McLaughlin v. North Carolina Bd. of Elections

• Decision Date: 19 April 1994
• Docket Number: No. 2:93CV00100.,2:93CV00100.
• Citation: 850 F. Supp. 373
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Scott McLAUGHLIN, as a Candidate for Governor of North Carolina and as a representative of the Libertarian Party of North Carolina, Plaintiff, Libertarian Party of North Carolina, Plaintiff, Libertarian Party, The Plaintiff, Kathleen Ferrell, as a North Carolina Voter who desires to remain registered as a Libertarian, Plaintiff, v. NORTH CAROLINA BOARD OF ELECTIONS, Defendant, William A. Marsh, Jr., in his official capacity as acting Director of the State Board of Elections Defendant.

850 F. Supp. 373

Scott McLAUGHLIN, as a Candidate for Governor of North Carolina and as a representative of the Libertarian Party of North Carolina, Plaintiff Libertarian Party of North Carolina, Plaintiff Libertarian Party, The Plaintiff Kathleen Ferrell, as a North Carolina Voter who desires to remain registered as a Libertarian, Plaintiff, v. NORTH CAROLINA BOARD OF ELECTIONS, Defendant William A. Marsh, Jr., in his official capacity as acting Director of the State Board of Elections Defendant.

No. 2:93CV00100.

United States District Court, M.D. North Carolina, Greensboro Division.

April 19, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ernest Clarke Dummit, American Law Offices, P.A., Winston-Salem, NC, for plaintiffs.

Charles M. Hensey, N.C. Dept. of Justice, Raleigh, NC, for defendants.

ORDER

ERWIN, Senior District Judge.

On February 25, 1994, the Recommendation of the United States Magistrate Judge was filed and notice was served on the parties pursuant to 28 U.S.C. § 636. Thereafter, the Court received plaintiffs' objections to the Recommendation of the United States Magistrate Judge.

The Court has appropriately reviewed plaintiffs' objections de novo and finds they do not change the substance of the United States Magistrate Judge's rulings which are affirmed and adopted.

NOW, THEREFORE, pursuant to the Recommendation of the United States Magistrate Judge, it is ORDERED that plaintiffs' and defendants' motions for summary judgment are granted in part and denied in part and that all plaintiffs' claims are dismissed except that as to Count II of the Complaint and plaintiffs' Prayer for Relief, it is declared that those parts of North Carolina General Statute § 163-96(b) which provide:

The validity of the signatures on the petitions shall be proved in accordance with one of the following alternative procedures:

(1) The signers may acknowledge their signatures before an officer authorized to take acknowledgments, after which that officer shall certify the validity of the signatures by appropriate notation attached to the petition, or

(2) A person in whose presence a petition was signed may go before an officer authorized to take acknowledgments and, after being sworn, testify to the genuineness of the signatures on the petition, after which the officer before whom he has testified shall certify his testimony by appropriate notation attached to the petition,

and the further requirement that the county board of elections "shall require a fee of five cents (5¢) for each signature appearing" on the petitions are unconstitutional as Chapter 163 of the North Carolina General Statutes is presently constituted and, therefore, pursuant to Fed.R.Civ.P. 65 that the defendants, their officers, and agents are enjoined from utilizing, requesting compliance with or enforcing the same.

Feb. 25, 1994.

FINDINGS OF UNITED STATES MAGISTRATE JUDGE

ELIASON, United States Magistrate Judge.

This matter comes before the Court on the parties' cross-motions for summary judgment. The Court heard oral argument on February 3, 1994. Previously, the parties submitted stipulated facts (pleading 9) along with exhibits. At the oral argument, both sides agreed that the Court could consider all forty-four exhibits in support of the stipulated facts, including unsigned affidavits which were to be treated as if they were signed by the affiants. In addition, both parties stated that should the matter be submitted for trial, they would have no further evidence to submit in support of their claims or defenses. Considering the nature of these stipulations, the Court finds the matter is appropriate for decision on the present record.

Plaintiffs are the Libertarian Party of North Carolina, the Libertarian Party (the national party), a former Libertarian candidate for governor and representative of the Libertarian Party, and a registered Libertarian voter. The defendants are the North Carolina Board of Elections and its director.

The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 2201. Plaintiffs seek injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983 and the above statutes, against N.C.Gen.Stat. §§ 163-96(b), 163-97 and 163-97.1, claiming that both on their face and as applied, the statutes violate the First and Fourteenth Amendments of the United States Constitution. The plaintiff Libertarian voter claims that her First and Fourteenth Amendment rights are violated because the state arbitrarily denies her the right to register as a Libertarian. Finally, plaintiffs claim that as a result of the totality of the operation of the challenged statutes and certain election improprieties occurring during the 1992 general election, plaintiffs are entitled to injunctive relief.

