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Constitutional-First Impression – Ballot Access – Fundamental Rights – No Severe Burden – Lower Scrutiny

Libertarian Party of North Carolina v. State (Lawyers Weekly No. 11-06-0264, 25 pp.) (Patricia Timmons-Goodson, J.) (Paul M. Newby, J., dissenting) Appealed from Wake County Superior Court. (Robert H. Hobgood, J.) On appeal from the N.C. Court of Appeals. N.C. S. Ct. Click here to read the full text of the opinion.

Holding: In order for a small political party to gain access to statewide ballots, G.S. § 163-96(a)(2) requires such parties to obtain the signatures equal to two percent of the number of voters in the preceding gubernatorial election. This requirement does not violate our state constitution’s guarantee of freedom of assembly or freedom of speech.

Plaintiff’s challenge to the statute should not have been subjected to strict scrutiny. Thus modified, we affirm the Court of Appeals’ decision to uphold the trial court’s judgment.

The issue before us is whether the signature requirement for party recognition under G.S. § 163-96(a)(2) violates N.C. Const. art. I, § 12, 14, or 19.

When it comes to determining the constitutionality of ballot access provisions, we find Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), and its progeny compelling.

In Twin Cities, the Supreme Court considered whether Minnesota’s anti-fusion laws violated a minor party’s First and Fourteenth Amendment associational rights. The court reasoned that if these rights were severely burdened, the challenged statutes must be strictly scrutinized to determine whether they were “narrowly tailored and advance a compelling state interest.” If the rights were not severely burdened, the interests of the state “need only be sufficiently weighty to justify the limitation imposed on the party’s rights.”

To make this sufficiency determination, the court weighs “the character and magnitude of the burden the State’s rule imposes on [associational] rights against the interests the State contends justify that burden, and consider[s] the extent to which the State’s concerns make the burden necessary.” Accordingly, “[l]esser burdens … trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.”

We join a growing number of federal courts applying the Supreme Court’s associational rights analysis to equal protection challenges in the context of ballot access restrictions on political parties and candidates. We do so because the interests of equal protection bear a strong relationship to the associational rights protected by our state constitution’s free speech and assembly provisions.

Although the First Amendment protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas, states must enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.

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.

Because citizens form parties to express their political beliefs and to assist others in casting votes in alignment with those beliefs, such statutes inherently affect individual associational rights.

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 must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.

Not all infringements of the right to ballot access warrant strict scrutiny. Strict scrutiny is warranted only when this associational right is severely burdened.

The two percent party recognition requirement of § 163-96(a)(2) may burden minor political parties somewhat, but it does not impose a severe burden.

First, minority parties seeking recognition pursuant to § 163-96(a)(2) have over three and a half years to acquire the requisite number of signatures.

Second, § 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, a handful of supporters can acquire the requisite number of signatures. During the 2004-2008 election cycle, for example, over 85,000 signatures were collected for the Libertarian Party by only five people.

Moreover, § 163-96(a)(2) does not impose a severe burden in that the two percent signature requirement is readily achievable. For instance, in 2008 the two percent threshold required signatures from only 69,734 of North Carolina’s approximately 5,734,000 registered voters.

Further, the Libertarian Party has met the two percent recognition requirement eight times in the past five gubernatorial elections. This success indicates the party may have turned a corner in popular support, effectively graduating it from the recognition requirements of § 163-96(a)(2).

Finally, our state’s voter recognition requirements are less burdensome than the Georgia ballot access provisions upheld by the U.S. Supreme Court in Jenness v. Fortson, 403 U.S. 431 (1971).

When a state ballot access provision does not severely burden associational rights, the interests of the state need only be sufficiently weighty to justify the limitation imposed on the party’s rights. Usually, a state’s important regulatory interests will be enough to justify reasonable, nondiscriminatory restrictions.

Here, the avoidance of voter confusion, ballot overcrowding, and frivolous candidacies is an important regulatory interest. At the same time, the two percent signature recognition requirement imposes a reasonable hurdle to ballot access.

Further, we see no indication that the recognition requirements discriminate against minor parties or operate to freeze the political status quo of a two-party system.

As a result, we conclude that the state’s important regulatory interests are sufficiently weighty to justify the reasonable burden placed by § 163-96(a)(2) on appellants’ associational rights.

The Court of Appeals erred in applying strict scrutiny but correctly concluded that § 163-96(a)(2) does not violate N.C. Const. art. I, § 12, 14, or 19.

Modified and affirmed.


(Newby, J.) While the state has an interest in the orderly administration of elections, my fear is that § 163-96(a)(2)’s signature requirement may unduly limit election ballot access. Because I believe an encroachment of this fundamental right deserves strict scrutiny, I respectfully dissent. I would remand this case to allow the trial court to conduct a thorough strict scrutiny review of § 163-96(a)(2).

Traditionally, the infringement of a fundamental right demands that a court apply strict scrutiny. The majority now says that a statute limiting the fundamental right of ballot access is an exception to this rule: rather than apply strict scrutiny, a court will first evaluate the extent of the infringement, and if the infringement is not “severe,” then the court will apply a deferential review.  I believe this to be an unwarranted and imprudent departure from North Carolina’s constitutional jurisprudence.

Twin Cities is not persuasive authority for the majority’s abandonment of the strict scrutiny test for a direct burden on ballot access rights. In Twin Cities, the laws did not directly limit the party’s access to the ballot but concerned whether a candidate’s name could appear multiple times on a ballot.

Moreover, Twin Cities highlights a critical flaw in the “severe burden” inquiry: the inquiry is entirely too subjective. The federal judiciary was divided 7-to-6 regarding the severity of the burden.

The majority’s approach allows a trial court to subjectively assess the degree of burden, rather than relying upon the nature of the protected right, to determine the standard of review. Thus, a citizen, after having already established that a statute burdens a fundamental right, must now convince a court that the burden is “severe” enough, or else the court will defer to the legislature.

James Madison warned that unduly restricting ballot access could make the right to vote illusory: “It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic.” The Federalist No. 39, at 233 (James Madison) (Henry Cabot Lodge ed., 1888).

This court has consistently interpreted the N.C. Constitution to provide the utmost protection for the foundational democratic freedoms of association, speech, and voting. It is inconsistent for the majority to now afford the fundamental right of ballot access, which is clothed in this triumvirate of fundamental rights, less protection than one of these rights receives individually.

The trial court was correct to apply strict scrutiny; however, the trial court applied the standard incorrectly: the court retained the presumption of constitutionality during its strict scrutiny analysis and failed to shift the burden to the state. Because the strict scrutiny standard was not properly applied to this fundamental right, I would remand the case to allow the trial court to conduct a thorough strict scrutiny review of § 163-96(a)(2).

Today’s decision jeopardizes a quintessential component of our democracy by examining this statute under a deferential standard of review, rather than a strict scrutiny analysis.

It is within the province of the General Assembly to place necessary restrictions on ballot access. However, such restrictions burden a fundamental right, and I believe the judicial branch must strictly scrutinize them to ensure that the General Assembly imposes only narrowly tailored, necessary burdens. After reviewing the trial court’s findings, it appears a misunderstanding of our constitutional presumptions infected the trial court’s application of the strict scrutiny standard. Having clarified our precedent, I would remand this case to the trial court to strictly scrutinize North Carolina’s signature requirement statute. Accordingly, I respectfully dissent.

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