On March 18, North Carolina filed this response brief in Greene v Bartlett, the case pending in U.S. District Court over the state’s ballot access laws for independent candidates for U.S. House. They are so severe, they have never been used for U.S. House, in the entire history of government-printed ballots in North Carolina. North Carolina has used government-printed ballots since 1901.

The brief depends on three separate points. First, North Carolina is in danger of having a crowded ballot if the law is eased. The brief says that 10 statewide state offices are elected in presidential election years, which makes for an overly-crowded ballot. Of course, in midterm years, North Carolina doesn’t elect any statewide offices, except sometimes a U.S. Senate seat is up. If the state is serious about this argument, one would expect that the law would provide for easier ballot access for independents in midterm years than in presidential years.

Second, North Carolina says that even though no independent for U.S. House has ever qualified, 80 independents have qualified since 1992 for State House, and for county office. The law requires independent candidates for district and county office to submit a petition of 4% of the number of registered voters. Of course, there is a big difference between submitting between 15,000 and 20,000 valid signatures (which are required in each U.S. House district in North Carolina), versus qualifying as an independent in a small population county, in which the 4% formula may require as few as 150 signatures. It is significant that the state can’t find even one instance when an independent qualified for State Senate.

Finally, the state says that the U.S. Supreme Court in 1971 in Jenness v Fortson upheld petition requirements of 5% of the number of registered voters, in Georgia. This is true. However, the Court noted in Jenness that a petitioning candidate had successfully qualified in each of the two previous elections before Jenness v Fortson was filed. Clearly, the Supreme Court never meant to endorse a ballot access law that is so difficult, it is never used or virtually never used.

The state also raises procedural objections, saying the plaintiff, Bryan E. Greene, only submitted 805 signatures. However, three times, the U.S. Supreme Court has accepted standing for plaintiffs in ballot access cases who had submitted no signatures whatsoever. They are the Socialist Labor Party of Ohio in 1968, in Williams v Rhodes; Gus Hall in 1972 in California, in Storer v Brown; and Jim Lendall, independent candidate for the legislature in Arkansas in 1976 (he won a lower court ruling against the independent candidate deadline, and the U.S. Supreme Court summarily affirmed it; when he brought the case he had not submitted any signatures).

The Portland, Maine daily newspaper, the Portland Press Herald, has this editorial in its March 17 issue. The editorial says it is now too easy for an independent candidate to get on the November ballot.

This is ironic, because in 2008, Maine was one of only three states in which there were no minor party or independent candidates on the November ballot for any congressional race or any statewide state office race. The others were Alabama and Washington. Two independent candidates in Maine made serious attempts to get on the ballot for Congress in 2008, but one, Herb Hoffman, was challenged by the Democratic Party and removed from the ballot. The other, Laurie Dobson, was disqualified because even though she submitted her petitions by the legal deadline for handing them in to the town clerks, the town clerks were unable to check them in time.

The editorial makes several errors of logic. The newspaper does not believe that people should run for office unless they have the capacity to win, or at least come close. It does not follow, though, that just because one holds that view about whether candidates should run, that therefore one believes that the law should prevent such candidacies. Any ordinary person may frown at all sorts of behaviors, but will not necessarily advocate that such behaviors be made illegal.

Another problem with the newspaper’s position is that Maine permits anyone to file as a declared write-in candidate. No fee or petition is required. If the law were altered to make it even more difficult to run for office, that would merely increase the number of declared write-in candidates. It costs election administrators more money to count a write-in vote than it does to count a vote for someone who is on the ballot.

The editorial says having candidates on the ballot who can’t win forces the better-supported candidates “fight” for attention. But, in reality, anyone is free to sponsor a debate and invite only the better-supported candidates. Lesser-supported candidates are often ignored. Their presence on the ballot does not force the bigger candidates to struggle for attention. Thanks to Thomas MacMillan for the link.