On October 20, U.S. Supreme Court Justice Anthony Kennedy referred Doe v Reed to the full U.S. Supreme Court. Previously Kennedy had been handling the matter himself, because he has jurisdiction over certain motions relating to the 9th circuit. It is not at all surprising Kennedy referred the matter to the full Court, since the Court is in session now. See this Seattle Post-Intelligencer story. The case number in the U.S. Supreme Court is 09A356.

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.