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N.C. SC rules in ballot access case

By Jessica M. Karmasek | Mar 17, 2011


RALEIGH, N.C. (Legal Newsline) - The North Carolina Supreme Court has upheld the decision of an appeals court, saying a 2 percent signature recognition requirement in state code imposes a "reasonable hurdle" to ballot access.

The Court, in its opinion filed Friday, said it sees "no indication" that the recognition requirements in state code discriminate against minor parties or "operate to freeze the political status quo" of a two-party system.

On Sept. 21, 2005, North Carolina's Libertarian Party filed a complaint against the state's Board of Elections, seeking a declaratory judgment to resolve whether the state's ballot access statutes violate certain rights under the North Carolina Constitution. The Libertarian Party also sought recognition as a political party and injunctive relief to keep its candidates on the ballots in various 2005 municipal elections.

On April 27, 2006, North Carolina's Green Party was allowed to intervene.

A trial court conducted a nonjury trial and on May 27, 2008, it entered judgment for the defendants -- North Carolina Attorney General Ray Cooper, the state's Board of Elections and Gary O. Bartlett, executive director of the elections board.

The state appeals court then issued its own, divided opinion on Oct. 20, 2009, holding no error in the trial court's judgment.

Both the Libertarian and Green parties appealed the state's high court based on a dissent and a constitutional question.

Justice Patricia Timmons-Goodson, who authored the Court's 18-page majority opinion, held that the appeals court erred in applying strict scrutiny but correctly concluded that state code does not violate the state constitution.

Both parties contended the right to ballot access is fundamental right warranting such scrutiny. The Court, it said, is not persuaded.

"In North Carolina, statutes governing ballot access by political parties implicate individual associational rights rooted in the free speech and assembly clauses of the state constitution," it wrote. "Indeed, ballot access rights, though distinct from voting rights, are central to the administration of our democracy.

"While these rights are of utmost importance to our democratic system, they are not absolute. In the interest of fairness and honesty, the State may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election -- and campaign -- related disorder."

The Court said strict scrutiny is warranted "only when this associational right is severely burdened."

"In the present case, the two percent party recognition requirement of N.C.G.S.' 163-96(a)(2) may burden minor political parties somewhat, but it does not impose a severe burden," it wrote.

"First, minority parties seeking recognition pursuant to N.C.G.S.' 163-96(a)(2) have over three and one-half years to acquire the requisite number of signatures. Second, section 163-96(a) places few restrictions on signatories.

"While these persons must be registered and qualified voters in this state, they need not register with or promise to vote for candidates of the party seeking recognition. Signatories are even allowed to vote in a primary of a major party."

Third, the Court explained, a handful of supporters can acquire the requisite number of signatures. It points to the 2004-2008 election cycle, in which more than 85,000 signatures were collected for the Libertarian Party by only five people.

Further, a minor party has met the 2 percent recognition requirement eight times in the past five gubernatorial elections, the Court said.

The Court said North Carolina's voter recognition requirements also are less burdensome than other states'. And unlike in some jurisdictions, signatories are not disqualified in North Carolina for having voted in another party's primary or for refusing to register as a member of the party seeking recognition, the Court noted.

Justice Barbara Jackson did not participate in the consideration or decision of the case.

Justice Paul M. Newby dissented, fearing that the state's signature requirement may "unduly" limit election ballot access.

"The majority finds the signature requirement statute to be a non-severe infringement of this fundamental right and deferentially reviews the statute. Because I believe an encroachment of this fundamental right deserves strict scrutiny, I respectfully dissent," he wrote.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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