Libertarian Party of North Carolina v. State Carolina

CourtUnited States State Supreme Court of North Carolina
Citation707 S.E.2d 199,365 N.C. 41
Docket NumberNo. 479A09.,479A09.
PartiesLIBERTARIAN PARTY OF NORTH CAROLINA; Sean Haugh, as Executive Director of the Party; Pamela Guignard and Rusty Sheridan, as Libertarian candidates for Mayor of Charlotte, North Carolina; Justin Cardone and David Gable, as Libertarian candidates for Charlotte City Council; Richard Norman and Thomas Leinbach, as Libertarian candidates for Winston–Salem City Council; and Jennifer Schulz, as a registered voter, Plaintiffs,andThe North Carolina Green Party; Elena Everett, as Chair, and Kai Schwandes, as Co–Chair of the Party; Nicholas Triplett, as a prospective North Carolina Green Party candidate for public office; Hart Matthews and Gerald Surh, as members of the Party and qualified voters, Intervenorsv.STATE of North Carolina; Roy Cooper, as Attorney General of the State of North Carolina; North Carolina State Board of Elections; and Gary O. Bartlett, as Executive Director of the North Carolina State Board of Elections, Defendants.
Decision Date11 March 2011

OPINION TEXT STARTS HERE

Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, 200 N.C.App. 323, 688 S.E.2d 700 (2009), affirming an order entered 27 May 2008 by Judge Robert H. Hobgood in Superior Court, Wake County. On 28 January 2010, the Supreme Court retained plaintiffs and intervenors' notice of appeal as to a substantial constitutional question pursuant to N.C.G.S. § 7A–30(1). Heard in the Supreme Court on 9 September 2010.

Tharrington Smith, L.L.P., by Kenneth A. Soo and Adam S. Mitchell, Raleigh, for plaintiff-appellants; and Elliot Pishko Morgan, P.A., by Robert M. Elliot, Winston Salem, and American Civil Liberties Union of North Carolina Legal Foundation, by Katherine Lewis Parker, Raleigh, for intervenor-appellants.

Roy Cooper, Attorney General, by Alexander McC. Peters, Special Deputy Attorney General, for defendant-appellees.Allison J. Riggs, Durham, for Southern Coalition for Social Justice, Democracy North Carolina, FairVote Action, League of Women Voters–North Carolina, Common Cause North Carolina, North Carolinians for Free and Proper Elections, and the John Locke Foundation, amici curiae.Jason B. Kay and Robert F. Orr, Raleigh, for North Carolina Institute for Constitutional Law, amicus curiae.

TIMMONS–GOODSON, Justice.

This is a case of first impression that requires us to decide whether the ballot access requirements of N.C.G.S. § 163–96(a)(2) violate Article I, Section 12, 14, or 19 of the Constitution of North Carolina. We hold that N.C.G.S. § 163–96(a)(2) is constitutional with respect to Article I, Sections 12, 14, and 19 and adopt the United States Supreme Court's analysis for determining the constitutionality of ballot access provisions. Accordingly, we modify and affirm the opinion of the Court of Appeals.

BACKGROUND

On 21 September 2005, the Libertarian Party of North Carolina (N.C. Libertarian Party) filed a complaint against North Carolina's State Board of Elections seeking a declaratory judgment to resolve whether North Carolina's ballot access statutes violate certain rights under the Constitution of North Carolina. The N.C. Libertarian Party also sought recognition as a political party and injunctive relief to keep its candidates on the ballots in various 2005 municipal elections. On 27 April 2006, the North Carolina Green Party (N.C. Green Party) was allowed to intervene. The trial court conducted a nonjury trial for which the parties stipulated to the following facts:

A. Historically, states, including North Carolina, have imposed requirements on political parties to gain and retain recognition for their parties and their affiliated candidates.

B. To gain recognition in North Carolina, a political party has been required to submit a petition with the signatures of a number of registered voters supporting the recognition of that party; once a party has obtained recognition as a political party, its candidates have been listed on ballots throughout North Carolina.

C. From 1935 through 1981, the North Carolina signature requirement was 10,000 registered voters. North Carolina Code of 1935 § 5913.

....

H. In 1983, the General Assembly increased the number of registered voter signatures required for recognition of a new political party [“recognition requirement”] ... to two percent of the number who voted in the last gubernatorial election. 1983 Sess. Laws C. 576, § 1. Parties who are seeking recognition as political parties in North Carolina may begin gathering these signatures as soon as the gubernatorial election is over.

