Resolving the Ambiguity: How Cowen v. Ga. Sec'y of State Helps Third Parties Climb Georgia's Steep Mountain of Ballot-access Restrictions

• Publication year: 2021

Resolving the Ambiguity: How Cowen v. Ga. Sec'y of State Helps Third Parties Climb Georgia's Steep Mountain of Ballot-Access Restrictions

Sean Callihan

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Resolving the Ambiguity: How Cowen v. Ga. Sec'y of State Helps Third Parties Climb Georgia's Steep Mountain of Ballot-Access Restrictions^*

I. Introduction

Minor political parties are rejoicing and celebrating a significant victory¹ in Cowen v. Ga. Sec'y of State,² as a stepping stone in loosening Georgia's rigorous ballot-access restrictions.³ Georgia's rigorous 5% petition requirement is one of the highest barriers in the nation for a political body to overcome, a barrier that has never been breached in Georgia since its adoption in 1943.⁴ In Cowen, the United States Court of Appeals for the Eleventh Circuit held the United States District Court for the Northern District of Georgia erred by granting summary judgment in favor of Georgia's Secretary of State without applying the test established in Anderson v. Celebrezze⁵ to determine Cowen's

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associational rights violation claim under the First and Fourteenth Amendments.

The case was remanded to the district court for the court to apply the Anderson test in determining whether Georgia's five percent signature ballot-access restriction violated Cowen's associational rights.⁶ The Anderson test is a multi-step process for evaluating the constitutionality of ballot-access requirements under the First and Fourteenth Amendments.⁷ The ruling in Cowen has implications for the future of Georgia's rigorous ballot-access requirements and may lead to the emergence of third-parties within the context of the entrenched two-party system in the state.

II. Factual Background

The Cowen case arose from challenges by the Libertarian Party of Georgia to Georgia's ballot-access laws for congressional candidates; interested voters and several prospective Libertarian candidates for Congress collectively brought suit alleging the Georgia's ballot-access requirements were unconstitutional. In this suit, the Libertarian Party ("Party") alleged Georgia's ballot-access restrictions were unconstitutional as a violation of the Party's associational rights under the First and Fourteenth Amendments as well as a violation of the Party's Equal Protection rights⁸ under the Fourteenth Amendment. The Party contended that Georgia's ballot-access requirements are so rigorous as to preclude the viability of a third-party candidate and are therefore unconstitutional.⁹

In its motion for summary judgment, the Party introduced evidence that demonstrated a requisite of 321,714 valid signatures of registered voters were necessary for a third-party to run a full slate of candidates to get on Georgia's ballot in a federal election. Additionally, the Party provided evidence that a third-party candidate had never successfully petitioned themself onto the ballot despite the attempts of at least twenty candidates since 2002. Furthermore, the Party provided evidence highlighting the pragmatic difficulties of gathering signatures: "the alleged[] error-prone signature-checking process," its inability to access voters, voters' concerns of disclosing confidential information on

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the nominating petition, and the substantial cost of petitioning. The latter is particularly burdensome since federal campaign finance laws prohibit candidates from receiving funds from the national party to help alleviate the costs.¹⁰

Despite noting "a robust record," and that "the Party raised 'some compelling arguments,'" the district court held it was unnecessary to utilize the Anderson test to address constitutional challenges to Georgia's ballot-access restrictions.¹¹ It concluded that Jenness v. Fortson¹² had decided the issue and created a per se preclusion to any future challenges of Georgia's ballot-access restrictions. The district court also declined to address the Party's Equal Protection challenge.¹³ The appellate court reversed the northern district court's grant of summary judgment in favor of Georgia's Secretary of State.

