Editor's note: The trial was still going on at press time.
The timing couldn't have been more ironic if a Hollywood screenwriter had penned the script: One day before the May 6 primary election, the Green and Libertarian parties sparred with the state in court over onerous requirements to appear on North Carolina's ballot.
At its essence, the argument before Wake County Superior Court Judge Robert Hobgood, who has the unenviable task of potentially editing the state constitution with his ruling, is about democracy in the face of a dominant, two-party system.
"We challenge the constitutionality of the whole scheme," Adam Mitchell, one of four attorneys representing the Green and Libertarian parties, told Hobgood. The N.C. chapter of the American Civil Liberties Union is assisting the Greens for free.
More than two years ago, the Greens and Libs sued the State Board of Elections over its signature requirement to be listed on the ballot. Currently, the parties must collect the number of signatures equivalent to 2 percent of the voters who cast ballots in the last gubernatorial election—69,734. After what is expected to be an historic turnout in the 2008 contest, that number could increase to at least 80,000 required signatures for third parties to be listed on the 2012 ballot.
And to remain on the ballot for the next election cycle, the party must receive 2 percent of the vote.
The percentages were set by the legislature, composed of Democrats and Republicans. In the 1980s, before the Dems were spooked by the prospect of—gasp—the Socialists successfully getting on the ballot, the requirement was lower—as few as 5,000 signatures. In 2006, a bipartisan bill to ease some of the restrictions failed at the 11th hour.
"If the legislature had done its job, we wouldn't be here," said Sean Haugh, political director of the national Libertarian Party.
On their face, the parties' arguments are compelling: The Green Party, financially unable and politically unwilling to pay professional canvassers to collect signatures, relies on volunteers to do so. As a result, the party has gathered just 15,000 signatures. And as state party co-chair Elena Everett of Durham testified, without the party listed on the ballot, "people don't know we exist."
As for the Libs, the national and state chapters have spent $125,000 over four years to pay canvassers to collect 108,000 signatures. Party members plan to turn in those signatures to the State Board of Elections this week for validation. Yet, as Barbara Howe, 2004 gubernatorial candidate for the Libs (she received a respectable 50,000 votes), testified, spending money on signature gatherers depletes the party's coffers to help its candidates run effective campaigns. "It's hard to do much else since we invested our resources on ballot access," she said.
By reinforcing the two-party system, the signature rule also requires candidates to drape themselves in the garb of a political party that doesn't truly represent their platform. For example, B.J. Lawson, who is running for the Republican nomination for U.S. Congress District 4, espouses some Libertarian beliefs, much like Republican presidential candidate Ron Paul, yet has had to defend those attitudes as if they were criminal charges.
Green Party member Mark Ortiz plans to run for Mecklenburg County commissioner, but will do so as a Democrat in order for his name to appear on the ballot. (Although Green Party member Gray Newman currently serves as Mecklenburg County Soil and Water Conservation District supervisor, that is a nonpartisan race; the word "Green" never appeared on the ballot.)
Voters also pay the price. Under the law, if a party loses ballot access, as the Libs did in 2005, voters registered for that party automatically become unaffiliated. The State Board of Elections notifies those voters by mail.
Nonetheless, federal courts have upheld stringent ballot access laws as being constitutional. Alec Peters of the N.C. Attorney General's office, which is representing the state, also noted that lowering the threshold could clutter the ballot. North Carolina's ballot is already lengthy because of the number of Council of State races that are elected: 10.
However, Richard Winger, publisher of the California-based Ballot Access News, told the Indy before his testimony that South Carolina elects nine Council of State races; Mississippi has eight. Both states have lax requirements: The former mandates a party gather 10,000 valid signatures and run one person for statewide office. The latter has no requirement. Neither state has had problems with rogue parties cluttering the ballot, Winger said.
Most third-party candidates generally don't run for Council of State seats, Winger added, concentrating on local offices, legislative seats or, for the very ambitious, governor. In North Carolina, there is plenty of room in the legislative races for third parties. Nearly half of the races for General Assembly are unopposed in either the primary or the general election.
While the parties' testimony was strong, Karen Long, of the N.C. Attorney General's office, dented the plaintiffs' armor when Michael Munger, the Libs' 2008 gubernatorial candidate, took the stand. When the Duke University political science professor testified about the definition of a political party, he stated that the "ability to run but not win raises questions about the party's viability." Long then asked Munger how many times from 1992 to 2004—when the Libs were listed on the ballot—that a party member won a race. The answer: None.
The trial is expected to conclude May 7, although Judge Hobgood may not rule until later this month.
While the Greens and Libertarians make strange bedfellows, in this lawsuit, they are allied. "Generally, we like each other," Haugh said. "It's fun to be in this fight with them."
Correction (May 9, 2008): The retention requirement is 2 percent, not 10 percent. See comment thread below.