Greaves v. STATE BD. OF ELECTIONS OF NC

• Decision Date: 09 December 1980
• Docket Number: No. 80-526-CIV-5.,80-526-CIV-5.
• Citation: 508 F. Supp. 78
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Percy L. GREAVES, Thornton M. Long and Owens H. Browne v. STATE BOARD OF ELECTIONS OF NORTH CAROLINA, R. Kenneth Babb, Mrs. Ruth Semashko, Dr. Sydney Barnwell, Mrs. Charles L. Herring, and John L. Stickley.

508 F. Supp. 78

Percy L. GREAVES, Thornton M. Long and Owens H. Browne v. STATE BOARD OF ELECTIONS OF NORTH CAROLINA, R. Kenneth Babb, Mrs. Ruth Semashko, Dr. Sydney Barnwell, Mrs. Charles L. Herring, and John L. Stickley.

No. 80-526-CIV-5.

United States District Court, E. D. North Carolina, Raleigh Division.

December 9, 1980.

Jerry W. Leonard, Raleigh, N. C., for plaintiffs.

James Wallace, Jr., Deputy Atty. Gen., N. C. Dept. of Justice, Raleigh, N. C., for defendants.

ORDER

DUPREE, Chief Judge.

This action is before the court on the parties' cross motions for summary judgment. Plaintiffs seek a declaration that certain provisions of the election laws of North Carolina relating to independent candidates are unconstitutional and an injunction prohibiting enforcement of those laws. The facts are not in dispute and the case is ripe for disposition.¹ The court having found that plaintiffs are entitled to relief, their motion for declaratory and injunctive relief is granted.

Plaintiff Percy L. Greaves is a resident of New York who sought a position on the North Carolina ballot as an independent candidate for President in the November 4, 1980 general election. Plaintiff Owens H. Browne, a resident and qualified voter of North Carolina, sought to be a Presidential Elector for Greaves. Plaintiff Thornton M. Long is a resident of North Carolina who desired to vote for Greaves in the general election. The defendant State Board of Elections of North Carolina ("the Board") is responsible for administering statewide elections in North Carolina. The individual defendants constitute the duly appointed Chairman and members of the Board.

Access to the ballot for independent candidates for the office of President is governed in North Carolina by G.S. § 163-122. This statutory provision which limits independent candidacies to persons who file nominating petitions signed by qualified voters equal in numbers to 10% of those who voted for Governor in the last gubernatorial election. The nominating petitions must be filed on the last Friday in April before the general election.² In 1980 this scheme required independent candidates to produce over 166,000 signatures by April 25, 1980. Anderson v. Babb, 632 F.2d 300, at 303 (4th Cir., 1980).

It appears from the complaint that representatives of Greaves submitted a timely petition seeking to nominate him as an independent candidate for President and plaintiff Long as an elector for Greaves. The petition did not have the number of signatures required by G.S. § 163-122; and for that reason defendants refused to take possession of the petition and did not put Greaves' name on the general election ballot. Before the election Greaves sought in this court and was denied a temporary restraining order to require defendants to put his name on the ballot. Greaves now renews his assertion that G.S. § 163-122 unconstitutionally limits access to the ballot.

It is clear beyond doubt that substantial "restrictions on access to the ballot burden two distinct and fundamental rights, `the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.'" Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979) quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). When a state statute classifies voters or candidates in such a fashion as to limit these rights, the state must establish that its classification is necessary to serve a compelling interest, Illinois State Board of Elections v. Socialist Workers Party, supra; Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); Williams v. Rhodes, supra at 31, 89 S.Ct. at 10-11, and that it is the least drastic means available to achieve the legitimate state interest. Illinois State Board of Elections v. Socialist Workers Party, supra at 185; Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 714 (1974); Williams v. Rhodes, supra at 31-33, 89 S.Ct. at 10-12. The Fourth Circuit has recently restated these analytical principles as follows:

In determining the validity of such a restriction, we perceive that we must consider two factors: first, is the restriction necessary to serve a substantial state interest and second, if so, is it unduly burdensome on the right of an independent candidate to gain access to the ballot.

Anderson v. Morris, 636 F.2d 55, at 57 (4th Cir. 1980).

