On October 20, the North Carolina State Court of Appeals ruled 2-1 that the petition requirement, 2% of the last gubernatorial vote, does not violate the State Constitution. The plaintiffs are the Libertarian and Green Parties. This is the case that was filed in 2005. The 2% requirement for 2010 and 2012 is 85,379 signatures. North Carolina’s requirement is the second most severe in the nation, both on a percentage basis and a raw number basis, when one compares each state’s easier method for getting on the ballot for president. Here is the decision.
The Court also upheld the 2% vote test, which can be met only by a party’s presidential or gubernatorial candidate. It happens that the North Carolina Libertarian Party met this test in 2008, so it is on the ballot for 2010 and 2012 regardless of this court loss.
The dissenting judge wrote, “North Carolina’s 2% statewide requirements for both ballot access and ballot retention place too onerous a burden on the fundamental rights of members of third parties under the State Constitution”, and he also wrote that the law is especially unfair because it forces a new or previously unqualified party to either qualify statewide, or not at all.
The majority erroneously said that Texas’ ballot access law had been upheld by the U.S. Supreme Court, and that the Texas law also requires a party to qualify statewide or not at all. In fact, Texas has always had procedures for a party that is not qualified statewide to get on the ballot in a single county.
The decision completely fails to mention any of the other issues in the case, including the issue of whether the state should let voters register into parties that are not ballot-qualified. Minor parties have won cases on that issue in Colorado, Oklahoma, New York, New Jersey, and Iowa. It is somewhat likely that the decision will be appealed to the North Carolina State Supreme Court. According to this news story, because the decision was not unanimous, the State Supreme Court will automatically hear the case, if the parties ask for Supreme Court involvement.
Hopefully the State Supreme Court will hear the case. Otherwise, at this time we need to push hard for the enactment of the Electoral Freedom Act of 2011 in during the 2011-2012 Long Session of the NC General Assembly!
I have since verified that the State Supreme Court must hear the case, assuming the Libertarian and Green Parties and their attorneys want to appeal.
That sounds great!
Separate is still NOT equal.
Brown v. Bd of Ed 1954.
What genius lawyer will be the first to bring up Brown in a ballot access case ???
Sorry – too late to bring up Brown on any appeal — due to the nonstop screwups in making complaints and the FIRST brief supporting such complaints.
I believe the LPNC will appeal to the Supreme Court on this. You can donate to the appeal at lpnc.org/donate.php
In Texas, qualification for a county party is based on attendance at precinct conventions (which like for statewide parties, may be supplemented by petition). The qualifying standard is 3% of the previous gubernatorial vote in the county. In Harris County this would require 17,681 persons attend precinct conventions (and be disqualified from participating in the activities of a statewide party).
A countywide party may only make nomination for county and precinct offices (commissioners court, sheriff, constables, justice of the piece, etc.). Legislative offices are district offices, even when the district is wholly contained within a county). Texas uses non-partisan elections for municipal, school, and other special districts.
In Harris County, it would only require 500 signatures to run as an independent candidate. And even in much smaller counties the difference between party qualification and independent qualification is only 3% vs. 5%.
There is no provision for a countywide party to retain its ballot access. So it is really has rather limited utility.
The Texas provision for county parties has been used in recent years by the Reform Party, and was used by La Raza Unida Party in 1970 in Hidalgo County.
#6 is misleading because it implies that county parties need a big attendance at meetings. They do not.
How did the US Supreme Court in American Party of Texas vs. White fail to uphold Texas’s ballot access law?
The only part of the decision that overturned Texas’s law was where a party that had gained ballot access was not included on all the ballots. That is more than a little irrelevant to the North Carolina case.
American Party of Texas v White did not uphold all of Texas’ ballot access laws. The U.S. Supreme Court itself, in 1976, said that Texas’ failure to allow independent presidential candidates was unconstitutional. Also the 5th circuit in 1988 struck down Texas election laws that said a voter’s registration affidavit number must be included on petitions for minor parties. Later, the 5th circuit made the same ruling for independent candidates, and U.S. District Courts then struck down the voter registration affidavit number requirement for local initiative petitions and for petitions for primary ballot access.