III. Legal Background

A. Georgia's Election Statutes

In Georgia, a political party is a political organization that has acquired at least twenty percent of the total votes in the last gubernatorial election¹⁴ or at least twenty percent of the electors polled from the total votes of the last presidential election.¹⁵ Political organizations unable to meet this threshold are known as a "political body" under Georgia law.¹⁶ Candidates of a political body are guaranteed ballot-access if they are able to submit a nomination petition signed by the number of registered voters proportionate to the population of voters eligible to vote in the previous election upon the office that a third-party is seeking.¹⁷ Additionally, it is necessary for the candidate to submit a petition certified by a sworn chairperson and secretary of a political body that is registered with Georgia's Secretary

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of State, certifying that the nominee of a political body was nominated by virtue of a convention.¹⁸

In 1922, Georgia's legislature enacted its first formal ballot-access restrictions. They required candidates of a minor party for national and statewide offices to file notice of their candidacy by "giving their names and the offices for which they are candidates, with the Secretary of State," but did not require any petition or fee.¹⁹ In 1943, the legislature amended its ballot-access laws by imposing heightened third-party requirements, allowing access: "(1) if the political party received 5 percent of the votes in the last general election for the office in question, which guaranteed ballot access; or (2) by gathering petitions signed by 5 percent of all the registered voters in the state or district."²⁰ In 1986, the legislature substantially reduced the signature and vote requirements for third-party candidates seeking statewide positions, but kept the five percent requisite for federal and non-statewide elections.²¹

Thus, a candidate of a political body seeking a statewide position is only required to obtain one percent of the total registered voters eligible to vote in the last election; whereas candidates seeking federal or non-statewide positions are still required to obtain five percent of the total registered voters statewide or within their districts.²² Finally, a candidate of a political body seeking the office of the presidency of the United States must prove the political body either received one percent of the total number of registered voters in the preceding election, or submit a petition signed by at least 7,500 registered voters.²³

B. The Establishment of the Anderson Test under the First and Fourteenth Amendment

Cowen breathed new life into the Anderson test for political bodies challenging Georgia's electoral ballot-access restrictions. This test has an interesting history. Prior to Anderson, the Supreme Court of the United States and lower courts determined a claim for an associational

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rights violation by evaluating whether the severity of the restrictions imposed by state law infringed on a minor political organization's associational rights, but there was no specific approach defined for this analysis.²⁴

For example, in the 1968 decision of Williams v. Rhodes,²⁵ a third-party candidate successfully challenged Ohio's ballot-access restrictions that required a third party to submit petitions containing signatures from a number of qualified voters that equaled fifteen percent of the number of persons who voted in the preceding gubernatorial election. The United States Supreme Court struck down the statute as a violation of the First Amendment and Equal Protection Clause.²⁶ The Court held that freedom of association was protected by the First Amendment and that the Fourteenth Amendment prevented the states from infringing on this right.²⁷ For the first time, the Court held that state laws preventing ballot-access by minor political parties were unconstitutional.²⁸

Additionally, the Court held that the right of individuals to advance political beliefs regardless of their political persuasion and the right of individuals to cast their votes effectively rank among the "most precious freedoms."²⁹ Any other freedoms were worthless if the right to vote was undermined by the implementation of rigorous ballot-access restrictions.³⁰ However, the Court did not provide guidance for future courts to use in evaluating a third party's associational rights claim.

In 1971, the United States Supreme Court upheld Georgia's five percent signature requirement in Jenness, concluding that Georgia's electoral requirements did not "freeze[] the status quo," of a duopolistic two-party system and did not abridge the rights of free speech and association guaranteed by the First and Fourteenth Amendments.³¹ The Court did not provide guidance in evaluating the validity of future claims of associational rights violations by minor political organizations.³²

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Instead, the Court in Jenness distinguished the purpose of Georgia's electoral requirements from that in Williams, holding that the purpose of Ohio's law was the creation of a two-party duopoly, exclusively comprised of Republicans and Democrats.³³ Justice Stewart distinguished the two statutes by noting that Georgia's statutes recognized write-in votes, provided a reasonable deadline, recognized independent candidates, and did not require signees of the petitions to affirm whether they intended to vote for that candidate.³⁴ However, once again, the Court did not provide any guidance for the lower courts to utilize in evaluating associational rights violation claims.

A decade later, in Anderson, the United States Supreme Court provided a three-pronged balancing test for lower courts to use in evaluating minor parties' challenges to the constitutionality of ballot-access requirements.³⁵ In a 5-4 decision, the Court struck down an Ohio ballot-access deadline because of the...