McLaughlin v. North Carolina Bd. of Elections

• Decision Date: 27 September 1995
• Docket Number: No. 94-1711,94-1711
• Citation: 65 F.3d 1215
• Parties: Scott McLAUGHLIN, as a candidate for Governor of North Carolina and as a representative of the Libertarian Party of North Carolina; Libertarian Party of North Carolina; The Libertarian Party; Kathleen Ferrell, as a North Carolina Voter who desires to remain registered as a Libertarian, Plaintiffs-Appellants, v. NORTH CAROLINA BOARD OF ELECTIONS; William A. Marsh, Jr., in his official capacity as Acting Director of the State Board of Elections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1215

65 F.3d 1215

Scott McLAUGHLIN, as a candidate for Governor of North Carolina and as a representative of the Libertarian Party of North Carolina; Libertarian Party of North Carolina; The Libertarian Party; Kathleen Ferrell, as a North Carolina Voter who desires to remain registered as a Libertarian Plaintiffs-Appellants, v. NORTH CAROLINA BOARD OF ELECTIONS; William A. Marsh, Jr. in his official capacity as Acting Director of the State Board of Elections, Defendants-Appellees.

No. 94-1711.

United States Court of Appeals Fourth Circuit.

Argued Jan. 30, 1995.

Decided Sept. 27, 1995.

ARGUED: James Richard Glover, Glover & Petersen, P.A., Chapel Hill, NC, for appellants. Charles McKinnon Hensey, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, NC, for appellees. ON BRIEF: Ann B. Petersen, Glover & Petersen, P.A., Chapel Hill, NC; E. Clark Dummit, Dummit & Associates, Winston-Salem, NC, for appellants. Michael F. Easley, Attorney General, North Carolina Department of Justice, Raleigh, NC, for appellees.

Before ERVIN, Chief Judge, MOTZ, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Chief Judge ERVIN and Judge MOTZ joined.

OPINION

PHILLIPS, Senior Circuit Judge:

The national Libertarian Party and the Libertarian Party of North Carolina, along with Scott McLaughlin, the state party's most recent candidate for Governor, and Kathleen Ferrell, a North Carolina voter registered as a Libertarian, appeal from a summary judgment order dismissing their claims seeking a declaration that three provisions of the North Carolina election laws unconstitutionally deprive them of rights guaranteed by the First and Fourteenth Amendments and praying for an injunction against their enforcement. We affirm the district court's judgment on all counts.

I.

The relevant facts of this case are not in dispute and were presented thoroughly in the decision below. McLaughlin v. North Carolina Board of Elections, 850 F.Supp. 373 (M.D.N.C.1994). We will only summarize them briefly.

The North Carolina election laws provide exactly three ways for a candidate to secure a spot on a general election ballot ¹ for any federal, state, county, or municipal office: (1) by becoming the nominee of a major political party selected by primary election; (2) by becoming the nominee of a "new" political party selected at that party's state convention; and (3) by being nominated by petition as an unaffiliated candidate. ²

To qualify as a "new" party for purposes of ballot access, a political party must file with the Board of Elections ("BOE") by June 1 in the same calendar year as the November general election petitions signed by registered voters numbering at least 2% of the total number of votes cast in the most recent general election for Governor, ³ with at least 200 signatures coming from registered voters residing in each of four congressional districts. The party must support the authenticity of each signature by notarized affidavit and also pay to the BOE a verification fee of $.05 per signature. If the BOE determines that the petitions contain the requisite number of valid signatures, it certifies the party as a "new" party under N.C. Gen.Stat. Sec. 163-96(a)(2) & -96(b) (1994), thereby entitling the party to nominate as much as one candidate per office to appear on the general election ballot. Voters are permitted to register affiliation with a party as soon as it becomes certified. If the new party obtains voter registration affiliation equal to or greater than 5% of the total statewide voter registration, its name is sorted alphabetically with the established parties for purposes of column-assignment on the general election ballot. Otherwise, it is assigned a column to the right of the columns assigned to the candidates of the established parties. N.C. Gen.Stat. Sec. 163-140.1. That is, for example, were 5% of all registered voters affiliated with the Libertarian Party, its candidates would appear on the ballot between the Democratic and Republican candidates. Were the Libertarians to become certified as a "new" party yet fail to attract 5% of registered voters, then its candidates would be listed third after those nominated by the two major parties.