Which counties and years did the Reform Party qualify as a countywide party in Texas? The RUP may or may not have qualified in Hidalgo County in 1970, due to cross-participation in statewide party activities. In any event it qualified as a statewide party in 1972.
How is my note misleading? I stated that attendance counts from precinct conventions could be supplemented by petition. Besides why wouldn’t a political party organizing to make nominations, not prefer that voters attend the conventions where the nominations are made. It is not like those voters would be doing anything else such as voting in the primary or attending a Libertarian or Green party convention.
The NC Court of Appeals decision says, “nevertheless, the Fourth Circuit ultimately upheld North Carolina’s statewide recognition and retention requirements for political parties——which were then 2% and 10%, respectively——as constitutional under the Supreme Court’s decision in American Party of Texas v. White.”
Their decision does not state that the Supreme Court upheld all of Texas’s ballot access laws.
In fact they (the NC Court of Appeals) do not even characterize the meaning of American Party of Texas v. White, but rather characterize the decision of the Fourth Circuit in McLaughlin 65 F.3d which stated, “similarly, in American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), the Court upheld a complicated Texas ballot access scheme that, in much-simplified essence, permitted political parties to gain initial access to the ballot by securing the signatures of persons numbering 1% of the total votes cast in the prior gubernatorial election, but required such parties to poll at least 2% of the votes cast in the gubernatorial election to retain their ballot access.”
It would have been totally extraneous and irrelevant to mention what the Supreme Court had ruled with regard to the absentee ballots, or certain procedural matters with regard to petitions, or the qualification standards for independent presidential candidates.
Can McLaughlin be interpreted in any other way than to mean, “The Supreme Court in American Party of Texas v. White upheld Texas percentage standards roughly equivalent to those in North Carolina.”?
The NC Court of Appeals is also referring to McLaughlin with regard to local parties. It appears that the 4th Circuit may not have fully understood the Texas law with regard to countywide parties in Texas – but see footnote 10 of McLaughlin.
But given that statewide parties may also nominate county and precinct officers, it is not as if statewide and countywide parties operate in separate domains. The elections where they are relevant occur at the same time, and participation in the nominating activities of a countywide party precludes participation in the activities of a statewide party and vice versa.
Sheesh…Guess Milnes has a cousin.
http://www.aoc.state.nc.us/www/public/coa/opinions/2009/pdf/081413-1.pdf
The above document is Judge Calabria’s partial dissent in this ruling. Very interesting reading. I agree the state should not infringe upon the rights of its voters.
Not sure if this is relevant: Reform Party of PA qualified as a county minor party in 2002 in Columbia, Carbon and Monroe counties under the Pennsylvania Election Code as a result of my vote count in the 11th Congressional Race. PA allows County Minor Party qualification based upon a vote count equal to 5% of the highest vote getter. (statewide is 2%) but, like statewide ballot access, county ballot access does not change much. This did allow us to field a State Representative candidate in a Special Election without petitioning and did set-up the cross-filing of Zulick for county Judge, while not being qualified state-wide.
#14 Probably more relevant that Texas law is to the situation in North Carolina. One problem in North Carolina was that a party would qualify statewide for a general election, lose its qualification by not getting enough votes. Even though it might regain its qualification for the next general election, it could not run candidates in subsequent local elections.
In Texas, party affiliation only applies to the nominating process in even numbered years, and Texas has non-partisan local elections. Parties do not nominate candidates for special elections. So even if a party does not maintain its qualified status, it can qualify before the next time that it is relevant.
The North Carolina Green Party is waiting on their attorneys advise on how to pursue the issue best. The feeling among Greens is to appeal the ruling.
Judge Calabria’s partial dissent in this ruling is a positive step in the right direction.
Kai Schwandes
North Carolina
Member Green National Committee