I. For the 2008 election, a party [had to] submit 69,734 signatures from registered voters in order to gain recognition as a political party pursuant to N.C.G.S. § 163–96. These signatures [had to] be submitted to the State Board of Elections by the first day of June.

J. The population of North Carolina, the number of registered voters in North Carolina, the number of voters who vote in North Carolina's gubernatorial elections and, consequently, the number of signatures required to gain recognition as a political party have steadily increased from 1996 to the present [2008].... As of April 12, 2008, 5,733,762 persons were registered to vote in North Carolina. This being so, the number of signatures required for recognition as a political party—69,734—is 1.21% of the total registered voters in North Carolina as of April 12, 2008.

K. In order to retain recognition, a political party has historically been required to receive a threshold percentage of the votes cast statewide in the most recent gubernatorial or presidential election.

L. From 1935 to 1949, the ballot retention requirement was 3% of the statewide vote. North Carolina Code of 1935 § 5913.

....

N. In the [1949] legislative session, the General Assembly raised the ballot retention requirement to 10% of the statewide vote.

O. Only one party other than the Democratic or Republican Party, the American Party in 1968, has ever met the 10% requirement. The Democratic and Republican Parties are the only two political parties to maintain continuous recognition since the enactment of N.C.G.S. §§ 163–96 and –97.

P. Effective January 1, 2007, after the filing of this action on September 21, 2005, the General Assembly amended N.C.G.S. § 163–96 to lower the retention requirement to 2%.2006 Sess. Laws C. 234, §§ 1 and 2.

Q. Once a political party is officially recognized, under [N.C.G.S.] § 163–96 its candidate must receive at least 2% of the statewide vote for governor or president for the party to remain officially recognized and for its candidates to be listed on the ballot for any office anywhere in the state [“retention requirement”]. Thus, even if candidates of the party receive more than two percent of the vote in a particular city or county, they cannot be listed on the ballot and their party identified in ballots in that community if the party did not receive two percent of the vote statewide.

....

LL. Persons desiring to get on the ballot in North Carolina can also qualify as unaffiliated candidates pursuant to N.C.G.S. § 163–122 and as write-in candidates pursuant to N.C.G.S. § 163–123, though in neither circumstance will the candidate's political party appear with a party label. N.C.G.S. § 163–122 requires unaffiliated candidates for statewide office to submit signatures of registered voters equal to two percent of the voters who voted in the most recent gubernatorial election; for district or local offices, signatures equal to four percent of the registered voters in that district or locality must be submitted. N.C.G.S. § 163–123 requires write-in candidates for statewide office to submit 500 signatures of registered voters.

The parties also stipulated that the N.C. Libertarian Party has continuously existed since 1976 and has achieved recognition as a political party in most state elections since then by using the petition process set forth in N.C.G.S. § 163–96(a)(2). In contrast, the N.C. Green Party has never met the petition requirements, gained recognition as a political party under section 163–96, or received the benefits of party recognition.

On 27 May 2008, the trial court entered judgment for defendants. The North Carolina Court of Appeals issued a divided opinion on 20 October 2009 holding no error in the trial court's judgment. The N.C. Libertarian Party and the N.C. Green Party come to this Court with a notice of appeal based upon a dissent and a constitutional question.

Appellants ask this Court to determine whether Article I, Sections 1, 12, 10, 14, and 19, as well as Article VI, Sections 1 and 6, of the Constitution of North Carolina are violated by various statutes constituting North Carolina's ballot access framework. At the Court of Appeals, however, appellants abandoned arguments concerning all sections of the state constitution except Article I, Sections 12, 14, and 19. Libertarian Party of N.C. v. State, 200 N.C.App. 323, ––––, 688 S.E.2d 700, 706 (2009) (concluding that appellants abandoned arguments implicating Article I, Sections 1 and 10, and Article VI, Sections 1 and 6). There, appellants also abandoned arguments pertaining to N.C.G.S. §§ 163–96(a)(1) and 163–97.1.1 Id. at ––––, 688 S.E.2d at 706. Because appellants do not take issue with the determination of the Court of Appeals that these constitutional and statutory claims were abandoned, those claims are not before this Court. The only issue for our consideration, then, is whether the signature requirement for party recognition under N.C.G.S. § 163–96(a)(2) violates Article I, Section 12, 14, or 19 of the Constitution of North Carolina. We review this matter de novo. Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) ([D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.” (citations omitted)).

ANALYSIS
I.

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