THE SIGNATURE REQUIREMENT

Greaves contends that the number of signatures required by G.S. § 163-122 is so high as to unconstitutionally burden his right of access to the ballot and further that this provision discriminates against independent candidates when compared with candidates of political parties. The Board seeks to justify the signature requirement by relying on Storer v. Brown, supra, for the proposition that a state may impose such petition requirements as "a reasonably diligent independent candidate" can be expected to meet in the context of the state's politics. Storer v. Brown, supra 415 U.S. at 742, 94 S.Ct. at 1285.

In Storer the court addressed a California requirement that an independent candidate file a petition signed by voters numbering at least 5% of the total votes cast in the state's last general election. The signatures could be obtained only during a 24-day period following the primary and ending 60 days prior to the general election. Storer, supra at 726-27, 94 S.Ct. at 1277-1278. In remanding the case for further factual development, the court noted that a requirement greater than 5% "would be in excess percentagewise, of anything the Court has approved to date as a precondition to an independent's securing a place on the ballot...." Id. at 739, 94 S.Ct. at 1283.³ The Court's reference to the "reasonably diligent independent candidate" was meant to guide the lower court in resolving a close case, where the state had already demonstrated the important nature of its interest in assuring that a candidate had significant support, and where the extent of the burden on the plaintiff was unclear. This guidance did not in any way abrogate the strict scrutiny standard announced in Williams v. Rhodes, and most recently reaffirmed in Illinois State Board of Elections v. Socialist Workers Party, supra. More importantly, the present case is not a close one.

Of the 50 states, 24 require nominating petitions with a fixed number of signatures for an independent candidate for President to gain a place on the ballot. Of these 24, 22 require 10,000 or fewer signatures, one requires 20,000, and one requires 25,000. Twenty-six states require a fixed percentage, either of registered voters or of the number of votes cast in the last election. Of these 26, 20 require less than 5%, 5 require 5%, and North Carolina requires 10%. Appendix to Memorandum in Support of Plaintiff's Motion for Summary Judgment and for Injunctive Relief. North Carolina stands out dramatically among the 50 states in establishing an onerous burden on ballot access; its 10% requirement is twice as high as the next highest state's, and the result that 166,000 signatures must be obtained is more than six times as high as the number required by the highest fixed-number state.

In Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971), the Supreme Court upheld a 5% signature requirement as a valid means for the state to insure that candidates possess a modicum of popular support and that voters are not confused by a ballot crowded with obscure candidates. The Court has not upheld a requirement any higher than 5%, and in Storer, supra, remanded a case for further factual development on the question of whether the California 5% requirement operated in fact as a higher percentage because of the exclusion of a substantial number of voters from the pool of potential signers. Id. 415 U.S. at 740, 94 S.Ct. at 1284. Dissenting from the remand on the grounds that the record before the Supreme Court sufficiently established that the California provision actually operated to require 9.5%, Justice Brennan stated that "a percentage requirement even approaching the range of 9.5% serves no compelling state interest which cannot be served as well by less drastic means... Even conceding the substantiality of its aims, the state has completely failed to demonstrate why means less drastic ... will not achieve its interests." Id. at 764-66, 94 S.Ct. at 1295-1296. See also, Lendall v. Jernigan, 424 F.Supp. 951 (E.D.Ark.1977), aff'd., 433 U.S. 901, 97 S.Ct. 2963, 53 L.Ed.2d 1086 (1977) (10% requirement unconstitutional); American Party v. Jernigan, 424 F.Supp. 943 (E.D.Ark.1977) (7% requirement for new parties unconstitutional); Socialist Labor Party v. Rhodes, 318 F.Supp. 1262, 1268, (S.D.Ohio 1970) (7% for new party unconstitutional).

Looking beyond the specific statute in issue, the court notes that North Carolina grossly discriminates against those who choose to pursue their candidacies as independents rather than by forming a new political party. A group of voters seeking a place on the ballot as a new party must submit petitions signed by only 10,000 voters, less than one sixteenth the number required of an independent candidate. G.S. § 163-96(a)(2). The state has asserted no rational basis, much less any compelling interest, for this disparate treatment. Furthermore, a candidate desiring to run in the North Carolina Presidential Preference Primary must submit only 10,000 signatures. G.S. § 163-213.5. Again, no rational basis has been asserted for the enormous difference.

Accordingly, that portion of G.S. § 163-122(1) which requires an independent candidate for President to file written petitions signed by qualified voters equal in number to 10% of those who voted for Governor in the last gubernatorial election is declared to be an...