Historic ballot access lawsuit reaches N.C. Supreme Court

A coalition of civil rights and public policy advocacy groups from across the political spectrum has joined the North Carolina Libertarian and Green parties in their lawsuit challenging the constitutionality of the state's election laws.

The appeal in the five-year old case will be heard by the N.C. Supreme Court, possibly in May. The lawsuit claims North Carolina's ballot access restrictions violate the state constitution, which guarantees that all elections shall be free and that with very few restrictions every voter shall be eligible for election by the people to office.

Several groups submitted a joint amici curiae brief in February. They are the Southern Coalition for Social Justice, Democracy North Carolina, FairVote Action, the League of Women Voters-NC, Common Cause, North Carolinians for Free and Proper Elections, the John Locke Foundation, the N.C State Conference of Branches of the NAACP and the N.C Center for Voter Education. In addition, North Carolina Institute for Constitutional Law submitted a separate amici brief.

The lawsuit contends that the N.C. Court of Appeals erred when it upheld the lower court ruling upholding the laws. The appeal asks for a de novo review, a procedure in which the Supreme Court will consider the matter anew and may substitute its own judgment for that of the trial court.

“The Supreme Court will review what is already in the record,” explained Adam S. Mitchell, attorney for the LPNC. “The standard of review is about how much weight (if any) the trial court’s findings are given.”

The appeal argues that since the state's ballot access statues burden fundamental rights, under the state constitution they can only be upheld by the court “if they are narrowly tailored to advance a compelling governmental interest.”

At trial, the state offered no factual evidence, no witnesses, no research and no studies to support its contention that the laws were necessary to avoid “voter confusion” a proliferation or parties or other problems with elections.

“To the contrary, the State's witnesses admitted that the State has never studied the issues of ballot clutter and voter confusion,” the brief states.

The state's top two elections officials testified that the state's greatest problems in recent years were caused by splitting precincts in drawing legislative, judicial and other electoral districts, thereby requiring election officials to offer multiple ballot styles.

Gary Bartlett, the state elections director, and Johnnie McLean, the deputy director, referred to the 1996 election, when five parties qualified for the ballot. The difficulties they cited were not voter confusion, but the result of insufficient space on voting equipment, a problem compounded by the need for multiple ballot styles for split precincts.

The brief argues that not only has the State failed to establish that any elections problems were caused by voter confusion, ballot clutter, or multiple parties on the ballot, but that the State's own witnesses established the problems were caused by other factors.

The appeal urges the Supreme Court to correctly apply the concept of strict scrutiny to the state's ballot access laws. This means the State must prove is uses the “least drastic means available” to achieve any “compelling interest” to restrict the number of parties on the ballot.

Richard Winger, the foremost national expert on ballot access, testified that North Carolina's two percent threshold was a “a terrible burden. In effect, it's a gigantic filing fee...” for third parties. He said that only four times in U.S. history has a new or previously unqualified political party met a petition requirement as high as North Carolina's 2008 requirement of 69,734 signatures.

“It is undisputed that North Carolina had no substantial problems with its ballots from 1929 to 1981, when it required only 10,000 signatures for ballot access,” the appeal argues. When the signature requirement was decreased briefly to 5,000 in 1982, only four parties appeared on the ballot, two less than in 1980.

Bartlett testified at trial that cutting the petition requirement in half would serve the State's purpose, the brief said.

The appeal also argues that states may interpret their own state constitutions to protect rights not mentioned in the Federal Constitution. In her dissent to the Appeals Court decision, Judge Ann Maria Calabria noted that, “States remain free to interpret their own constitutions in any way they see fit, including constructions which grant a citizen rights where none exist under the Federal Constitution.”

In summary, the appellants argue that “the only purpose served by North Carolina's ballot restrictions is to unfairly prevent small and new political parties from taking part in elections. Voters are denied an opportunity to support the parties of their choice.”

It concludes that “The undisputed evidence in this case shows that the state could impose a far less restrictive ballot access requirement and still guarantee orderly elections. The state has thus failed to show that its ballot access laws, which burden fundamental rights of free association and expression, are the least restrictive means of accomplishing its interests.”

Summary of the appeal arguments

1. North Carolina's ballot access statutes burden fundamental rights under the state constitution.

2. States remain free to interpret their own constitutions in any way they see fit, including constructions which grant a citizen rights where none exist under the Federal Constitution.

3. Because North Carolina's ballot access statutes implicate fundamental rights under the state constitution, they can be upheld only if they are narrowly tailored to advance a compelling governmental interest

a. The State failed to meets its burden of articulating with particularity the compelling State interests protected by the ballot access statutes.

b. There is undisputed evidence in the record that North Carolina's ballot access restrictions are not the least restrictive means to achieve a compelling governmental interest.

