                                                                        [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                                  MAR 19, 2010
                                No. 09-13277                       JOHN LEY
                          ________________________                   CLERK


                     D. C. Docket No. 08-02755-CV-RLV-1


FAYE COFFIELD,
JASON CROWDER,
BEATRICE WILLIAMS,

                                                            Plaintiffs-Appellants,

                                        versus

BRIAN KEMP,
in his official capacity as Georgia
Secretary of State and Chairperson of
the Georgia State Election Board,

                                                             Defendant-Appellee.


                          ________________________

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

                                (March 19, 2010)
Before EDMONDSON and MARCUS, Circuit Judges, and BARBOUR,* District
Judge.

PER CURIAM:

       Appellant-Plaintiff Coffield sought access to the 2008 general election ballot

as an independent candidate to represent Georgia’s Fourth Congressional District

in the United States House of Representatives. She was not on the ballot. Briefly

stated, she was unable to collect a sufficient number of signatures to satisfy

Georgia’s requirement that an independent candidate submit a nomination petition

signed by at least 5% of the total number of registered voters eligible to vote in the

last election for the position the candidate seeks. G A. C ODE A NN. § 21-2-170. This

appeal presents one issue: whether the district court erred when it dismissed

Coffield’s constitutional challenge for failure to state a claim under Rule 12(b)(6).

We conclude it did not.

       Coffield claims that Georgia’s 5% rule is too burdensome; she alleges no

independent candidate for the House of Representations in Georgia has met the

requirement since 1964 and that no minor party candidate has ever met it. But she

does not allege how many candidates have tried. According to the Complaint,

Coffield’s own petitioning effort resulted in about 2000 signatures, less than 1% of


       *
         Honorable William Henry Barbour, Jr., United States District Judge for the Southern
District of Mississippi, sitting by designation.


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the eligible pool and about 13,000 signatures short of what the rule required.

      Our Court and the Supreme Court have upheld Georgia’s 5% rule before.

See Jenness v. Fortson, 91 S. Ct. 1970, 1974-76 (1971) (stressing lack of

restrictions on write-in candidates and on the obtaining of signatures for

nominating petitions); Cartwright v. Barnes, 304 F.3d 1138, 1140-42 (11th Cir.

2002); see also Swanson v. Worley, 490 F.3d 894, 910 (11th Cir. 2007) (upholding

Alabama’s 3% requirement where no independent or minor party candidate had

obtained ballot access when nothing indicated that similar potential candidates had

sought ballot access). The pertinent laws of Georgia have not changed materially

since the decisions in Jenness and Cartwright were made.

      AFFIRMED.




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