The North Carolina Supreme Court heard oral arguments in what could be a landmark ballot access case for the state. The hearing culminated a five-year legal battle by the Libertarian and Green parties to reform the state’s restrictive ballot access laws.
Five of the seven justices grilled the attorneys for both sides. It appeared from the questions that the justices were very familiar with details of the case and the history of ballot access in the state.
The questions focused on several key issues, including the limits of the state’s compelling interest in regulating elections, what causes so-called “ballot clutter,” and the concept of “voter confusion” that may or may not occur with multiple parties on the ballot and multiple offices up for election.
Justice Edward Brady observed that the bottom line of the case was about control. “The one who controls the law, writes history,” he said.
Several of the justices questioned the argument by the state that a ballot with more than two parties would result in long lines on election day and discourage voting.
“What’s wrong with that,” commented Justice Brady. He pointed out that the United States is the only major democratic nation with only two political parties.
“There are lots of other ways of dealing with long lines than keeping people off the ballot,” responded Ken Soo, an attorney representing the Libertarian Party.
At one point, Brady asked the state’s attorney, Alex Peters,“Is ballot access a fundamental right” and Peters responded, “The right to vote is a fundamental right.” Brady said, “That doesn’t answer the question.”
The state attorney was also vague in responding to several questions for the justices to specifically define the state’s “compelling interest” in limiting the number of parties on the ballot.
“There never has been any evidence provided by the state to show that it has a compelling interest in such restrictive ballot access laws,” said Robert Elliot, an ACLU attorney representing the Green Party.
“This case is not about the Libertarian Party,” said Barbara Howe, Libertarian Party chair, “This case is about the people of North Carolina.” She said that the huge barriers erected by the State for ballot access, which get bigger every year, limit political dialogue and limit voting choice.
“Limiting choices is not a good thing,” she said. “More voices participating, not fewer, make for a vibrant democracy.”
In addition to Libertarians and Greens, several members of the Constitution Party attended the hearing to support the lawsuit. Terry Hardison, a Constitution Party director, summed up their feelings when he said, “If they win, we win.”
It will probably take several months for the court to issue a decision, according to attorneys for the Libertarian Party. They believe that whatever the court decides, it will be a landmark decision for ballot access.
For background, go to LPNC vs. The State
The Libertarians filed the lawsuit in 2005 and the Green Party joined in 2006. They argue that North Carolina’s ballot access restrictions violate the state constitution, which guarantees that all elections shall be free and that with very few restrictions every voter shall be eligible for election by the people to office.
“We are hopeful,” said Barbara Howe, Libertarian Party chair. “We have good arguments and the State has nothing.”
Sean Haugh, whose name appears as the lead plaintiff in the case, said that the lawsuit is simply about having one set of election laws for everyone. “Right now, we have two sets of election laws; one set for Democrats and Republicans, with special benefits, and another set for everyone else, with special burdens.”
He said that the state constitution does not say one has to join a particular party in order to participate in the system.
During the trial and appeal process, the state simply asserted that the restrictive laws were necessary to avoid “ballot clutter” and “voter confusion,” and other problems with elections. Yet the State offered no factual evidence, presented no witnesses, nor provided any research or studies to support this contention.
On the contrary, the State’s own witness admitted that the State has never studied the issues of ballot clutter and voter confusion and the board of elections director and deputy director testified at trial that the problems were caused by other factors, including split precincts.
Elections director Gary Bartlett also testified that cutting the petition requirement for new parties in half would serve the State’s purpose.
“All fair-minded people support ballot access laws that do not require unreasonable use of time and financial resources,” said Durham Green Party activist Theresa El-Amin, recently elected c-chair of the national Green Party.
The appeals court decision was a watershed decision and may have implications for constitutional law beyond North Carolina, said Jason Kay, a senior staff attorney with the N.C. Institute for Constitutional Law.
“The (appeals) court, having held that strict scrutiny applies — which means that they must dig into the statue and a reasoning analysis was appropriate — then said, ‘Well, we have to resolve all doubt in favor of the state,” Kay said.
The institute was one of ten groups from across the political spectrum who field amici curie briefs in support of the Libertarian-Green appeal. The others are the Southern Coalition for Social Justice, Democracy North Carolina, FairVote Action, the League of Women Voters-NC, Common Cause, North Carolinians for Free and Proper Elections, the John Locke Foundation, the N.C State Conference of Branches of the NAACP and the N.C Center for Voter Education.
“It’s a matter of giving voters alternative choices at election times,” said Alan Burns, Green Party member and environmental activist of Charlotte. Nearly half the state house and senate seats routinely have only one name on the ballot, he said, and more than 85 percent of the races are predictable victories for one of the two major parties.
“It’s a far cry from democratic rights for voters” he said.
North Carolina has the second most restrictive ballot access laws in the nation. It is less difficult to get on the ballot in 48 other states – and in Russia and Iraq – than it is in North Carolina. Current law requires 85,379 valid signatures for a new political party to get on the ballot. That means petitioners would need to collect over 100,000 signatures to allow for rejections and to achieve the required number of valid signatures.
Once the new party is certified, it must garner two percent of the vote for governor or president to remain ballot qualified. Otherwise, it must start the lengthy and expensive process all over.
South Carolina and Virginia require only 10,000 signatures for a new political party or independent statewide candidate as does New York. Tennessee requires only 275 signatures for a presidential candidate and 25 signatures for Congressional candidates.
Read more: LPNC vs. The State