court good morning my name is brian cells and i represent appellants martin cowan and others this court should vacate the judgment of the district court for two main reasons st is the principle that lower courts are court reiterated that principle just six years ago in the green party case the nd reason to vacate the judgment is that with respect to the plaintiffs equal protection claim even the secretary of state describes it as celss judge jordan i understand that your equal protection claim is different and i for my part i speak only for myself i don't think it's barred by supreme court precedent and by janet but with regard to your st and th amendment claims those are the exact same claims that were rejected jenna's by the supreme court and how in the world are we supposed to decide an issue differently than the supreme court squarely did fifty years ago well you know i don't agree that our claims here are appropriate legal standard and there's no dispute here that anderson is the appropriate legal standard for ballot access claims and the district court expressly declined to apply the andersen test and as this court held in bergland and green party failing to apply the andersen test was therefore reversible error and i might add that berglund involved a candidate for united states representative constitutional law is that or federal courts law is that it is all it is the prerogative of the supreme court and the supreme court only to overrule a precedent that is on point even if that favorably citing genesis as allowing states to put in percentage requirement of support before you get on the ballot how do you avoid all of that well let me read make two test so that's my st point my nd point is that there are significant material differences between this case and the genesis case and i can go over some of those if that would be helpful sure tell me tell me a couple of the main ones let me break it down like this of the eleven or so facts upon which the supreme court lied in the genesis case three are no longer true these include the most important fact that the supreme court relied on which is that there had been two recent candidates who satisfy the test in this case of course that's not true the nd fact that is no longer true is that georgia placed no restrictions on writing voting the supreme court mentioned that and that is no longer true and the rd is that georgia did not require any signatures to be notarized and now it does and on top of that there are at least six additional facts in this case which were not present in genesis and could have affected the outcome and the st of those is the most important that we are challenging the filing fee in addition to the signature requirement the district court in this case made a pretty shocking mistake when it characterized the genesis opinion as rejecting a constitutional challenge to the filing fee when you can see on page fo aspect of the case not with the feet part of it right and we have a claim in here and on top of that we have new laws in georgia of a challenge involving u s representative i think the way the hornbook puts it is probably best and i'll read from that this is on page thirty one of the law of judicial president it says quote our results reached under the old standards still binding precedent the answer is no instead federal courts must apply the new standard and reach the result dictated under that new standard and that's what we have here that anderson applies and not genesis now that does not mean of course that the court may not reason from genesis it would be perfectly appropriate for example for the district court or this court to note the fact that in genesis the court relied on the fact that signers can sign more than one petition that is something to go into the andersen  calculus the multi factor balancing test but there are other things that go into the anderson test and the district court should have looked at those as well and it didn't and and that was reversible error now are other questions about the andersen test like say a few words about equal protection sure ok so the secretary described the plane as equal protection claim as novel and distinct from genesis and the secretary is right on that in genesis the plaintiffs argue that georgia could not constitutionally treat political body candidates differently from political party candidates and here the plaintiffs claim that georgia violates the equal protection clause when it treats libertarian candidates for us representative different from libertarian candidates for statewide offices and janice didn't address this  disparity because it didn't exist at the time of the case and so janice therefore could not control the outcome of the plaintiff's claim and the district court did not separately address the plan is equal protection claim beyond a very very brief assertion on page fourteen that the equal protection analysis in genesis is still finding it did not even cite the one thousand nine hundred and seventy nine socialist workers party case on which the claim is based and because genesis could not have foreclosed the plaintiffs equal protection claim this court should vacate its judgment on that issue finally i'd like to turn to the remedy unless there are other questions on the equal protection cli so at the very least this court should vacate and remand the case to the district court because it failed to apply the appropriate legal standard and didn't address the plaintiff equal protection claim at all but this court also has authority to decide rule the nd reason for this court to decide the merits of the case is that the secretary of state chose in his brief not to respond to my client's argument that george's ballot access scheme plunks the anderson test for example the secretary has no answer to the overwhelming and undisputed evidence in the record that george's ballot access scheme freezes the status quo there have been more than twenty candidate thank you have been more than twenty candidates who have tried unsuccessfully just in the last twenty years alone the secretary fail to reckon with the fact that no rd party candidate for u s representative has appeared on the general election ballot since the scheme was st enacted in one thousand nine hundred and eighty three the secretary does not address the fact that georgia's petition requirement and filing fee are by far the most stringent in the nation and he doesn't even attempt to argue that georgia scheme is remotely necessary for the state to advance its legitimate interests and that's because there is no constitutional justification for continuing to deny georgia voters the opportunity to vote for libertarian candidates for congress and i'll just say in closing that it's important to remember that the rights of georgia voters to express their political preferences freely are very much at stake here as well and if there aren't any more questions from the panel i will yield to my colleague on the other side ok you save your time for rebuttal mr self thank you very much thank you  years of precedent upholding the constitutionality of georgia's petition requirements for political body candidates these very partition requirements challenge here were st upheld by the supreme court and jennifer says th in which your honor is absolutely correct that cases where early on point and sense that decision this court has upheld georgia's petition requirements three additional times the district court followed this is my ground can i ask you a question on the equal protection claim and you don't have to and you don't have to answer it now but i would like you to try during the course of your argument that this record did not separately address the equal protection claim and that seems to me to be a procedural whether george's petition requirements discriminated between political party candidates as opposed to political body candidates but the district court still reached the correct result and this court can find that there are still no is there is still no equal protection claim as a matter of law and we characterize their equal protection claim as novel because it alleges a type of discrimination that has never been recognized under the law and they claim that the georgians petition requirements