On May 10, U.S. District Court Judge Graham C. Mullen, a Bush Sr. appointee, refused to grant an injunction against North Carolina’s May petition deadline for newly-qualifying parties. Here is the 17-page order. The plaintiffs argue that a May petition deadline, at least as applied to presidential elections, violates Anderson v Celebrezze. The case was filed by the Constitution Party and the Green Party, and is called North Carolina Constitution Party v Bartlett, 3:12-cv-192, western district.

The order says the lawsuit should have been filed earlier in the year. The lawsuit was filed on March 27, 2012. The order says, “Defendants will be harmed by Plaintiffs’ delay because Plaintiff’s delay threatens to significantly disrupt the election process. As the Fourth Circuit recently noted, ‘applications for a preliminary injunction granting ballot access have been consistently denied when they threaten to disrupt an orderly election’. Perry v Judd.”

Perry v Judd was filed by several Republican presidential primary candidates against Virginia’s ban on out-of-state circulators. The judge in Perry v Judd refused to put Rick Perry, Newt Gingrich, and Rick Santorum on the Virginia March 6 primary because their lawsuit had been filed on December 27, 2011, only 70 days before the primary. In the current North Carolina case, the lawsuit was filed 224 days before the election, so the judge’s analogy is a poor one.

The order also says that the number of signatures is constitutional, but does not even discuss the precedents that say a petition deadline that early, in the context of a presidential election, is unconstitutional. The order also ignores the fact that in 1988 and 1992, the North Carolina State Board of Elections was so sure the deadline is unconstitutional, it set aside the deadline and did not enforce it. In 1988 the Board let the New Alliance Party submit its petition in July, even though the deadline back then was in May, just as it is today. The order also fails to acknowledge that in Anderson v Celebrezze, the U.S. Supreme Court said states have less interest in restrictive ballot access laws, than they do for office other than President. The order does not mention Bergland v Harris, in which the 11th circuit says even a 2.5% petition, as applied to President, may be unconstitutional. Plaintiffs will appeal.