Sometimes an issue arises in the public that defies categorization as liberal, conservative, left or right. The Libertarian and Green parties challenge to North Carolina's ballot access laws is one example. The cause has made allies of a disparate coalition of political and public advocacy groups who otherwise would be on opponents.
“The issue transcends differences,” said Wayne Turner, Green Party co-chair. “Anyone with a basic concept of participatory democracy recognizes that the current system disenfranchises a large swath of the voting public, and offers only the illusion of choice to the rest.”
“It is our hope that we can debate with Libertarians, Constitutionalists, and Independents, as well as other parties, the merit of our respective ideas on the floors of the state legislature in the near future,' he said.
The North Carolina Institute for Constitutional Law submitted an amicus curiae brief, focusing on the argument that the Appeal Courts incorrectly applied the strict scrutiny standard in determining the constitutionality of the state's election laws. Nine other organizations filed a joint amici brief presenting several “compelling policy interests” they assert would benefit North Carolina citizens if the Supreme Court were to apply the strict scrutiny standard correctly and rule the ballot laws unconstitutional.
The Southern Coalition for Social Justice, Democracy North Carolina, FairVote Action, the League of Women Voters-NC, Common Cause North Carolina, 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 joined in that joint brief.
“Our concern is that their not be excessive barriers to people's ability to serve in public office,” said Bob Hall, Democracy North Carolina executive director. “The threshold should not be so high that it prevents people who represent an organized party from even getting their name on the ballot.”
Robert Orr, NCICL executive director and a former N.C. Supreme Court justice, said that the Appeals Court ruling was wrong because when a fundamental right is concerned, the presumption of constitutionality does not lie with the State. “Rather, the State, and not the individual citizen whose rights have been trampled, must bear the burden of showing that laws comply with the constitution,” he said.
The NCICL contends that the lower court erred on three points: when it ruled that the law was presumed to be constitutional presumption while applying a strict scrutiny analysis; when it held that the law was was narrowly tailored to advance the State's interest, and; when it “failed to construe the state constitutional provisions which protect and direct the electoral process in North Carolina.”
Strict scrutiny is the highest level of judicial scrutiny applied to a law that allegedly violates equal protection in order to determine if it is narrowly tailored to serve a compelling state interest, according to FindLaw.com.
Presumption of unconstitutionality
“Courts have consistently and clearly stated not only that a presumption of constitutionality is inappropriate in strict scrutiny analysis, but the counter-presumption -- a presumption of unconstitutionality -- is the rule of constitutional jurisprudence,” the brief notes.
This is a “well-formed constitutional doctrine,” the brief argues, and the N.C. Supreme Court has previously recognized that when the strict scrutiny standard is applied, “the burden lies with the State to establish the constitutionality of its act, not with the plaintiff to establish its unconstitutionality.”
By not correctly applying strict scrutiny, the Appeals Court also deviated from prior rulings of the Supreme Court and other courts, the brief says. The court “substantially misapprehended and misapplied the narrowly tailored prong of strict scrutiny analysis” and when it used “somewhat circuitous language” to dismiss the plantiffs' argument that the two percent threshold was not narrowly tailored.
State law requires a new party's presidential or gubernatorial candidate to receive two percent of the vote in order for the party to remain on the ballot.
In their ruling, two of the three judges acknowledged that the State has used a lower threshold than two percent. Yet the still held that the two percent standard was “as narrowly defined tailored as it could have been.” Nor did the court explain “how the State's interest could be both accomplished at a 'considerably lower threshold' and be the 'least drastic means' available to accomplish its objective,” the brief notes.
Rather than attempting to resolve this tension the Appeals Court “appeared to focus on the deference it believed it owed the Legislature, not the strict scrutiny it owed the plaintiffs,” the brief observes.
This reasoning creates “concerning constitutional precedent and weakens the standard of strict scrutiny itself,” the brief asserts.
'Unique body of law'
Finally, the NCICL brief argues that the state constitution is a “unique body of law” which grants rights to citizens and imposes restrictions on how the State can regulate the electoral process. These include the guarantees of free elections and the right of the citizens to vote and run for office, provisions entirely absent from the Federal Constitution.
The lower court's ruling relied heavily on Federal law and precedent and decisions of courts in other jurisdictions and under other constitutions, thus denying a fair hearing to the plaintiffs claims that their rights had been violated under the N.C. Constitution, the brief contends.
The joint brief, written by Southern Coalition attorney Allison Briggs, argues that increased political participation and competition resulting from easier ballot access laws can increase political accountability. Promoting accountability is a “compelling policy justification for minimizing the ability of major party incumbents to enact self-serving laws” that restrict the ability of minor parties to “fully participate in the political process,” the brief says.
The brief notes the high percentage of uncontested seats, particularly in North Carolina where in 2004 and 2006 half of the General Assembly members ran unopposed. Such contests not not only deprive voters of choice, they also deprive them of the chance to communicate with their elected officials.
“An essential element of political accountability involves elected officials listening and being responsive to the needs of their constituents, and when elected officials go unchallenged in a race, the pressure to do this is less,” the brief notes. It cites studies that show the presence of even a weak challenger “compels incumbents to engage in increased voter communication.”
The brief also cites studies that show third party candidates in a race can produce higher voter turnout.
Minor parties often bring new ideas to the table which may benefit the public. “Third or minor parties historically have made enormous contributions to the political process in this country by raising policy issues that the major parties have ignored,” the brief claims. For example, anti-monopoly and labor laws, women's suffrage, the direct election of U.S. Senators and the graduated income tax were all ideas first promoted by third parties.
Finally, the joint brief argues that North Carolina's ballot access scheme interferes with freedom of association and deprives citizens of a traditional means of voicing dissent. It assets “the traditional two-party domination promoted by the state's ballot access laws is not meeting the needs of the voters.” As evidence, the brief notes that one-fifth of the state's electorate are unaffiliated, and that number is rising while registration in both major parties continues to decline.
Further reading: LPNC vs. The State