I. Summary of Stipulated Facts and Evidence Parties

1. The Libertarian Party is a national political party which has a nationally published political platform, regularly holds state and national conventions, has supported the successful candidacies of elected officials and has been certified as a "political party" in North Carolina.

2. Plaintiff Scott McLaughlin resides in Guilford County, North Carolina; was the Libertarian Party's candidate for governor in the general election held on November 3, 1992; is a member at large of the Executive Committee of the Libertarian Party of North Carolina and brings this action in both capacities and on behalf of the Libertarian Party.

3. Plaintiff Kathleen Ferrell is a citizen, resident and registered voter of Guilford County, North Carolina. She registered to be a member of the Libertarian Party after the 1992 general election and desires to remain registered as a Libertarian with the Guilford County Board of Elections.

4. The North Carolina State Board of Elections (hereinafter "Board") is an agency of the State of North Carolina empowered to act for the State of North Carolina by N.C.Gen.Stat. §§ 163-19-22. Defendant Board is responsible for the overall supervision of elections, maintenance of records of elections and supervision of the county boards of elections in regard to maintenance of records of registered voters in North Carolina.

1976 and 1980 Elections

5. The Libertarian Party of North Carolina was formed in 1976 and has participated in most general elections since its formation. At that time, N.C.Gen.Stat. § 163-96 required a new political party to obtain 10,000 signatures on a petition in order to be recognized and gain access to the ballot.

6. The Libertarian Party participated in the 1976 election for president, along with two other minor parties, the American Party and the Labor Party, and with the two dominant or major parties, the Democratic and Republican Parties. The total vote for president in North Carolina was 1,677,906. The Libertarian candidate received 2,219 votes, the Labor Party 755 votes, and the American Party 5,607 votes.

7. The Libertarian Party participated in the 1980 presidential election. The total presidential vote was 1,855,896. The minor parties were the Libertarian Party, the Citizens Party, and the Socialist Workers Party which received 9,677 votes, 2,287 votes and 416 votes, respectively. In addition, independent candidate John B. Anderson received 52,800 votes.

1984 and 1986 Elections

8. Prior to the 1984 election, N.C.Gen. Stat. § 163-96(a)(2) was amended to increase the number of signatures required on a petition to two percent (2%) of the number of persons who voted in the most recent general election for governor in order for a new political party to be recognized and gain access to the ballot. If the party does not obtain ten percent (10%) of the vote for governor or president, it loses recognition. N.C.Gen.Stat. §§ 163-96 and -97.

9. The Republican and Democratic Parties are the only two parties who have remained Certified Political Parties under N.C.Gen.Stat. §§ 163-96 and -97 since their enactment.

10. In the 1984 election the Libertarian and Socialist Workers Parties fulfilled the two percent (2%) petition requirement and appeared on the ballot. The vote for the presidential electors was 2,175,361 and the total votes cast for governor was 2,226,727. The Libertarian candidate for president obtained 3,794 votes and their candidate for governor received 4,611 votes. This amount fell far short of the ten percent (10%) of either the gubernatorial or presidential elector votes needed to remain qualified as a political party under North Carolina law and N.C.Gen.Stat. § 163-97.1 was implemented.

11. In the 1988 general election, the Libertarian Party did not qualify as a political party under the two percent (2%) petition requirement of N.C.Gen.Stat. § 163-96(a)(2). The New Alliance Party did. The Libertarian Party, however, did qualify to have write-in votes cast on its behalf counted pursuant to N.C.Gen.Stat. § 163-123. The total presidential vote was 2,134,370. The total vote for governor was 2,180,025. In the presidential vote, the New Alliance Party obtained 5,682 votes and the Libertarian Party write-in candidate received 1,263 votes.

1992 Libertarian Party Ballot Access

12. North Carolina General Statute § 163-96(b) requires that any petitions filed with the State Board of Elections first be presented to and examined by the chairman of the county board of elections of the county in which the signatures were obtained. The chairman of the county board of elections (or the chairman's designee) must examine each signature on the petition; determine that the signatory is qualified and registered to vote; place a check mark by the name of each person found to be qualified; collect a sum of money equal to a charge of five cents per name for each name appearing on the petitions presented; attach a certificate to the petition stating the signatures have been checked; indicate the number of qualified signatories in the certificate and return the certified petitions to the person who presented them.

13. The petitions may...