Each state has its own ballot access laws to determine who may appear on ballots, and almost every state has different procedures and requirements. Some require voter signatures, some require a filing fee be paid, and some require both. Generally, there are several ways an individual can become a presidential candidate. For independent presidential candidates, the individual must typically petition each state to have their names printed on the general election ballot.[1] In May of 2012, the Green Party of Georgia and the Constitution Party of Georgia sued Secretary of State Brian Kemp arguing that the state’s signature requirement for independent and political body (minor party) candidates for President[2]  exceeded the constitutional standards and infringed upon the right to participate in the electoral process.[3] Two months later, U.S. District Judge Richard Story dismissed the lawsuit. The two Parties appealed to the 11th U.S. Circuit Court of Appeals, which reversed the dismissal in January 2014 and sent the case back to Judge Story.[4]

Recently, on March 17, 2016, Judge Story declared unconstitutional Georgia’s requirement that political organizations who want to put a presidential candidate’s name on a statewide ballot must obtain signatures from at minimum 1 percent of registered voters.  According to Judge Story, the 1 percent signature requirement (which applied to candidates from groups not considered a political party under Georgia law[5]) is "unconstitutional as applied to presidential candidates and cannot stand."[6] Specifically, the requirement violates citizens’ federal First and Fourteenth Amendment substantive due process rights to run for office, and to vote for candidates of their choosing.[7]   Accordingly, the State of Georgia is enjoined from enforcing the provision against presidential candidates.[8]   As this is also an election year, Judge Story felt "compelled to assure that a procedure is in place to protect the very rights that this order seeks to secure: specifically, the rights of Georgia voters to fully participate in presidential elections by having a meaningful opportunity to vote for candidates other than those nominated by the two major political parties."[9]

It should be noted that Judge Story found that State of Georgia had failed to articulate an argument for the State’s interest in keeping candidates off the ballot.  There have been a couple efforts to reduce Georgia’s ballot access requirements in the Legislature in recent years, but both have failed.[10]

In 2012, when the lawsuit was filed, a presidential candidate seeking access to the Georgia ballot had to get 50,334 signatures.  However, Judge Story’s ruling lowered that bar, setting a temporary standard in place of the 1 percent signature bar, which will remain in place until the state Legislature enacts a permanent measure. Specifically, using the court’s equitable powers, Judge Story created an interim petition requirement—a presidential candidate must submit only 7,500 signatures on a petition that otherwise complies with state law to be put on the ballot.[11][12]

The concern that ballot access laws might keep smaller parties from gaining popularity over time may be lessened in Georgia. No independent or political body candidate for president has gained access to the ballot in Georgia since the year 2000.  Georgia Constitution Party Chairman Ricardo Davis commented, "Judge Story's ruling is a first step toward leveling the playing field so that Georgians can select the candidate of their choice.”[13]

More broadly, the ruling is significant.   It is one of only about a dozen times that a federal court has struck down a petition requirement, and is also the first time that a one percent requirement for Presidential candidates has been struck down specifically.[14] Judge Story applied strict scrutiny (requiring any law to both further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest), finding that the law would be struck down even if a more deferential standard of scrutiny had been used.  In other words, the bar for independent parties in Georgia to place a presidential candidate on the ballot has been lowered.  And, this ruling now provides an example of what is too high of a bar for a Presidential candidate to be placed on a ballot.

This is a big step towards independent or minor parties’ ballot access in other states as well.


By Keobopha Keopong, Esq., Barnes Law

Keo Keopong is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://votesmart.org/education/presidential-primary#.Vcy5MVNVhHxd

[2] http://atlantaprogressivenews.com/2016/03/18/breaking-georgia-ballot-access-law-stricken-for-presidential-candidates/

[3] http://www.news4jax.com/news/georgia/judge-finds-georgias-ballot-access-law-unconstitutional; http://www.wsbtv.com/news/georgia/judge-says-georgias-ballot-access-law-is-unconstitutional/168159221

[4] Id.

[5] http://www.news4jax.com/news/georgia/judge-finds-georgias-ballot-access-law-unconstitutional

[6]  http://www.wsbtv.com/news/georgia/judge-says-georgias-ballot-access-law-is-unconstitutional/168159221

[7] http://atlantaprogressivenews.com/2016/03/18/breaking-georgia-ballot-access-law-stricken-for-presidential-candidates/


[9] http://www.wsbtv.com/news/georgia/judge-says-georgias-ballot-access-law-is-unconstitutional/168159221


[11] http://www.news4jax.com/news/georgia/judge-finds-georgias-ballot-access-law-unconstitutional; http://www.wsbtv.com/news/georgia/judge-says-georgias-ballot-access-law-is-unconstitutional/168159221

[12] http://atlantaprogressivenews.com/2016/03/18/breaking-georgia-ballot-access-law-stricken-for-presidential-candidates/

[13] http://www.wsbtv.com/news/georgia/judge-says-georgias-ballot-access-law-is-unconstitutional/168159221

[14] According to Richard Winger of Ballot Access News. http://atlantaprogressivenews.com/2016/03/18/breaking-georgia-ballot-access-law-stricken-for-presidential-candidates/