How Georgia's Outlandish Ballot Access Law Is Protecting Marjorie Taylor Greene (and the Two-Party System)

[Muda69]

https://reason.com/2022/07/13/how-georgias-extreme-ballot-access-law-keeps-libertarians-and-everyone-else-off-the-ballot/

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"You're running against MTG? I would be so happy to sign this!"

Sometimes, all Angela Pence has to do to get some attention is mention the name of Rep. Marjorie Taylor Greene (R–Ga.), the first-term congresswoman and conservative firebrand who's made a name for herself by trafficking in conspiracy theories. This is Greene's district, but it's not her crowd. 

We're at a Pride event in the small city of Rome, Georgia, the largest population center in the state's sparse northwest corner, and Pence is trying to collect some of the roughly 23,000 signatures that she'll need to qualify for the ballot. So, technically, she's not running against Greene just yet, but she's trying to.

The exuberant petition-signer is Janet Gabler-Bearoff, a Pennsylvania transplant who now owns The Frisky Biscuit, a sex shop and personal wellness center in Rome. She's incensed about the recent Supreme Court ruling that overturned Roe v. Wade, announced just the day before the Pride event, and Pence shares the frustration. "We're going in reverse," the prospective candidate says, nodding along as Gabler-Bearoff fills out the form that might help get Pence on the Georgia ballot in November. "Prohibition isn't going to fix anything; it never has."

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Before Pence can get a fair shot at challenging Greene, she has to overcome America's toughest ballot access law—with a petition threshold that no independent or third-party candidate has successfully surpassed since the 1960s. To qualify, she has to collect more than 23,000 signatures from residents of her congressional district. 

It's a law that was originally passed to keep out candidates believed to be advocating for overthrowing the American government. Ironically, that law is now protecting Greene, one of Congress' loudest cheerleaders for former President Donald Trump's attempt at subverting the results of the 2020 election.

So far, courts have upheld the high barrier to entry in Georgia's congressional races on the grounds that it keeps out unserious candidates and avoids confusing votes. A case challenging the threshold could be headed to the Supreme Court later this year, but not soon enough to help Pence. 

But if Pence isn't a serious candidate, it might be fair to wonder how to categorize Greene, who has claimed 9/11 was a hoax, that John F. Kennedy Jr. was murdered by Hillary Clinton, and that COVID-19 lockdowns are comparable to the Holocaust, among other things. But Greene has one thing Pence doesn't: the nomination of one of the two major parties.

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In 1940, when the Communist Party of the United States sought to place its candidates for office on Georgia's ballot, Secretary of State John B. Wilson intervened. He unilaterally barred Earl Browder, the party's presidential nominee, and all other Communist candidates from the ballot. "It would be against public policy to place on our ballot the names of candidates of a party which seeks to overthrow our democratic constitutional form of government," Wilson said, according to an Associated Press report from August of that year.

The outcome of the 1940 presidential election in Georgia was never in any serious doubt. President Franklin Delano Roosevelt won the state's 12 electoral votes by getting more than 84 percent of the popular vote—a tally that was actually slightly worse than the percentages he'd received in 1932 and 1936. Nationally, Roosevelt easily defeated Wendell Willkie to win an unprecedented third term.

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After the election, Wilson asked the Georgia legislature to pass a law granting his office the authority to determine which candidates and parties could qualify for the ballot. Instead, three years later, the state legislature adopted a new set of ballot access rules. 

Now, candidates for any political party that received at least 5 percent of the vote in the last election would be automatically included on the ballot without petitions or filing fees. Anyone else would have to collect signatures from at least 5 percent of the registered voters in the territory for which they were seeking office—for a congressional candidate, that means all the signatures must come from voters in their district.

The new rules were undoubtedly an improvement over a system where everyone was nominally allowed to participate but the secretary of state held the power to unilaterally bar certain parties. But, for Richardson, the motivation behind the 5 percent signature threshold is clear.

"One of the purposes, if not the primary purpose, of Georgia's 5-percent petition requirement was to discriminate against the Communist Party," Richardson testified to a federal court as part of a 2017 lawsuit attempting to overturn Georgia's ballot access requirements. He pointed to a 1943 Atlanta Constitution article that drew an explicit connection between Wilson's anti-commie crusade and the new law. "No other justification for the petition requirement is apparent in the historical record," he told the court.

In the decades since it was originally created, the barriers created by the law have only gotten higher. Candidates originally had until 30 days before the general election to collect and submit signatures, for example. The deadline is now mid-July. The signatures must be notarized. Candidates must pay a $5,000 filing fee in March, which is not refunded if they don't get enough signatures to qualify. 