4. The Court of Appeals majority majority erred when it applied the general presumption of constitutionality even after finding that strict scrutiny applied to this challenge.

Timeline

Sept. 21, 2005: N.C. Libertarian Party files action

April 27, 2006: N.C. Green Party joins as intervenor

May 5, 2006: Superior Court denies defendant motion to dismiss

Feb. 16, 2007: LPNC-NCGP file amended complaint

March 28, 2006: Superior Court denies summary judgment

May 5-7, 2008: Superior Court trial

May 27, 2008: Superior Court enters judgment in favor of defendants

June 10, 2008: LPNC-NCGP file notice of appeal of trial court decision

Oct. 20, 2009: N.C. Court of Appeal upholds trial court, 2-1

Nov. 23, 2009: LPNC-NCGP file notice of appeal to N.C. Supreme Court

Comments

Voting Machines Fraud should be in the lawsuits

Nice! But one major thing that these groups left out, is that the electronic voting machines are loaded with fraud and really do affect individual campaigns in North Carolina from 2004 though 2008......Until the paper ballot is return to the voting system, You will have continue fraud in highly contested campaigns where both parties control the voting process........

Can you elaborate, Justice?

Just wondered if you had believable links with documented evidence of what you are saying.

I also have heard some of the things you're saying (from both sides) but to date, I have not seen anything substantial to verify it. Yeah, I have read a couple columnists and a couple of papers and sites on the Net have offered up some examples where there were suspect counts on voting machines, but to me, an exception here and there does not actually show some kind of huge problem with the voting machines.

Of course, you could offer up data (other than obscure examples) you have collected to show where I am wrong here. I'm willing to see it so I can believe what you are saying is true.

Screw the Voters!

Yeah, I have read a couple columnists and a couple of papers and sites on the Net have offered up some examples where there were suspect counts on voting machines, but to me, an exception here and there does not actually show some kind of huge problem with the voting machines.* Foxtrot

Not really!

1. You do understand that Al Gore was screw in the 2000 Presidental election in Florida.

2. John Kerry getting screw in the Ohio presidental election in 2004. Kerry is quoted that the biggest mistake that he made in the election is that he did not turn loose the 1200 lawyers that had already found massive electric machine voter fraud on Election day in Ohio.. about half of the Republicans who control the election process ended up in jail later on. The Diebold Voter machine which is the prime suspect was expose and the Star Corporate witness for Diebold who became a whistleblower against Diebold died the day before he was to testify to a Federal Grand Jury in a unusual Plane crash.

3. North Carolina has at least three elections who were affected by voting machine fraud by Diebold. The first being in Carteret County where 4000 votes just disappear in a State wide election in 2004, that were never to this day has been accounted for which gave the election winner a Republican to a very important State Wide office. Most suspect this was a trial run by Republicans who control the system for future elections State Wide races...That election made international news by the way..In 2006 in a state wide Supreme court race, there is no question that over 400 hundred thousand votes were switch to the Republican Candiate in Black Voting districts in Norteast North Carolina...In 2008 another State wide Supreme court race the Democrat candiate got swamp by a Republican candiate which is about impossible since the Obama machine and the Democrats carry most of the State wide votes by massive numbers.

There is much more! It is suspected that Karl Rove almost decided in 2008 to use voter machine fraud once more, but the hugh polling numbers show Obama and the Democrats killing the Republicans. Rove decided on the last day of the election, if he try that again, there was too many folks watching this one and the outrage would make the 2000 Presidental election look like a grade school yard fight.

Of course, you could offer up data (other than obscure examples)* Foxtrot

All Data on the mainstream media is obscure or they are simply lying bastards since there is more info on the internet that is not control and real information comes across to defeat or confuse the establishment control Orwellian newspeak...
4. The German Government recently ban computize voter machines and now require paper ballots only.......they know and so do a lot of other people who know of this vast fraud on all democracy seeking peoples

http://voterescue.org/

http://www.bing.com/search?q=Voter+machine+fraud+in+Ohio&first=1&FORM=PERE

http://www.bing.com/search?q=Texas+against+Voter+machine+fraud&pc=ZUGO&form=ZGATBR

Start reseaching Foxtrot.......The woods are full of real sources for this vast evil

By the way Foxtrot! If you were up to your ass in screwing the American people, would you fess up or move to Costa Rica?

Good news for democracy

I don't have much faith in courts these days, but am hopeful nonetheless that this action will break open the iron grip of our two-party system.