requirement, ruling that Georgia’s ballot-access law doesn’t violate voters’ and candidates’ constitutional rights. See it here.

Feb. 23, 2022: The Libertarian Party of Georgia petitions the 11th Circuit to rehear the case en banc by all 12 of its judges. (A panel of three 11th Circuit judges made the January ruling in favor of the Secretary of State.) See it here.

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