Independent, Coffield, to Appeal Ballot Access Ruling

By Matthew Cardinale, News Editor, The Atlanta Progressive News (June 21, 2009)

(APN) ATLANTA -- A federal judge has ruled against independent candidate Faye Coffield, who in 2008 lost in her struggle to gain ballot access in Georgia's 4th US Congressional District race against US Rep. Hank Johnson (D-GA).

Coffield and her attorneys plan to appeal to the federal Court of Appeals of the 11th Circuit.

As previously reported by Atlanta Progressive News, Coffield's lawsuit claimed that Georgia's ballot access laws for third parties and independents in US Congressional District races are too restrictive.

The current law "requires that an independent candidate for a Congressional seat submit a petition containing the signatures of at least five percent of the total number of registered voters in the previous election in order to be included on the ballot," the judge's order, dated May 26, 2009, obtained by Atlanta Progressive News, says.

In the 2008 election, that meant Coffield had to collect 15,061 signatures to get on the ballot.

No candidate in history has ever gathered that many signatures, Richard Winger of Ballot Access News told APN. "In the entire history of the US House, no candidate has ever overcome a petition requirement or hurtle harder than 13,300 signatures," he said.

Coffield was only able to gather about 3000. "In Tennessee I would’ve needed 25. In Mississippi, I would’ve needed 200," Coffield said, noting other states have much less restrictive ballot access laws than Georgia.

Senior US District Judge Robert Vining ruled in his order that the law in question had already been upheld in previous court cases.

"The plaintiffs' case is foreclosed by Jenness v. Fortson... (1971) in which the Supreme Court specifically upheld the five percent requirement of this code section. More recently, the Court of Appeals for the Eleventh Circuit upheld this identical provision in Cartwright v Barnes... (2002)," Vining wrote.

"They're supposed to read both sides," Winger said. "I don't even think the judge read our brief."

Winger said that while indeed there had been previous rulings upholding the Georgia law, that those rulings were in cases where the plaintiffs were not actual candidates who had attempted to get on the ballot. Therefore, because Coffield is the first candidate in Georgia history to both try to petition and challenge the constitutionality of the law, he does not believe Jenness v. Fortson is applicable.

Winger said Jenness v. Fortson also dealt with a different law, Georgia's statewide ballot access law, not the law for Congressional District races.

Moreover, "the facts were that [in 1971] it had just been used recently so it wasn't so hard. It had been used in 1966 and 1968, but the situation was different because the boundaries were not so complicated for US House races."

Since the Georgia legislature began gerrymandering Congressional Districts of very odd shape, voters often do not know what Congressional district they are in. Thus, when candidates have to get signatures from registered voters in a specific Congressional District, many signatures end up disqualified because people do not realize their District boundaries have changed. The Districts used to include complete countries, but now they include parts of various counties.

Coffield's attorneys are Gary Sinawski of Brooklyn, New York, and Walker Chandler of Zebulon, Georgia.

Georgia Secretary of State Karen Handel is the Defendant, and she is represented by Georgia’s Attorney General Thurbert Baker, Deputy Attorney General Dennis Dunn, Senior Assistant Attorney General Stefan Ritter, and Assistant Attorney General Penny Hannah.

GEORGIA'S BALLOT ACCESS LAWS SEEN AS BURDENSOME

The ballot access laws are so stringent, "no independent candidate for the United States House of Representatives has met Georgia’s five-percent requirement since 1964, and no minor party candidate for the United States House of Representatives has ever met the five-percent requirement," Coffield’s attorneys wrote in their complaint.

"In adjudicating the constitutionality of petition-signature requirements for independent candidates, the Supreme Court has directed that trial courts inquire whether or not 'a reasonably diligent independent candidate [could] be expected to satisfy the signature requirement, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot?'" Coffield’s attorneys wrote, citing a case, Storer v Brown (1974).

"Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter it they have not," justices wrote in Storer v. Brown.

In the recent US Supreme Court case involving Indiana’s voter ID law, Conservative Justices Scalia, Alito, and Thomas invoked the same principle, according to Coffield’s attorneys as well as Richard Winger.

"We reminded them the Supreme Court said the validity of a law is whether it has been used," Winger said. If no one has ever gathered the necessary signatures, the law has not been used.

"Furthermore, just this year, Justice Scalia wrote a concurrence where he reminded everybody that in 1974 that ballot access laws are unconstitutional if they're never used. If nobody can ever do it, obviously it's too hard. That's why this law is in trouble, it hasn't been used since 1964," Winger said.

The judge ruled that Scalia's statement did not change the standard of review because it was not part of a majority opinion.

However, Winger noted that Coffield had never argued that Scalia's statement had changed the standard of review; simply, that it was one recent example in a series of cases where justices had argued that the standard of constitutionality for ballot access laws is whether a candidate is, in reality, ever able to use the law to get on the ballot.

"The state claimed in their brief that we were claiming when Scalia reminded everyone last year about the usage test, that we were claiming it changed the standard of review. We never claimed that. We were just pointing out the court still believes in the usage test, even Scalia," Winger said.

"The state made a claim about our brief that wasn't true and the judge repeated it."

Coffield and her attorneys argue that the law does not serve any compelling state interest except to keep minority parties off the ballot.

"That's the only one-- that's not a legitimate interest," Sinawski told APN.

"It makes no sense limiting our access to the ballot. It's too many people that want to run for office that can't run because they don't want to run as a Democrat or a Republican," Coffield said.

"What harm does it do to have everyone's name who wants to be on the ballot? In California, when Schwarzenagger ran, there were 110 people on the ballot and the people they said would be the top 5 were the top 5. It's the foolishness and backwardness of the state [Georgia]," Coffield said.

The only other way for a political body to get on the ballot, without a petition or obtaining party status, is to obtain at least 1% of the vote in a previous statewide election for a candidate on the ballot.

The Libertarian Party has been able to get on the ballot that way in the past several elections and that is why they were able to run a US Senate candidate in 2008, as it was a statewide race.

As previously reported by Atlanta Progressive News, Democrats and Republicans have not in recent decades had to obtain nominating petitions for any office in Georgia because they typically meet the status of political parties in Georgia, perpetually having been able to obtain at least 20% of the vote in a statewide or national election.

About the author:

Matthew Cardinale is the News Editor for The Atlanta Progressive News and is reachable at matthew@atlantaprogressivenews.com.

Revised syndication policy:

Our syndicaton policy was updated June 2007. For more information on how to syndicate Atlanta Progressive News content, please visit: http://www.atlantaprogressivenews.com/extras/syndicate.html