On July 6, the Fourth Circuit issued an opinion in Buscemi v Bell, 19-2355, a North Carolina ballot access case. The Fourth Circuit said the March 3 petition deadline for independent candidates, even presidential candidates, is constitutional. This completely contradicts the U.S. Supreme Court opinion Anderson v Celebrezze, 460 U.S. 780, which struck down Ohio’s independent presidential petition deadline of March 20. Furthermore in the Ohio case, only 5,000 signatures were required; but in North Carolina in 2020, independent candidates need 70,666 signatures.

The decision does not mention Anderson v Celebrezze’s holding. Nor does it mention Anderson v Morris, 636 F.2d 55 (1980), in which the Fourth Circuit invalidated the Maryland independent petition deadline, which by coincidence was also March 3. The Fourth Circuit now says it is constitutional to put the independent candidate deadline on the date of the primary, or the day before. That may be true for independent candidates for non-presidential office, but it is not true for presidential independent candidates. If that were true, it would have been constitutional in 2008 for New Hampshire to have had an independent presidential petition deadline of January 8.

The decision also upholds the number of signatures, even though it is a number six times as high as the number of signatures for a new party. In 2004 a U.S. District Court in North Carolina ruled that it is unconstitutional for a state to require more signatures for a statewide independent candidate than for a new party. DeLaney v Bartlett, 370 F.Supp.373 (m.d.). The new Fourth Circuit opinion does not mention DeLaney v Bartlett. The decision also does not mention a 1980 decision of the eastern district of North Carolina, Greaves v State Board of Elections, 508 F.Supp.78, which struck down the April 25 deadline for independent candidates for all office.

Nor does the decision mention the U.S. Supreme Court opinion Mandel v Bradley, 432 U.S. 173, which said that early non-presidential independent deadlines are unconstitutional if the historical record shows that few independent candidates ever qualify. In the entire history of North Carolina government-printed ballots, only once has any independent statewide candidate ever qualfied.

The decision is by Judge Barbara Keenan, an Obama appointee; and signed by Judge Diana Gribbon Motz, a Clinton appointee; and Pamela Harris, an Obama appointee.