Cartwright v. Barnes, 02-10670.

• Decision Date: 05 September 2002
• Docket Number: No. 02-10670.,02-10670.
• Citation: 304 F.3d 1138
• Parties: Michael CARTWRIGHT, Gary Holder, et al., Plaintiffs-Appellants, v. Roy BARNES, Governor of the State of Georgia, Cathy Cox, Secretary of State of the State of Georgia, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1138

304 F.3d 1138

Michael CARTWRIGHT, Gary Holder, et al., Plaintiffs-Appellants, v. Roy BARNES, Governor of the State of Georgia, Cathy Cox, Secretary of State of the State of Georgia, Defendants-Appellees.

No. 02-10670.

United States Court of Appeals, Eleventh Circuit.

September 5, 2002.

Walker Lawrence Chandler, Zebulon, GA, for Plaintiffs-Appellants.

Elizabeth D. Redisch, Dennis R. Dunn and Rebecca Mick, GA Dept. of Law, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before HULL, FAY and GIBSON^*, Circuit Judges.

PER CURIAM:

The Appellants are the Libertarian Party of Georgia, members of the Libertarian Party who want to run for election to the United States House of Representatives in several Georgia districts, and voters from these districts who intend to vote for the Libertarian Party candidates. The Appellants challenge Georgia's requirement in O.C.G.A. § 21-2-170(b) (Supp.2002) that a candidate from a political body may appear on an election ballot if the candidate obtains signatures in a nominating petition from at least 5% of the registered voters.¹ The main issue in this case is whether this 5% signature requirement creates a new qualification for holding federal office in violation of the Qualifications Clause of the United States Constitution.

After review and oral argument, we agree with the district court that Georgia's 5% signature requirement in § 21-2-170(b) merely regulates the manner of holding elections and does not impose on candidates, or constitute, a qualification for office in violation of the Qualifications Clause. As the district court aptly found, the signature requirement "imposes no substantive qualification on a class of potential candidates for office; rather, it merely requires that the potential candidate demonstrate a substantial basis of support" from the community. We also conclude that this 5% signature requirement does not violate any other constitutional provision.

DISCUSSION

A. Georgia Election Law

Under Georgia law, a political party is any political organization whose candidate received 20% of the vote cast in the state in the immediately preceding Gubernatorial or Presidential election. O.C.G.A. § 21-2-2(25). A candidate may appear on the election ballot if he or she is nominated in a primary conducted by a political party. O.C.G.A. § 21-2-130(1) (Supp.2002).

However, the name of an independent candidate or a candidate of a political body may appear on the election ballot if he or she submits a nomination petition signed by a specified percentage of voters depending on the type of election being conducted. O.C.G.A. § 21-2-170(a) & (b) (Supp.2002). The Libertarian Party of Georgia concedes that it is classified as a political body for purposes of O.C.G.A. § 21-2-2(23), which means that it is any political organization other than a political party. Where a candidate of a political body is seeking statewide public office, the petition must be signed by a number of voters equal to 1% of the total number of registered voters that were eligible to vote in the last election for such office. O.C.G.A. § 21-2-170(b) (Supp.2002) & § 21-2-180. Where, as here, the candidate of a political body is seeking federal office (or any non-statewide office), the petition must be signed by a number of voters equal to 5% of the total number of registered voters eligible to vote in the last election for such office. O.C.G.A. § 21-2-170(b) (Supp.2002). Specifically, § 21-2-170(b) provides that:

A nomination petition of a candidate for any [non-statewide] 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.

O.C.G.A. § 21-2-170(b) (Supp.2002). It is this 5% requirement that Appellants challenge in this case.

