On May 20, Thursday, at 2:30 pm, a North Carolina Superior Court will hear oral arguments in Brody v North Carolina State Board of Elections, 10cvs-3216. This is a case that raises an issue that has apparently never before been argued. It concerns whether an independent candidate should be required to submit a hefty petition for ballot access, in addition to a filing fee, if the independent candidate already proved he or she has a modicum of voter support based on results in the last election.

Mark Brody qualified for the November 2008 ballot as an independent candidate for the State House. He polled 30%. He is running for the same seat again this year. He is willing to pay the filing fee, but he is not willing to obtain 2,367 valid signatures from within his district, because he argues that a petition for him is redundant, because of his 9,184 votes in the November 2008 election.

All states have procedures for an independent candidate to get on the general election ballot for any partisan office (although two states, Washington and Hawaii, require independent candidates for most partisan offices to run in the first round and do well there first). No state except Georgia lets an independent candidate’s showing in one election count toward the independent getting on in a following election for the same office. Georgia says if an independent candidate wins, he or she is on the ballot automatically in the next election, but the candidate must pay the filing fee in both elections.

For those who may wish to attend the hearing, it is in room 6310 of the Mecklenburg County Courthouse in Charlotte. The lawsuit also challenges another North Carolina election law, which says that an independent candidate may not be identified on the November ballot as an independent candidate. Instead, he or she must have the label “Unaffiliated.” Similar lawsuits won in the Massachusetts Supreme Court and the Minnesota Supreme Court in the past.