NC Election law on trial
Posted in Liberty Points by R Lee Wrights on February 5th, 2008 by Brian Irving
North Carolina’s restrictive ballot access laws are going on trial.
In a hearing January 30, Superior Court judge Leon Stanback denied motions for summary judgment of the lawsuit brought by the North Carolina Libertarian and Green parties challenging the constitutionality of North Carolina’s ballot access laws.
Just before he ruled, Judge Stanback said he personally thought the signatures requirements were too high. “I think 5,000 or 10,000 should be enough, but the legislature hasn’t seen that it’s sufficient.”
The State’s attorney argued that some facts presented by the Libertarians and Greens were merely opinions, in particular, the affidavit of Richard Winger, a noted ballot access expert. Winger is editor of the Ballot Access News website and newsletter.
Both sides had moved for summary judgment. For a summary judgment to be made, there must be no issue of material facts. The party requesting the summary judgment must show that a reasonable jury looking at the same evidence could only decide the case their way.
Therefore, Judge Stanback said he could not make a ruling and that the issue should be properly decided by a trial court. “We’re surprised, and pleased, by this ruling,” said Sean Haugh, former LPNC executive director and a plaintiff in the suit. “Neither side expected this result.” The trial will probably be held in March.
The LPNC initiated the suit in September 2005 and was later joined by the Green Party. Several individual Libertarian and Green party members and candidates are also listed as plaintiffs.
The suit asks the court to declare invalid all North Carolina’s statues regulating political parties. This includes the number of signatures required to get on the ballot and the number of votes need to retain ballot status. “We’re depriving the citizens of an opportunity to make better choices because you only have two parties,” said Barbara Howe, LPNC chair.
Libertarians content North Carolina has arguably the most restrictive ballot access requirements in the nation. To be recognized under state law, a new party must collect signatures from two percent of the number of people who voted in the previous presidential or gubernatorial election.
This equates to about 70,000 signatures, five times more than the median requirement of any other state with similar rules. Then, the new party must get two percent of the vote for president or governor to maintain state recognition.
As I sat through that the oral arguments presented the case quite well, and I jotted down some notes and thoughts. Here is a synopsis. Once the State finished its presentation, Michael Crowell, representing the LPNC, observed that the oral arguments just presented were not part of the record, in that they were not in any of the documents the State submitted to the court. He also noted that the State had chosen not to depose Mr. Winger.
Crowell made the point that since the signature requirement for ballot access is a percentage and North Carolina’s population is increasing, the actual number will always increase. And even though other states may have higher percentages, the actual number of signatures may be less. For example, Oklahoma requires three percent, but that equates to only
40,000 signatures.
The State’s attorney countered that each state was a “different situation.”
One example of the unfairness of the State’s laws Crowell noted was that individuals can donate up to $4,000 to recognized political parties, but cannot give that same amount to parties not recognized by the State. He emphasized that the LPNC has spent $100,000 to $150,000 in order to complete prior ballot access drives.
At this point, I could not help but thinking that if politicians are really concerned about “too much money in politics” this is a perfect area for them to make real reform by making it easier for the average guy to run for office in the first place.
One of the State’s major arguments was that the ballot restrictions were necessary in order to prevent “ballot clutter” and “voter confusion. Crowell dismissed this as a “red herring.” Gary Bartlet, director of the State Board of Elections testified in his affidavit that the so-called ballot clutter in 2000 was due to the large number of state-wide offices, including ten Council of State members, on the ballot, and that the problem of a “long ballot” has been resolved.
Since the State has chosen to elect so many offices state-wide, Crowell said it cannot claim “ballot clutter” and limit the voter’s free choice because of this decision.
Another thought then occurred to me. How is it “ballot clutter” and “voter confusion” when nearly half the seats in the General Assembly went unopposed in 2000 and 2004? Yes, voters are confused. But they are confused as to why they have no choice at the polls.”
History also doesn’t support the claim of “ballot clutter.” From 1929 to
1981 North Carolina required only 10,000 signatures for a new party, yet only three or four parties appeared on the ballot in those years, Crowell noted. Even in 1981, when the threshold was lowered to 5,000 and only four parties were on the ballot (Democratic, Republican, Libertarian and Socialist Workers).
Both sides had a different take on what the judge could or should do, and what the law was.
The State said the plaintiffs needed to prove “beyond a reasonable doubt” that these laws deny their rights, and they had not done that. The LPNC and Greens contend that the State needs to show they have “compelling interest in restricting ballot access and uses the “least restrictive” means to do so, and they had not done that.
One of the most interesting points and counterpoints came when the State said Federal Courts have upheld ballot access restrictions, specifically the two percent rule, based on the view that such laws are “presumed to be constitutional” because they are made “by the people.”
Crowell countered by saying the State cannot claim “the people,” through the legislature, made these rules because some of “the people” were excluded from the decision-making process.
At one point, the judge said that it appears we were asking him to substitute his judgment for that of the legislature, and he wasn’t going to do that. I thought, “Why not, other courts, the U.S. Supreme Court, do it all the time.”
Me thinks it will be an interesting trial.
Read more of Irving’s rants at the Liberty Points Blog or visit www.libertypoint.org.
