March 16, 2011
By Brian Irving
The N.C. Supreme Court has upheld the state laws that give North Carolina the second most restrictive ballot access requirements in the nation. The justices ruled 5-1 that they were “not persuaded” that ballot access is a “fundamental right.”
“Indeed, ballot access rights, though distinct from voting rights, are central to the administration of our democracy,” said Justice Patricia Timmons-Goodson, writing for the majority. “While these rights are of utmost importance to our democratic system, they are not absolute.”
In a dissenting opinion, Justice Paul Newby countered, “Ballot access implicates our citizenry’s freedom of association, freedom of speech, and freedom to vote.”
The state Libertarian Party brought the suit in 2005, contending that North Carolina’s elections laws unduly restrict the rights to freedom of speech, association and due process. The complaint challenged the constitutionality of the “entire scheme” of the state’s elections laws under the North Carolina Constitution. The N.C. Green Party later joined the lawsuit.
“Ballot access implicates our citizenry’s freedom of association, freedom of speech, and freedom to vote.”
– Justice Paul Newby, dissenting from the majority opinion in LPNC vs. The State
“To say the least, this is a major disappointment to those of us in the Libertarian Party and a major slap in the face for the voters of North Carolina,” said Libertarian state chair Barbara Howe. “The court believes that the burden imposed on new political parties is not severe and that the state is justified in restricting access to the ballot to avoid voter confusion and ballot clutter.”
“What stuns me the most is that the state’s attorneys never demonstrated that North Carolina has any voter confusion or ballot clutter, nor did they cite any voter confusion or ballot clutter in any other state with less restrictive ballot access requirements,” she said.
Howe said the real losers in this case are North Carolina voters. “Unless the law can be changed through the legislative process, I am almost 100 percent certain that no other political party will ever appear on North Carolina’s ballot.”
The Supreme Court acknowledged that this was the first time they had been asked to rule on the constitutionality of election law under the state constitution. They also said they were not bound by federal court rulings in interpreting the state constitution. Yet their decision is based almost exclusively on U.S. Supreme Court precedents, particularly the case of Timmons v. Twin Cities Area New Party, a case involving fusion party candidacies.
Current law requires a new political party to collect more than 85,000 signatures from registered voters in order to be placed on the ballot. Then the new party must get at least two percent of the vote for governor or president to stay certified.
The success of the Libertarian Party in overcoming this heavy burden was actually used against them by the court in upholding the restrictions. The court cited the fact that a new party has 3 1/2 years to collect the signatures, with few restrictions on who can sign the petition, as justification for the burden. They also noted that the Libertarians managed to collect the required number with only five people.
“What the court failed to take into account, in fact ignored, despite the evidence we presented, was the cost and amount of work needed for ballot access drives,” Howe said. For the 2008 election, the Libertarian Party spent more than $130,000, in part to pay signature collectors, and expended thousands of volunteer hours.
Howe also noted that an effort to qualify another new party for the 2010 election failed despite the fact that it was heavily funded by two major government employees unions and hired 100 signature collectors.
“Giving major parties a de facto ballot line while requiring all other political parties to expend enormous resources to gain and maintain a ballot line is akin to allowing some parties to start on third base while everyone else starts in the batter’s box,” said Nick Triplett, N.C. Green Party vice chair.
Dr. Mike Munger, Duke University political science professor, said the key point in the case was the court’s determination that the ballot access rules didn’t violate gender or race discrimination laws. They held that the law was not “significantly burdensome” and so a “less exacting review,” rather than “strict scrutiny,” could be used to determine its constitutionality.
“Once it was decided that this was not a strict scrutiny problem, the only question before the court was this: are North Carolina ballot access laws so restrictive that no reasonable person could accept them as necessary for the purpose the state has claimed, preventing confusion and ballot clutter,” he said.
Munger, the Libertarian candidate for governor in 2008, said it was important to note that the court did not consider the merits of the law. The question they considered was merely whether it is inconceivable that a reasonable legislator would make such a choice.
In his dissent, Justice Newby wrote that the courts should have questioned whether the signature rules were reasonable in balancing the values of orderly elections against the fundamental democratic right of choice at the ballot box. He said he would have sent the case back to a lower court with orders “to strictly scrutinize” the requirements.
“The court said the issue is not whether the General Assembly should choose lower restrictions. The issue is whether, as a matter of constitutional law, they are allowed to choose the restrictions it chose,” explained Munger. “And the court found nothing in the U.S. Constitution or the N.C. Constitution that prevented it.”
While he said he disagreed with that view, Munger said he thinks the court’s decision was plausible given that basis. “Deciding that this is not a strict scrutiny question is where I disagree with the court, he said. “I think our side demonstrated that North Carolina ballot access law is much more restrictive than is necessary to achieve the purposes the state claims. Other states have achieved those same purposes with much lower barriers.”
“The court basically said the remedy is for changing the legislation by persuasion, not by judicial force,” said Munger.
Libertarians and Greens are already taking action in the political arena. They’re part of a multi-partisan coalition working to pass a bill that would dramatically reduce the signatures new political parties and unaffiliated candidates need to be listed on the ballot. The Free the Vote Coalition includes all the state’s so-called “third parties” as well as public policy groups from across the political spectrum.
House Bill 32, the Electoral Freedom Act, is being considered by the House elections committee. It’s sponsored by Republicans, Democrats and the only unaffiliated member of the legislature. The bill would reduce the barriers for “third parties” and unaffiliated candidates for statewide office to qualify for ballot listings to around 10,000 signatures.
“At a time when 25 percent of North Carolina NC voters are unaffiliated, not to mention how many Democrats and Republicans simply register with the ‘lesser of two evils,’ we cannot wait any longer for our government to allow choice in our elections,” said Triplett. “ The current political and economic crisis in our state demands new leadership based on grassroots independence rather than stale partisan ideology.”