More fuel for the fire from the fine folks over at Ballot Access News! Please note the last paragraph.

Federal Court Upholds Georgia Ballot Access Law for Independent U.S. House Candidates
May 27th, 2009

On May 26, U.S. District Court Judge Robert L. Vining upheld Georgia’s ballot access law for independent candidates for U.S. House. Coffield v Handel, 1:08-cv-2755. The 3-page decision is here. It says that the U.S. Supreme Court upheld the same law in 1971 in Jenness v Fortson.

The decision does not mention the fact that the law is so strict, no independent candidate for U.S. House has completed the 5% petition since 1964, and back then, all congressional districts fit within county boundaries, so it was much easier to get high validity rates for district petitions (signers generally know what county they live in, but not which congressional district they live in). The decision does not mention any other U.S. Supreme Court decision.

The decision does not acknowledge that the reason the U.S. Supreme Court upheld the Georgia law in 1971 was that statewide 5% petitions had succeeded in Georgia in both 1966 and 1968. The decision does not mention three later U.S. Supreme Court decisions that say lower courts should invalidate ballot access requirements if the record shows that virtually no one ever meets those requirements. Faye Coffield will appeal to the 11th circuit.

A nice refreshing discussion of one of the more onerous bits of the Georgia Code. Since we’re getting wonkish and bandwidth is still untaxed, I’ve taken the liberty to provide a copy of the code section in question for your reading enjoyment. The phrase “Such petition shall be in the form prescribed by the officers with whom they are filed” seems to be me to indicate that the SoS has the authority to modify the petitioning process on her own accord. I invite you all to read the code for yourselves and draw your own conclusions. Courtesy of LexisNexis:

The Georgia code section in Question:

GEORGIA CODE
Copyright 2008 by The State of Georgia
All rights reserved.

*** Current through the 2008 Regular Session ***

TITLE 21. ELECTIONS
CHAPTER 2. ELECTIONS AND PRIMARIES GENERALLY
ARTICLE 4. SELECTION AND QUALIFICATION OF CANDIDATES AND PRESIDENTIAL ELECTORS
PART 3. NOMINATION AND QUALIFICATION OF INDEPENDENT CANDIDATES, CANDIDATES OF POLITICAL BODIES, AND PRESIDENTIAL ELECTORS

O.C.G.A. § 21-2-170 (2008)

§ 21-2-170. Nomination of candidates by petition; form of petition; signatures; limitations as to circulation and amendment of petitions; listing of such candidates on ballots; charter or ordinance authorization

(a) In addition to the party nominations made at primaries, nominations of candidates for public office other than municipal office may be made by nomination petitions signed by electors and filed in the manner provided in this Code section, and such nomination by petition may also be made for municipal public office if provided for by the municipality’s charter or by municipal ordinance. Such petition shall be in the form prescribed by the officers with whom they are filed, and no forms other than the ones so prescribed shall be used for such purposes, but such petitions shall provide sufficient space for the printing of the elector’s name as well as for his or her signature. In addition to the other requirements provided for in this Code section, each elector signing a nomination petition shall also print his or her name thereon.

(b) A nomination petition of a candidate seeking an office which is voted upon state wide shall be signed by a number of voters equal to 1 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. A nomination petition of a candidate for any other office shall be signed by a number of voters equal to 5 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. However, in the case of a candidate seeking an office for which there has never been an election or seeking an office in a newly constituted constituency, the percentage figure shall be computed on the total number of registered voters in the constituency who would have been qualified to vote for such office had the election been held at the last general election and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected.

(c) Each person signing a nomination petition shall declare therein that he or she is a duly qualified and registered elector of the state, county, or municipality entitled to vote in the next election for the filling of the office sought by the candidate supported by the petition and shall add to his or her signature his or her residence address, giving municipality, if any, and county, with street and number, if any, and be urged to add the person’s date of birth which shall be used for verification purposes. No person shall sign the same petition more than once. Each petition shall support the candidacy of only a single candidate, except any political body seeking to have the names of its candidates for the offices of presidential electors placed upon the ballot through nomination petitions shall not compile a separate petition for each candidate for such office, but such political body shall compile its petitions so that the entire slate of candidates of such body for such office shall be listed together on the same petition. A signature shall be stricken from the petition when the signer so requests prior to the presentation of the petition to the appropriate officer for filing, but such a request shall be disregarded if made after such presentation.

(d) A nomination petition shall be on one or more sheets of uniform size and different sheets must be used by signers resident in different counties or municipalities. The upper portion of each sheet, prior to being signed by any petitioner, shall bear the name and title of the officer with whom the petition will be filed, the name of the candidate to be supported by the petition, his or her profession, business, or occupation, if any, his or her place of residence with street and number, if any, the name of the office he or she is seeking, his or her political body affiliation, if any, and the name and date of the election in which the candidate is seeking election. If more than one sheet is used, they shall be bound together when offered for filing if they are intended to constitute one nomination petition, and each sheet shall be numbered consecutively, beginning with number one, at the foot of each page. Each sheet shall bear on the bottom or back thereof the affidavit of the circulator of such sheet, which affidavit must be subscribed and sworn to by such circulator before a notary public and shall set forth:

(1) His or her residence address, giving municipality with street and number, if any;

(2) That each signer manually signed his or her own name with full knowledge of the contents of the nomination petition;

(3) That each signature on such sheet was signed within 180 days of the last day on which such petition may be filed; and

(4) That, to the best of the affiant’s knowledge and belief, the signers are registered electors of the state qualified to sign the petition, that their respective residences are correctly stated in the petition, and that they all reside in the county or municipality named in the affidavit.

No notary public may sign the petition as an elector or serve as a circulator of any petition which he or she notarized. Any and all sheets of a petition that have the circulator’s affidavit notarized by a notary public who also served as a circulator of one or more sheets of the petition or who signed one of the sheets of the petition as an elector shall be disqualified and rejected.

(e) No nomination petition shall be circulated prior to 180 days before the last day on which such petition may be filed, and no signature shall be counted unless it was signed within 180 days of the last day for filing the same.

(f) A nomination petition shall not be amended or supplemented after its presentation to the appropriate officer for filing.

(g) Only those candidates whose petitions are accompanied by a certificate sworn to by the chairperson and secretary of a political body duly registered with the Secretary of State as required by Code Section 21-2-110, stating that the named candidate is the nominee of that political body by virtue of being nominated in a convention, as prescribed in Code Section 21-2-172, shall be listed on the ballot under the name of the political body. All petition candidates not so designated as the nominee of a political body shall be listed on the ballot in the independent column.

(h) Notwithstanding the provisions of this Code section, candidates for municipal offices may be nominated by petitions as provided for in this Code section only if the municipality authorizes such nominations by petitions in its charter or by ordinance.

HISTORY: Ga. L. 1922, p. 97, § 3; Code 1933, § 34-1904; Ga. L. 1943, p. 292, § 1; Ga. L. 1962, p. 618, § 1; Code 1933, § 34-1010, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1968, p. 257, § 1; Ga. L. 1968, p. 871, § 7; Ga. L. 1970, p. 347, § 13; Ga. L. 1974, p. 4, § 3; Ga. L. 1975, p. 861, § 1; Ga. L. 1979, p. 616, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1986, p. 890, § 3; Ga. L. 1987, p. 34, § 1; Ga. L. 1990, p. 243, § 4; Ga. L. 1991, p. 133, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 23, § 2; Ga. L. 2001, p. 240, § 12.