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.

Washington’s “top-two” law, in effect since 2008, is quite similar to the California “top-two” proposal that will be on the ballot in June 2010, but there are significant differences. In each instance, the Washington state version is significantly kinder to minor parties than the California proposal.

1. Washington state lets anyone running for office choose any ballot label he or she desires. For example, in Washington state a candidate for the legislature appeared on the primary ballot with “Prefers Salmon Yoga Party”, and in 2009 a candidate for County Office filed and requested the label “Prefers Grange Party”.

By contrast, the California proposal only lets candidates “prefer” the name of a qualified party. This interpretation was confirmed on October 19 by former State Senator Steve Peace, a leader in the drive to pass “top-two.” He consulted with the attorneys who drafted the California proposal.

2. Washington state will count write-ins in the general election if the vote-counting computers indicate a write-in candidate could possibly have outpolled the candidates on the November ballot. By contrast, the California proposal says write-ins at general elections are never to be counted.

3. Washington state’s primary is in late August, and California’s primary is in early June. The Washington system allows for candidates to enter the race as late as May 15 of an election year. By contrast, California’s proposal does not allow anyone to appear on a ballot unless that person enters the race by March 12 (except, theoretically, one could enter the California first round in May as a write-in, and conceivably might place first or second and thereby appear on the November ballot, but this is very unlikely). Each election year’s calendar is slightly different; those particular dates are the ones that would apply in 2010.

If the California proposal passes, California, Texas and Nevada would be the only states in which all practical routes to have one’s name printed on a ballot would be closed off by mid-March. Furthermore, Texas and 43 other states would still permit someone to enter a general election as a write-in candidate, so one could argue that California would be one of only 6 states that closes the door to any candidacy that is announced later than the summer (the earliest state deadline to be a qualified write-in candidate in November is Florida’s July 20 deadline).

4. “Top-two” does not affect presidential elections, but the California “top-two” proposal indirectly makes it more difficult for minor parties to place a presidential candidate on the November ballot. Because, under the California proposal, parties would no longer have nominees for state office or for U.S. Senate, the existing law that lets a party remain on the ballot if it polls 2% for any statewide race in a midterm year would effectively cease to exist. Therefore, all parties would go off the ballot, but those with registration of at least 1% of the last gubernatorial vote would instantly re-qualify. 1% of the last gubernatorial vote will probably be 100,000 registered members, which means the Peace & Freedom Party (which has fewer than 60,000 registered voters) would almost certainly lose its qualified status, and no longer be able to place a presidential candidate on the ballot. Peace & Freedom Party nominated Ralph Nader for president in California in 2008. If “top-two” had been in effect in 2008, this means it is overwhelmingly likely that Nader would not have been on ballot in California in 2008. The independent petition requirement in 2008 for a presidential candidate, 158,372, was so severe that Nader could not have qualified.

By contrast, Washington state lets any independent presidential candidate, or the presidential candidate of an unqualified party, appear on the ballot with a petition of 1,000 names, due in August.

One final contrast: Washington state supporters of the “top-two” system are honest enough to use that label. California supporters insist on calling the idea the “open primary”, even though the California proposal has nothing in common with the standard open primary used in over 20 states.

Dick Armey, who was Majority Leader of the U.S. House of Representatives 1995-2003, will be campaigning in upstate New York this month for the Conservative Party nominee for U.S. House, 23rd district, Doug Hoffman. See this story. Thanks to Gene Berkman for the link.

When Congressman Ron Paul was able to obtain a vote on the House floor in 1998 for the bill to outlaw restrictive ballot access laws in federal elections, Congressman Armey was the only member of Congress in a leadership position to vote for it. It was defeated 62-363.