Cowen v. Raffensperger
| Decision Date | 29 March 2021 |
| Docket Number | CIVIL ACTION NO. 1:17-CV-04660-LMM |
| Citation | 537 F.Supp.3d 1327 |
| Parties | Martin COWEN, et al., Plaintiffs, v. Brad RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Bryan Ludington Sells, The Law Office of Bryan L. Sells, LLC, Atlanta, GA, for Plaintiffs.
Charlene S. McGowan, Office of the Georgia Attorney General, Cristina Correia, Georgia Department of Law Department of Law, Atlanta, GA, for Defendant.
This case comes before the Court on Plaintiffs' Second Motion for Summary Judgment [134], Defendant's Second Motion for Summary Judgment [135], and Defendant's Motion to Exclude Expert Witness [137]. The Court previously granted Defendant's first motion for summary judgment. See Dkt. No. [113]. On appeal, the Eleventh Circuit vacated that decision and remanded to this Court. See Cowen v. Ga. Sec'y of State, 960 F.3d 1339, 1340 (11th Cir. 2020). The parties then filed the present Motions. After considering the Eleventh Circuit's decision, the parties' briefs, and the evidence in the record, the Court enters the following Order:
I. FACTUAL BACKGROUND
This case is a constitutional challenge to Georgia's ballot-access restrictions for third-party and independent candidates seeking election to the United States House of Representatives. Plaintiffs are the Libertarian Party of Georgia, prospective Libertarian candidates, and Libertarian voters. Plaintiffs seek injunctive relief and a declaration that Georgia's ballot-access restrictions (1) unconstitutionally burden Plaintiffs' rights under the First and Fourteenth Amendments and (2) violate the Equal Protection Clause of the Fourteenth Amendment. See Dkt. No. [1] ¶¶ 148–52.
Georgia enacted its first ballot-access law in 1922, which provided that an independent candidate, or the nominee of any party, could appear on the general-election ballot as a candidate for any office with no petition and no fee. Dkt. No. [97] ¶ 13. In 1943, Georgia adopted a 5% petition requirement for access to the general-election ballot. Id. ¶ 15. That law allowed candidates of any political party that received at least 5% of the votes in the last general election for the office to appear on the general-election ballot without a petition or fee. Id. All other candidates were required to file a petition signed by at least 5% of the registered voters in the territory covered by the office. Id. The deadline for the petition was thirty days before the general election. Id. ¶ 16. Between 1943 and 1999, the Georgia General Assembly adopted a series of incremental changes to the petition deadline and imposed various other restrictions. Id. ¶¶ 17–26.
Georgia's current ballot-access laws distinguish between (1) candidates nominated by a political party; (2) candidates nominated by a political body; and, (3) independent candidates. Under Georgia law, a "political party" is any political organization whose nominee received at least twenty percent of the vote in the last gubernatorial or presidential election. O.C.G.A. § 21-2-2(25). Political parties choose nominees in partisan primaries, and the candidate nominated by the party automatically appears on the general election ballot for any statewide or district office. O.C.G.A. § 21-2-130(1). Presently, the only entities that meet the definition of "political party" under Georgia law are the Democratic Party of Georgia and the Georgia Republican Party. Dkt. No. [97] ¶ 38.
A "political body" is any political organization other than a political party. O.C.G.A. § 21-2-2(23). The Libertarian Party is a political body under Georgia law. Dkt. No. [97] at 9. Political bodies must nominate candidates for partisan offices by convention, O.C.G.A. § 21-2-170(g), and the nominees' access to the general-election ballot may depend on whether the nominee seeks a statewide office, a non-statewide office, or the office of the President of the United States.
Under Georgia law, a political body may become "qualified to nominate candidates for statewide public office by convention." O.C.G.A. § 21-2-180. A political body becomes qualified to nominate candidates for statewide public office by convention if: (1) it submits a qualifying petition signed by at least one percent of the total number of registered voters at the last general election; or (2) it nominated a candidate for statewide public office in the last general election who received votes totaling at least one percent of the total number of registered voters in the election. O.C.G.A. § 21-2-180. The Libertarian Party has been qualified for statewide offices under § 21-2-180 since 1988. Dkt. No. [97] ¶ 204. Candidates for statewide offices nominated by a political body that are qualified under § 21-2-180 appear automatically on the general election ballot without a nomination petition. O.C.G.A. § 21-2-132(e)(5).
