Small Parties Put Up Big Fight for Ballot Access in North Carolina

By: Collin Crookenden

Though the history of minor-party candidates dates back to long before the advent of political primaries, the solidification of the two major political parties has prohibited third-party candidates from being true challengers in presidential races. In fact, since George Wallace’s semi-successful campaign in 1968, no third-party representative has won a single electoral college vote. Instead of vying for the presidency, like Theodore Roosevelt in 1912 or Wallace in 1968, recent minor-party candidates are running to “make a statement against the two-party system.” However, the 2016 presidential election cycle highlighted the lack of faith in the two major political parties and the strengthening desire from many for strong third party or independent presidential candidates. Both major-party candidates had unfavorable ratings higher than 50% through Election Day, which activated a large push for third-party candidates on all state ballots and questioned state laws on ballot access.

The laws detailing ballot access vary greatly from state to state, but most require independent or third-party candidates to show evidence of support prior to being placed onto the ballot. In particular, North Carolina has one of the strictest set of ballot access requirements throughout the country. The three avenues of ballot access are: nomination by a political party, run as an Independent by petition, or qualify for write-in status. In order for a political party to qualify under state law, though, the party must maintain support of 2% of the total vote in the previous gubernatorial election. This retention percentage was lowered in 2007 from 10% after the Libertarian party of North Carolina filed suit in 2005, yet the bar is still seemingly prohibitively high for most minor parties. In fact, North Carolina requires the highest gross number of signatures to form a new political party with nearly 90,000 valid signatures.

Independents may access the ballot through a petition of 2% of total voters in the most recent gubernatorial election submitted in June prior to the general election. This is identical to the retention percentage necessary to remain a political party outlined above. Additionally, a candidate may have write in status, which requires a petition of 500 voters submitted 90 days before the general election. To date, no Independent candidate has garnered enough support for recognition on the Presidential ballot.

The proscription of minor candidates appearing on the ballot in North Carolina has been routinely challenged. As stated, the Libertarian party challenged the 10% retention rule, which the legislature quickly modified. In 2011, the Supreme Court of North Carolina upheld the 2% requirement for retention. In doing so, they determined that such laws are only subject to rational basis scrutiny when they do not “severely burden associational rights.” Even though two-thirds of the states require around 10,000 or fewer supporters, the Court held that the provision was not as burdensome as Georgia’s support requirement. Georgia’s legislation for ballot access requires 5% support, which results in around 30,000 fewer voters than North Carolina’s 2% rule. More recently, the Libertarian and Green parties have fought the requirements with proposed legislation such as the Voter Freedom Act. This bill, still sitting in the General Assembly, would substantially lower the requirement for retention and support for Independent candidates from 2% to .25%, thereby equaling North Carolina’s legislation with the majority of the country (around 10,000 voters).

While the 1.75% decrease of support may seem minimal, the result would allow for far more candidates to be added to the ballot as recognized nominees, rather than subjected to write-in status. The other primary focus of the law, though not addressed in the recent legislation or litigation, is on the timing of the submissions. Under the current version of the statute, both the write-in and Independent candidate petitions are due long before the general election. While the Supreme Court of North Carolina recognized the legitimate interest of the state in the area of support requirements, it did not broach the subject of whether the timing of the submissions may have infringed upon the right to vote. What may seem relatively minor (90 days before the election as opposed to 30 days) can have significant impacts on one’s right to vote. For instance, Evan McMullin is currently a valid choice in 34 states, including 11 states in which he is a recognized candidate on the ballot. Most likely, there will be only 8 states in which he will not be a valid choice for president; one of these will be North Carolina due to its strict write-in timing.

The fight for ballot access is ongoing in North Carolina, and the political landscape is shifting in the direction of more access, not less. “Rocky” De La Fuente filed suit in federal court in June of 2016. His complaint was the same as the Libertarian and Green parties’: the 2% requirement is far too stringent for Independent candidates to meet. With five years of new litigation and change, along with the obvious dissatisfaction with the major parties, he believed thoughts on severe burdens may have changed. However, De La Fuente’s case was dismissed for lack of standing on October, 11 2016. Thus, minor parties still struggle to be recognized on presidential and minor ballots, but with the unfavorable ratings rising, more people endeavor to allow access to those outside of the mainstream political sphere.

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