N.C. Supreme Court will hear historic Libertarian ballot access lawsuit

A coalition of civil rights and public policy advocacy groups from across the political spectrum has joined the North Carolina Libertarian and Green parties in their lawsuit challenging the constitutionality of the state's election laws.

The appeal in the five-year old case will be heard by the N.C. Supreme Court, possibly in May. The lawsuit claims 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. 

Several groups submitted a joint amici curiae brief in February. They are the Southern Coalition for Social Justice, Democracy North Carolina, FairVote Action, the League of Women Voters. 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. In addition, North Carolina Institute for Constitutional Law submitted a separate amici brief.

The lawsuit contends that the N.C. Court of Appeals erred when it upheld the lower court ruling upholding the laws. The appeal asks for a de novo review, a procedure in which the Supreme Court will consider the matter anew and may substitute its own judgment for that of the trial court.

“The Supreme Court will review what is already in the record,” explained Adam S. Mitchell, attorney for the LPNC. “The standard of review is about how much weight (if any) the trial court’s findings are given.”

The appeal argues that since the state's ballot access statues burden fundamental rights, under the state constitution they can only be upheld by the court “if they are narrowly tailored to advance a compelling governmental interest.”

At trial, the state offered no factual evidence, no witnesses, no research and no studies to support its contention that the laws were necessary to avoid “voter confusion” a proliferation or parties or other problems with elections.

“To the contrary, the State's witnesses admitted that the State has never studied the issues of ballot clutter and voter confusion,” the brief states.

The state's top two elections officials testified that the state's greatest problems in recent years were caused by splitting precincts in drawing legislative, judicial and other electoral districts, thereby requiring election officials to offer multiple ballot styles.

Gary Bartlett, the state elections director, and Johnnie McLean, the deputy director, referred to the 1996 election, when five parties qualified for the ballot. The difficulties they cited were not voter confusion, but the result of insufficient space on voting equipment, a problem compounded by the need for multiple ballot styles for split precincts.

The brief argues that not only has the State failed to establish that any elections problems were caused by voter confusion, ballot clutter, or multiple parties on the ballot, but that the State's own witnesses established the problems were caused by other factors.

The appeal urges the Supreme Court to correctly apply the concept of strict scrutiny to the state's ballot access laws. This means the State must prove is uses the “least drastic means available” to achieve any “compelling interest” to restrict the number of parties on the ballot.

Richard Winger, the foremost national expert on ballot access, testified that North Carolina's two percent threshold was a “a terrible burden. In effect, it's a gigantic filing fee...” for third parties. He said that only four times in U.S. history has a new or previously unqualified political party met a petition requirement as high as North Carolina's 2008 requirement of 69,734 signatures.

“It is undisputed that North Carolina had no substantial problems with its ballots from 1929 to 1981, when it required only 10,000 signatures for ballot access,” the appeal argues. When the signature requirement was decreased briefly to 5,000 in 1982, only four parties appeared on the ballot, two less than in 1980.

Bartlett testified at trial that cutting the petition requirement in half would serve the State's purpose, the brief said.

The appeal also argues that states may interpret their own state constitutions to protect rights not mentioned in the Federal Constitution. In her dissent to the Appeals Court decision, Judge Ann Maria Calabria noted that, “States remain free to interpret their own constitutions in any way they see fit, including constructions which grant a citizen rights where none exist under the Federal Constitution.”

In summary, the appellants argue that “the only purpose served by North Carolina's ballot restrictions is to unfairly prevent small and new political parties from taking part in elections. Voters are denied an opportunity to support the parties of their choice.”

It concludes that “The undisputed evidence in this case shows that the state could impose a far less restrictive ballot access requirement and still guarantee orderly elections. The state has thus failed to show that its ballot access laws, which burden fundamental rights of free association and expression, are the least restrictive means of accomplishing its interests.”

Summary of Arguments

1. North Carolina's ballot access statutes burden fundamental rights under the state constitution.

2. States remain free to interpret their own constitutions in any way they see fit, including constructions which grant a citizen rights where none exist under the Federal Constitution.

3. Because North Carolina's ballot access statutes implicate fundamental rights under the state constitution, they can be upheld only if they are narrowly tailored to advance a compelling governmental interest.

a. The State failed to meets its burden of articulating with particularity the compelling State interests protected by the ballot access statutes.

b. There is undisputed evidence in the record that North Carolina's ballot access restrictions are not the least restrictive means to achieve a compelling governmental interest.

4. The Court of Appeals majority majority erred when it applied the general presumption of constitutionality even after finding that strict scrutiny applied to this challenge.

Part 2: The amici curiae briefs ... next week.