However, candidates for non-statewide offices (including the office of U.S. Representative) nominated by a § 21-2-180-qualified political body do not appear automatically on the general-election ballot. Instead, such candidates must submit (1) a notice of candidacy and qualifying fee,1 see O.C.G.A. § 21-2-132(d), and (2) a nomination petition signed by 5% of the number of registered voters eligible to vote for that office in the last election, see O.C.G.A. § 21-2-170(b). Thus, in order for the Libertarian Party to have run a full a slate of candidates for U.S. Representative in 2020, it would have had to pay the necessary qualifying fees pursuant to § 21-2-132(d) and submit the necessary 5% nomination petitions pursuant to O.C.G.A. § 21-2-170(b). This ballot-access scheme for non-statewide political-body and independent candidates is the target of Plaintiffs' constitutional challenge.
The qualifying fee for most partisan public offices, including U.S. Representative, is 3% of the annual salary of the office. O.C.G.A. § 21-2-131(a)(1)(A). The current annual salary for U.S. Representatives is $174,000. Dkt. No. [97] ¶ 64. As such, the qualifying fee for each candidate for U.S. Representative is $5,220. Because Georgia currently has fourteen members of the U.S. House of Representatives, each of whom is elected from a single-member district, the Libertarian Party would have needed to pay $73,080 in qualifying fees in order to run a full slate of U.S. Representative candidates in 2020. Id. ¶¶ 60, 64. The Secretary of State estimates that the Libertarian Party would also have also needed 321,713 signatures to run a full slate of U.S. Representative candidates in 2020. Id. ¶ 63; see also Dkt. No. [69-34] at 8.
Qualifying fees for political-party candidates for U.S. Representative are paid directly to the state political party, which retains 75% and sends 25% to the Secretary of State. O.C.G.A. § 21-2-131(b) – (c). Qualifying fees for independent and political-body candidates for U.S. Representative are paid to the Secretary of State. O.C.G.A. § 21-2-131(b)(2). For political body candidates, the Secretary retains twenty-five percent and sends seventy-five percent to the political body. O.C.G.A. § 21-2-131(c)(4)(A). While the statute requires the Secretary of State to distribute the funds "as soon as practicable," the Libertarian Party did not receive its share of the qualifying fees for the 2018 election until after the election was over, in mid-April 2019. O.C.G.A. § 21-2-131(c)(4) ; Dkt. No. [69-12] ¶¶ 15–16.
The deadline for political-body candidates to file their notice of candidacy and qualifying fee is noon on the Friday following the Monday of the thirty-fifth week before the general election—a date that falls in early March of an election year. O.C.G.A. § 21-2-132(d)(2). The nomination petition is due no later than noon on the second Tuesday in July. O.C.G.A. § 21-2-132(e). The form of the petition is set out by statute. O.C.G.A. § 21-2-183. A nomination petition must be on sheets of uniform size and different sheets must be used by signers residing in different counties or municipalities. O.C.G.A. § 21-2-170(d). Each sheet must also contain a sworn and notarized affidavit of the circulator attesting, among other things, that each signature on the sheet was gathered within 180 days of the filing deadline. Id.
No political-body candidate for U.S. Representative has ever satisfied the requirements to appear on Georgia's general-election ballot since the 5% petition requirement was adopted in 1943. Dkt. No. [97] ¶ 76. Plaintiffs have submitted evidence that since 2002, at least twenty independent and political body candidates have unsuccessfully attempted to access the ballot. Id. ¶¶ 92-131. Plaintiffs also provide evidence of the various practical barriers to gathering enough signatures to satisfy the 5% petition requirement, including: (1) the Secretary of State's signature-checking process, which according to Plaintiffs is error prone; (2) the difficulty and pace of petitioning; (3) the cost of petitioning and the impact of federal campaign finance law; (4) petition-circulators' lack of access to voters; and; (5) public concern about disclosing the confidential information required by the form of a nomination petition. Id. ¶¶ 144, 149-154, 171, 173-74, 181-84. The Court discusses this evidence in further detail in its analysis of the burden imposed on Plaintiffs' rights.
The Libertarian Party was founded in 1971 and is organized in all fifty states, plus the District of Columbia. Id. ¶ 189. Nationwide, the Libertarian Party is currently the third-largest political party in the United States by voter registration. Id. ¶ 190. In 2018, the National Libertarian Party counted as members, including persons that paid no annual dues, 5,851 persons residing in Georgia. Dkt. No. [96-1] ¶ 24. The most recent data from the parties shows that in 2016, the...
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