ruminate between libertarian candidates for statewide office as opposed to libertarian candidates for the u s house of representatives and and their argument is based upon two false assumptions one that that is a claim recognized under equal protection law but it's also a false factual premise that to win on the merits of her equal protection claim the libertarian party has to show some sort of discrimination against them and they cannot make that showing statues election laws create many types of classifications which do not deny equal protection and as the supreme court said in its decision an american party of texas versus white it is only in videos discrimination which  s the constitution and the libertarian party has not fulfilled that showing now what their argument is basically boils down to is that because a libertarian party has qualified to run candidates on the statewide ballot and nominate them by convention and that is under a different georgia statute that is not at issue here that therefore the state is required under the constitution to waive all requirements for them to run their candidates at the local level but the state has just as much of an interest in making sure that candidates at the local level have that significant modicum of support amongst the voters in order to have the state put them on the ballot this has been in a state interest that has been recognisance generous and the state has that is a legitimate interest both at the state wide level and at the local level so merely because a political body candidate someone from the libertarian party may have some support statewide does not necessarily mean that a candidate will have that type of support amongst the voters at the congressional level do you did you interpret the plaintiff's complaint as also challenging the filing requote the filing fee requirement we did your honor we interpreted their claim of being both a petition requirement as well as the filing fee and i can address the filing fee issue this record didn't separately address the filing for you right that injunction was issued the legislature actually amended the law to make it less restrictive than what it was at the time of jhana so it wasn't an issue on appeal but over time  doesn't control of the filing right it does not your honor but it also does not rise to a level of a st or th amendment violation in this case even combined with the petition requirement because georgia actually questions and i'd like to address them each in turn st i'll start with the burton decision that cases not controlling because it involved the unique situation of a presidential election and this court in that decision was very clear that it was only distinguishing  he also his claim also was reminded with the instructions that they had to the district go ahead them but then to some strand you know and if you look at the way the court analyzed the case recognizing that an anderson have less of an interest in regulating presidential elections and statewide or local elections because the outcome of the former will largely be turbaned by voters be on the state's boundaries and so the court was very clearly distinguishing this case from genesis not saying that genesis was no longer a good law but distinguishing it from a factual basis and this court also has decisions directly on point involving congressional candidates just like in this case and that  bouncing test the court st looked at the burdens that was placed on candidate and found that georgia's petition requirements did not present a severe burden on candidates because there were very few restrictions on the signature collection process and those those same qualities about georgia signature collection requirements arse are still the same george's requirements have not materially changed the court and then looked at the state's interest and found that georgia has a legitimate interest in requiring political body court and this court and circuit courts around the country have continued to recognize justice as setting and a permissible constitutional level for ballot access requirements and i would also submit that even if the district court had applied the andersen verdict standard in this case it would not have reached a different result because the district courts analysis would still have to be informed by janice and this court's precedent  both janice and anderson and the burdock decision in those cases the supreme court said that georgia's petition requirements were reasonable and nondiscriminatory and therefore subject to the lowest level of scrutiny and i know the appellant for making the argument that petition requirement should be subjected to some higher level of scrutiny and even strict scrutiny but this court has never analyzed ballot access cases and petition requirements at that level of scrutiny and cofield has house explicitly stated that georgia's petition requirements have not materially changed thank you so we submit that even if the court had employed or some break on the summary judgment record before it that the outcome would not have been been different and finally i'd like to address norman versus reed and explain why that case is not controlling here norman versus reed in the earlier case in the socialist workers party we're still annoyed those two cases involved a very of illinois petition requirements that are not present in georgia and those cases are very limited and merely hold that a state's petition requirements may not require more signatures for local office than it does for statewide office illinois had a very unique aspect in their law where they had a twenty five thousand signature requirement was a flat requirement for statewide office it was also the same requirement for local office and what illinois law is requiring of candidate is that signature requirement for every single political subdivision within a district so the court found that the law was actually requiring candidates for local office to collect far more signatures and statewide that is not present here in georgia state why candidates do not excuse me local candidates candidates for congressional districts do not have to collect more signatures than they would have to to meet the statewide petition requirement and i see that my time is coming to a close so unless the court has additional questions for me we would ask that the court affirm the district court's grant of summary judgment in favor of the secretary of state all right thank you very much mr goen mr so thank you shorten i think i want to try to make three quick points st on the equal protection claim my colleague on the other side says that it has never been recognized but i respectfully disagree our claim is  really on all fours with the claim identified and upheld by the court in illinois versus socialist illinois state board of election the st a socialist workers party which was then extended in norman that here a libertarian candidate for one congressional seat has to gather approximately twenty five thousand dollars signatures and libertarian candidate for president has to gather zero signatures a libertarian candidate for u s senate has to gather zero signatures and under norman versus reed and illinois versus the socialist workers party case that disparity has to be justified by a compelling state interest my nd point response to one of your questions judge jordan to my colleague and that is about whether our filing fee claim has been addressed and i want thirty four dollars that ballot access regimes are to be assessed in their entirety and not just on a piece by piece basis and so our claim yes is different than genesis but it's we're challenging the entirety of head the supreme court upheld an earlier version of georgia's ballot access scheme because because it did not operate to freeze the political status quo and now the secretary urges this court to foreclose the plaintiffs challenge b despite its operation to freeze the status quo that is a misreading of genesis that turns the five percent petition requirement into a bright line litmus test which has been soundly rejected by the courts both all right thank you very much thank you both that concludes our oral arguments for the week and the court is in recess thank you thank you