On February 11, independent candidate Mark Brody filed a lawsuit in Mecklenburg County, North Carolina, Superior Court, challenging the state ballot access laws for independent candidates. It is Brody v State Board of Elections, 10cvs-3216.

Brody successfully petitioned in 2008 as an independent candidate for the State House, district 103. In a two-person race against a Republican, he polled 9,184 votes. His opponent, Jim Gulley, won with 20,798 votes. Brody was required to collect 2,197 signatures for that 2008 race.

His 2010 lawsuit argues that he should not be required to re-petition, in order to again run as an independent candidate for the same seat. He argues that it is not logical to require a new petition, because the new petition would require 2,367 valid signatures, but he obviously has voter support, because he polled 9,184 votes in 2008. The idea that parties should be on the ballot automatically, based on their vote totals from the previous election, is deeply embedded in state ballot access law. As far as is known, this is the first lawsuit in which an independent candidate has argued that independent candidates should also benefit from the presumption that past election results are an accurate indicator of current voter support.

The lawsuit also notes that he is willing to pay the filing fee, and asks what the purpose of the petition is, given the existence of the filing fee. Independent candidates in North Carolina were not required to pay filing fees until 2006. When the legislature added a filing fee requirement for independent candidates, the legislature did not in any way ameliorate the independent candidate petition requirement.

North Carolina’s independent candidate petition requirements are also under attack in federal court in a lawsuit called Greene v Bartlett, and the new/minor party petition requirements are under attack in the State Supreme Court.