The thresholds are so high that no independent or third-party candidate has appeared on the ballot in a Georgia congressional race since 1964, with one exception in 1982. That year, the rules were temporarily suspended because district lines in the Atlanta area had to be redrawn by court order shortly before the election. 

Every other state in the country has had at least one independent or third-party candidate qualify for the ballot in the past six years, according to Richard Winger, the editor of Ballot Access News who has been tracking developments in this niche political space for decades. In Georgia, you have to go back nearly six decades.

"There has never been any state that made ballot access totally impossible for such a long period of time for a single office," Winger tells Reason. "It is unlike anything else you'll find in the whole country."

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Even if a candidate (and volunteers) can get 10 signatures per hour, getting to 23,000 would take more than 2,300 hours of work. "Then, the elections office is going to tell you roughly half of them are not valid signatures, so you really need 46,000 signatures—which takes 4,600 hours," says Ryan Graham, a former chairman of the Libertarian Party of Georgia. "If you wanted to pay professional petitioners to do it, it would cost roughly $3 per signature and total around $138,000. And that's just to get on the ballot before you even get to focus on campaigning."

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On Tuesday, Pence and her cadre of volunteers officially hit the end of the road. They gathered about 5,000 signatures before it was done, but didn't bother submitting the pile of paperwork since it was nowhere near enough to make the cut. 

But it very nearly could have been. 

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Ballot access laws that treat independent and third-party candidates differently always raise questions about fairness. Why should one party be treated differently than another in the eyes of the state?

But leave aside the question of fairness for a moment. If Georgia's ballot access scheme is constitutional, as the federal appeals court has said, then it would be equally constitutional to replicate it in every other state. And if that were to happen, then it's possible that no third-party or independent candidates would ever qualify for the ballot again. Isn't that a detail that should be part of any court's analysis of how this law operates?

Winger breaks down the math. If Georgia's ballot access law were replicated across the entire country, a third party that wanted to run a candidate in every statewide race (to say nothing of congressional races) would have to gather more than 10 million signatures. With the laws as they currently stand, that figure is a less extreme (though still outlandishly large) tally of about 541,000.

If a presidential candidate had to collect more than 10 million signatures to get on the ballot, everyone would rightfully recognize that as an insane and anticompetitive barrier. Well, an equivalent barrier that's been set in front of Angela Pence—and anyone else seeking to run for office in Georgia outside the two-party duopoly.

And don't expect relief to come from the regular lawmaking process. "The state legislature does not seem too interested in making it easier [to qualify for the ballot]," says Charles Bullock, a professor of politics at the University of Georgia.

Bullock explains that the law is more than a bit self-serving, especially in light of Georgia's rules that require candidates to get at least 50 percent of the vote to win an election—if no one does in a general election, there's a runoff between the top two candidates. From the perspective of the Democrats and Republicans in the Georgia state legislature or in Congress, then, allowing more third-party and independent candidates on the ballot would only increase the chances of requiring a run-off. And who wants to deal with that annoyance?

But a proper democratic system shouldn't prioritize the interests of two political parties at the expense of competing ideas. It shouldn't exist for the purposes of making elections as neat and tidy as possible. The goal is to translate the will of the people into an elected body of representatives—and outlandish barriers to ballot access stand in the way of that goal.

The people of northwest Georgia might very well choose to keep Greene in Congress no matter who runs against her. In all likelihood, they will. The district is rated R+27 by the Cook Political Report, making it the second-most Republican district in the state (surpassed only by the neighboring 9th district) and among the safest Republican seats in the whole country.

But Georgia's ballot access laws, ostensibly created in the name of protecting American democracy from those who would subvert it, have accomplished the opposite. They are an incumbency protection scheme meant to limit the field of acceptable candidates. As lawmakers in Washington, D.C., and Atlanta take stock of how election laws need changing to protect the country's foundational principles, laws like this must be part of that conversation.

Having failed to qualify for the ballot, Pence is mulling a write-in campaign in the fall. After all, there's still a chance that Greene could be tossed off the ballot or otherwise disqualified from office for her role in the January 6 riots, Pence reasons. (Some of Taylor Green's constituents unsuccessfully sought to have the congresswoman barred from running for office over her alleged involvement in the January 6 riot at the U.S. Capitol.)

If that happens the race comes down to Pence vs. Flowers….hey, stranger things have happened in American political history.

For now, though, she's satisfied with this first step into politics.

"I don't see this as a failure. It was always such a long shot," she told me on Tuesday. "I got to talk to hundreds, thousands of people about what a third-party candidate has to do to run for office here. It means something to get that message out."

Such ballot access laws should be ruled unconstitutional .  They are an affront to American Democracy.

 

Edited July 14, 2022 by Muda69