PANEL RUSHES DECISION IN 6 DAYS; IGNORES ALL EVIDENCE

On September 5, the U.S. Court of Appeals, 11th circuit, released its decision in Cartwright v Barnes, 02-10670, upholding Georgia ballot access for minor party candidates for the U.S. House of Representatives.

The decision was released six days after the oral argument. There was no reason for the rush; usually decisions take from two to six months, unless there is an emergency.

The decision is only two pages. However, even two pages is enough to show that the panel didn't even know what the Georgia law is. The decision erroneously says that Libertarians in Georgia need to petition for their statewide candidates, and that the statewide petition is 1% of the number of registered voters, and the Libertarians aren't challenging that 1% petition.

Actually, Libertarians in Georgia do not need to petition for statewide office. The party is ballot-qualified in the state, but only for statewide offices. The party has this status because it consistently meets the 1% vote test. The judges, in their summary of the law, didn't even know that Georgia has a 1% vote test; they only mentioned the 20% vote threshold, which determines which parties have ballot status for district and county office as well as statewide office.

The point is important, because the party's success in meeting the vote test demonstrates that its nominees in general have already shown a "modicum of support". Therefore, for their nominees, no petition should logically be required.

The panel did not mention the key fact that the Georgia petition requirement is so difficult, it has existed since 1943 and has never been met by a minor party candidate for U.S. House. The panel commented on this at oral argument, but chose to omit it from the decision.

The panel also did not mention the evidence that Georgia's convoluted congressional district boundaries make petitioning unusually difficult. This evidence was also discussed at the oral argument, but, again, the judges omitted it from the decision.

The only point the decision does discuss is whether a ballot access law that (according to the evidence) is not needed for orderly election administration, is a "qualification" or a "procedure". Under Article One of the original U.S. Constitution, states cannot add to the "qualifications" listed for Congress. Plaintiffs acknowledge that a modest ballot access hurdle is a "procedure", but argue that if the evidence shows that a discriminatory ballot access hurdle is not needed for election administration, then it is not a "procedure".

The uncontradicted evidence showed that Georgia has an average of fewer than two candidates for U.S. House on its general election ballots, so obviously the law isn't needed to prevent the ballot from being too crowded. In the average district, 14,846 valid signatures are required, and there are no instances at which any minor party or independent candidate has ever successfully met a signature hurdle that high, for that office, in U.S. history.

The judges did not acknowledge this evidence. They merely asserted that a petition requirement is always a "procedure".

If the proponents of term limits for Congress had passed an initiative, providing that three-term members of Congress could not get on the ballot without a petition signed by 5% of the registered voters; and yet at the same time providing that other candidates could get on the ballot with just a filing fee, such discriminatory treatment would be held unconstitutional. This is obvious, given the U.S. Supreme Court's February 2001 decision in Cook v Gralike.

Cook v Gralike said that states cannot discriminate against a class of candidates for Congress. In that case, the Court unanimously struck down a Missouri law that gave unfavorable ballot labels to some candidates for Congress, but not others. Candidates who had not supported a constitutional amendment for term limits for congress would have "disregarded voters' instructions" printed on ballots next to their names. Candidates who did support the amendment would have no such damaging label.

How did the 11th circuit distinguish Cartwright v Barnes from Cook v Gralike? The judges didn't mention Cook v Gralike.

The judges also failed to mention that the U.S. Supreme Court has twice said that "there is no litmus test" to determine whether a ballot access law is constitutional or not, and that lower courts must examine all the evidence. In this case, although affidavits were filed with the U.S. District Court, the U.S. District Court refused to allow a trial. The Court of Appeals found no fault in the denial of a trial.

The 11th circuit also failed to mention that the U.S. Supreme Court has twice said that ballot access laws that are rarely used are probably unconstitutional.

The decision is unsigned, but it will be published. The three judges on the panel are John Gibson, a visiting judge from Missouri and a Reagan appointee; Peter Fay, a Ford appointee from Florida; and Frank M. Hull, a Clinton appointee from Georgia. Judge Hull is a woman (notwithstanding her first name, which misleads many people into believing she is a man) and has the reputation of being the most liberal judge on the 11th circuit.

On September 12, plaintiffs asked for a rehearing en banc.

Also on September 12, the Secretary of State announced that the only candidate who even tried to get on the ballot for U.S. House this year, Wayne Parker of the Libertarian Party, did not have enough valid signatures. He needed 9,462 signatures, but was told that he had only 8,346 valid. He had submitted almost 18,000.

Parker's requirement was 3.3% of the number of registered voters, not the normal 5%. This was because he had won a lawsuit on July 30, Parker v Barnes. For 2002 only, the normal 5% had been reduced, on the grounds that the full petitioning period had not been available this year, due to late redistricting. Even the more relaxed 3.3% standard proved impossible for anyone to comply with.