If a party's nominee for governor or for president polls at least 10% of the votes cast in the previous general election for governor or president, respectively, then that party retains its right to nominate candidates for all state and federal offices in the next general election. We will term such a political organization an "established" political party. ⁴ Established political parties must nominate their candidates by primary election (unless only one candidate declares for that party's nomination for a particular office). Sec. 163-110. If a party fails to poll for its candidate the requisite 10% of votes cast, "it shall cease to be a political party within the meaning of the primary and general election laws." Sec. 163-97. When a party loses its ballot-qualified status, it also loses the affiliation of its registered voters. Section 163-97.1 provides that when a party "has lost its legal status as provided in G.S. Sec. 163-97," the BOE must direct all county boards of elections to change the registration of "[a]ll voters affiliated with such expired political party ... to 'unaffiliated.' " In order to regain the right to nominate candidates (as well as the right to affiliate voters), it must again become certified as a "new" party by submitting petitions signed by registered voters numbering at least 2% of the total number of votes cast in the prior general gubernatorial election.

The Libertarian Party of North Carolina was formed in 1976. It qualified for the general elections of that year by filing petitions with the requisite number of signatures. ⁵ Two other minor parties qualified as well. Because only the candidates of the Democratic and Republican Parties, Jimmy Carter and then-President Gerald Ford, exceeded the 10% threshold of 167,790 votes, the three minor parties were deemed to have expired by operation of N.C. Gen.Stat. Sec. 163-97. The Libertarian Party qualified anew prior to both the 1980 and 1984 elections but each time failed to poll as many as 10% of the votes (garnering 9677 votes for its 1980 presidential candidate and 4611 for its 1984 gubernatorial candidate). In 1988, the Libertarian Party failed to qualify as a new party. However, its candidate for President did qualify as a write-in candidate. See supra note 1. He received 1263 votes out of 2,134,370 votes cast for President. The Libertarian Party rebounded from its unsuccessful 1988 petition drive to obtain 43,620 valid signatures in its 1992 campaign--twenty more than the 2% required.

The Libertarian Party achieved unprecedented success in the 1992 general elections even though none of its candidates was elected. Three of its candidates for the state legislature received over 12% of the vote in their respective races. And the Party's candidate for Governor, plaintiff McLaughlin, polled 104,983 votes--over 4% of the total votes cast--in the gubernatorial election. However, because both McLaughlin and the Party's presidential candidate failed to reach 10% of the total vote, the Party is deemed to "cease to be a political party" for ballot access purposes, and, once the BOE so directs, the county boards of elections will change the affiliation of all 677 voters currently registered with the Party to "unaffiliated."

In February 1993, the National and State Libertarian Parties, Scott McLaughlin, and Kathleen Ferrell (collectively, "plaintiffs" or "Libertarians") filed suit in the United States District Court for the Middle District of North Carolina challenging as unconstitutional discrete provisions of the state's election laws and alleging general election improprieties not here relevant. The four specific provisions challenged were: (1) the forced voter disaffiliation provision of Sec. 163-97.1; (2) the requirement of Sec. 163-96(b) that a would-be new party pay a five-cent-per-signature verification fee; (3) the provision in Sec. 163-97 that a party "ceases to exist" for ballot access purposes unless it polls 10% of the vote in the gubernatorial or presidential elections; and (4) the mandate spelled out in Sec. 163-96(b) that a petition for ballot access as a "new" party state that "THE SIGNERS OF THIS PETITION INTEND TO ORGANIZE A NEW POLITICAL PARTY." The suit named as defendants the North Carolina Board of Elections and its acting director, William A. Marsh, Jr.

The parties entered into stipulations of fact and filed cross motions for summary judgment. Thereafter, a magistrate judge issued proposed findings and an opinion recommending that those provisions of N.C. Gen.Stat. Sec. 163-96(b) requiring notarization of the signatures on "new party" petitions and requiring payment of 5 cents per signature be declared unconstitutional, and that the Libertarians' other claims for declaratory and injunctive relief be dismissed. Over the plaintiffs' objections, the district court issued an order adopting the findings and recommendations of the magistrate, and entered a final judgment granting plaintiffs declaratory and injunctive relief on their second claim and dismissing their other claims.

On appeal, the Libertarians reassert their constitutional challenges to: the provisions of the North Carolina election laws that regulate political parties' access to the ballot; the mandated ballot-petition language; and the Voter Disaffiliation provision. The state has not cross appealed from that portion of the district court's decision below declaring Sec. 163-97 unconstitutional.

II.

The appropriate standard governing constitutional challenges to specific provisions of state election laws begins with the balancing test that the Supreme Court first set forth in Anderson v. Celebrezze, 460...