The rules related to ballot access in Georgia are shifting. This article is intended to share a bit of background to help readers understand some of the history which brought us to this moment, focusing on the litigation and legislation which have moved this story along.
On the way to the 2012 Presidential Nominating Convention which named Jill Stein as our nominee (for the first time), and at the urging of our 2008 Presidential nominee Cynthia McKinney, the Georgia Green Party
became a plaintiff in a lawsuit which finally cracked a logjam which is rooted in the state’s’ Jim Crow history of suppressing and excluding black voters from the process.
The barriers we face to our participation in Georgia elections were adopted in 1943. The Texas (Smith v Alright, 131 F.2d 593, 321 U.S. 649 (1944)) and Georgia (King v Chapman, 62 F. Supp. 639 (M.D. Ga. 1945), 154 F.2d 460 (5th Cir. 1946), 327 U.S. 800 (1946)) cases used by the Courts to strike down the all-white primaries were already being formulated as part of a litigation strategy to challenge black voters exclusion. Heading into the war years the black press across the country were agitating on a Double-V-for-Victory campaign, advocating victory over fascism abroad and victory over racism here at home. It was not until the 1944 Primary before Primus King, president of the Muscogee Branch of the NAACP, would bring suit against Joseph Chapman, then chair of the Muscogee County Democratic Party Executive Committee for denying him an opportunity to participate in their party’s primary. But it was already well known that such a challenge was coming when the Georgia Assembly, intent on creating new ways to keep Communists and Republicans (black voters) off of the Georgia ballot, adopted the 5% signature requirement now known as 21-2-170.
During the 60’s the Republicans, supported by a national apparatus, worked to comply with the requirement and finally qualified under Georgia law as a political party, eligible for state financed primaries.
In 1973, the U.S. Supreme Court handed down a decision in a case now known as Jenness v Fortson (403 U.S. 431 (1973)) (oral arguments before the U.S. Supreme Court). Ben W. Fortson was then the Secretary of State of Georgia. Jenness (a candidate for Governor of Georgia) was one of three candidates (the others for the US House) named by the Socialist Workers Party who had brought this case in 1970. Their suit sought a court finding that the 14th Amendment’s ‘Equal Protection’ clause prohibits the disparate treatment around access to the ballot faced by emerging political parties, known as political bodies under Georgia law, as compared to the corporate parties.
The U.S. Supreme Court found that it was constitutional to require a showing of a ‘modicum of support’ by a new political party, as a condition for being listed on the ballot. Further, without any evidentiary record, they found that the 5% signature did not “freeze the political status quo”, and that the requirement was not an unconstitutional barrier to ballot access. The SWP candidates had never attempted a petition drive, but had sought a declaration that the challenged statute was unconstitutional on its face.
The Johnson Administration’s Voting Rights Act and the Poll Tax amendment to the US Constitution made strides against the voter suppression of the Jim Crow era without ever touching the ballot access barriers which had been enacted across the old Confederate South.
In the 1980’s the Libertarians spent plenty of money to demonstrate that collecting the signatures of 5% of the voters statewide was, even then at half our population, a prohibitive hurdle to overcome. They took a preliminary victory in court to the General Assembly where they used it to leverage the first substantive change since the ballot access barriers were adopted in 1943. The 1986 change was to ‘bifurcate’ the statute (OCGA 21-2-170) preserving the 5% rule for all other offices, but setting a new standard of 1% for candidates seeking statewide office. They also won enactment of a new statute (OCGA 21-2-180 et seq), providing that a political ‘body’ can circulate a unified petition for the signatures of 1% of Georgia voters state-wide, and by doing so run a slate of all candidates for all state-wide offices. Section 180 also created a ballot retention rule used to determine when a political body’s showing at the polls would mean they would be relieved of a requirement to circulate petitions for a subsequent election cycle.
The case law governing ballot access for U.S. elections continued to evolve in significant ways, just not in Georgia or in the 11th District. Ballot access litigation brought by Georgia parties and candidates in the 90’s was decided to preserve the ballot access barriers we face.
It took four years for the 2012 case initiated on the state party’s behalf by former Congresswoman McKinney, to reach a final resolution. First the case had to be dismissed by the trial court, appealed to the 11th Circuit, remanded back to the District Court, undergo nearly a year of discovery (affidavits and depositions) and oral arguments before Judge Richard Story issued his 80 page Order on March 17th, 2016. Even still the state took an appeal back to the 11th, before finally giving up on this case.
It was St. Patrick’s Day and Cynthia McKinney’s birthday, and a joyous day for the Georgia Greens. Judge Story ruled that the 1% signature barrier was, both on its face, and as applied, an unconstitutional barrier to the right of Georgia voters disposed to vote Green to seeing our candidate for President of the United States on the Georgia ballot. Pending further action by the state Assembly, he ordered as an interim remedy that instead of the 65k+ signatures required under the 1% rule, we would be required to file 7,500 signatures instead.
The case is published as Georgia Green Party v Kemp (who was still Secretary of State at the time). 171 F.Supp.3d 1340 (2016).
In 2020 we again brought litigation, this time to challenge the barriers as they manifest under pandemic conditions. The night before the Judge heard oral arguments on our case, the Governor extended his executive order related to the Public Health State of Emergency to run until August 11th, 2020, only three days before our filing deadline.
Although the covid / ballot access litigation in Georgia was the first of its kind filed nationwide, political parties and candidates in many other states won relief earlier with decisions which gave us hope with their orders allowing online petitions and significant relief in the required signature count. Our pleadings and attorney had argued that Judge Ross should enjoin enforcement altogether, or at least pro-rate the signatures required based on the number of days we had to petition without posing a public health risk. She agreed with us that the public health crisis entitled us to relief, but otherwise ignored our proposed remedy. She accepted the position of the Secretary or State, that no more than a 30% reduction could be justified under the “state’s interest” in avoiding an “over-crowded ballot” or the inclusion on the ballot of “frivolous candidates”.
A 30% reduction of a 7,500 signatures threshold to put our Presidential slate on the ballot in 2020 means that this year it will take only 5,250 signatures to meet our goal.
[[ EDITOR’S NOTE: this summary represents an incomplete look at this fascinating and complex history. I hope to return to this article and flesh out what I have learned about these questions, adding links to source material in the weeks and years to come. ]]