The U.S. 4th Circuit Court of Appeals has upheld North Carolina’s restrictive ballot access rules for unaffiliated Congressional candidates. In October, the court ruled in Bryan Greene v. Gary Bartlett that requiring unaffiliated candidates to collect signatures from four percent of the registered voters in the district was Constitutional. This equals about 20,000 signatures in the typical district.
Greene, who attempted to collect signatures to run for Congressional District 10 in 2008, argued that N.C. law severely burdens independent candidates and violates the rights guaranteed in both the First and 14th Amendments to the U.S. Constitution. The plaintiffs in the case include Bryan E. Greene, his son Jordon M. Greene, Todd Meister, and intervenor Bradely D. Smith.
They argued that while the federal district court correctly noted that N.C. election law places a severe burden on voting rights, it failed to apply strict scrutiny in the case and overturn the law. The district court instead ruled that the law was not unduly restrictive because and unaffiliated candidate for U.S. House qualified in 2010 (although he did not file for office) and because in the past 19 years more than 80 candidates have successfully overcome the barrier.
However, the appeals court overlooked two key points about those candidates, said Jordon Greene, president of a ballot access reform group Free the Vote North Carolina.
“First, the U.S. House candidate that did qualify for the ballot in 2012, Wendell Fant, did not petition himself nor did he have to pay for petitioners to assist him,” Greene said. “He was qualified for the ballot by the SEIU (State Employees International Union) who funded and conducted the petition drive.” No public information is available as to the amount of money spent or who collected the signatures, Greene said. The court did not consider any of these points.
Greene also noted that the 80 candidates the court cited ran for state House, county commissioner or municipal offices, which have much lower signature requirements.
The court relied most heavily on U.S. Supreme Court precedent in Jenness v. Fortson (1971) in deciding the case. In Jenness, the Supreme Court upheld a Georgia law in some ways is more restrictive than North Carolina’s. Noted ballot access expert Richard Winger said the appeals court was not correct when it claimed there was no way to differentiate North Carolina’s law from the Georgia law upheld in Jenness.
“In Jenness, the U.S. Supreme Court upheld the law because the plaintiff was running for statewide office, and the record showed that two statewide petitions had succeeded recently, one in 1966 by the Republican Party candidate for governor, and one in 1968 by George Wallace,” Winger wrote in his online magazine Ballot Access News. Other than Fant, Winger said that no independent for U.S. House has ever qualified, in the 110 years North Carolina has had government-printed ballots. In addition, Winger said that the circuit court also ignored three more recent U.S. Supreme Court opinions which say laws that are seldom used are probably unconstitutional.
The senior Greene and his fellow plaintiffs contend that newer precedents such as Storer v. Brown (1974) should have been given more weight in the decision. In Storer, the U.S. Supreme Court asked the question: “could a reasonably diligent independent candidate be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot?” Past experience would be a helpful, though not perfect, guide to answering that question, the court said: “… it will be one thing if independent candidates have qualified with some regularity, and quite a different matter if they have not …”
In North Carolina, it’s clear that independent candidates don’t qualify for the ballot regularly, Jordon Greene said. “It is hard to call one well-funded candidate having obtained access one time in the history of the state-printed ballot as regular,” he said.
Plaintiffs are considering taking their case to the U.S. Supreme Court.