Appellants do not challenge the 1% requirement for statewide elections, which requires them to obtain approximately 39,000 signatures.² Instead, Appellants challenge only the 5% requirement for congressional offices, which their complaint alleges requires them to collect approximately 14,846 valid and verifiable signatures of elections in a single Congressional district. Appellants' complaint asserts that no Libertarian Party candidate has ever been able to petition for ballot access in a Congressional race since 1943.³

B. Jenness v. Fortson

In support of their challenges to this requirement, Appellants first acknowledge the decision in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), where the United States Supreme Court rejected a constitutional challenge to the same Georgia law over thirty years ago. In Jenness, the Supreme Court stated that "[t]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot — the interest ... in avoiding confusion, deception, and even frustration of the democratic process at the general election." Id. at 442. The Supreme Court compared Georgia's 5% signature requirement with the Ohio election law struck down in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). The Ohio law barred write-in voting, required nominees to be endorsed by a political party established enough to participate in the state primary, and created a 15% signature requirement that candidates were required to fulfill "unreasonably early." Jenness, 403 U.S. at 436-38, 91 S.Ct. 1970. In comparison, Georgia's 5% signature requirement, in the context of the "open quality of the Georgia system," was not unconstitutional. Id. at 439-40, 91 S.Ct. 1970.

After acknowledging Jenness, the Appellants argue in this case that Georgia's new notarization requirement and its new congressional districts have changed the Georgia system so much that Jenness no longer applies. We disagree. In upholding the validity of the Georgia system over thirty years ago in Jenness, the Supreme Court noted that "Georgia impose[d] no suffocating restrictions whatever upon the free circulation of nominating petitions." Id. at 438, 91 S.Ct. 1970. The Supreme Court observed that under the Georgia system:

A voter may sign a petition even though he has signed others, and a voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. The signer of a petition is not required to state that he intends to vote for that candidate at the election. A person who has previously voted in a party primary is fully eligible to sign a petition, and so, on the other hand is a person who was not even registered at the time of a previous election.

Id. at 438-39, 91 S.Ct. 1970 (citations omitted). The Supreme Court also noted that "[n]o signature on a nominating petition need be notarized" under the Georgia system. Id. at 439, 91 S.Ct. 1970.

Under the current Georgia system, it is still true that no signature on a nominating petition need be notarized. The new notarization requirement to which the Appellants referred provides that an individual circulating a petition sheet submit a sworn affidavit before a notary public attesting that, among other things, "each signer manually signed his or her own name with full knowledge of the contents of the nomination petition." O.C.G.A. § 21-2-170(d)(2) (Supp.2002). The notarization requirement places no restriction upon the ability of a voter to sign a petition.

The Appellants' complaint also alleges that the 5% requirement is no longer acceptable because petitioning experience shows that voters cannot identify correctly their respective congressional districts, especially after reapportionment, thereby requiring petition circulators to acquire surplus signatures. Even accepting Appellants' allegations, we conclude that, like the notarization requirement, reapportionment has not imposed any "suffocating restrictions" upon the free circulation of nominating petitions. Reapportionment arguably may lead to some voter confusion and may place an extra burden on candidates to be sure that they have obtained the requisite 5%. Even so, this does not make the 5% requirement unduly burdensome for independent candidates. In Georgia, as Jenness notes, petition circulators have ample time to obtain signatures — about six months. 403 U.S. at 438, 91 S.Ct. 1970; O.C.G.A. § 21-2-170(d)(3) (Supp.2002). Furthermore, no harm results if a voter accidentally signs the wrong petition, as "[a] voter may sign a petition even though he has signed others." Jenness, 403 U.S. at 438-39, 91 S.Ct. 1970. Also, the boundaries of the districts are known to the petition circulators who readily can ask voters where they reside and thereby ascertain if they reside in the district. In short, Appellants fail to establish that Jenness no longer applies.

Appellants also stress that no Libertarian Party candidate has ever been able to satisfy the 5% requirement for ballot access. But Jenness directly addressed the 5% figure, stating as follows:

The 5% figure is, to be sure, apparently somewhat higher than the percentage of support required to be shown in many States as a condition for ballot position, but this is balanced by the fact that Georgia has imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many nominating petitions as he wishes. Georgia in this case has insulated not a single potential voter from the appeal of new political voices within its borders.

Id. at 442, 91 S.Ct. 1970 (citation omitted). In sum, we conclude the following analysis in Jenness still equally pertains today, to wit:

The fact is, of course, that from the point of view of one who aspires to elective public office...