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IN THE SUPREME COURT OF NORTH CAROLINA
FILED: 11 MARCH 2011
LIBERTARIAN 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,
THE 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
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
Appeal pursuant to N.C.G.S. ' 7A-30(2) from the decision
of a divided panel of the Court of Appeals, ___ N.C. App. ___, 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, for plaintiff-appellants; and Elliot Pishko
Morgan, P.A., by Robert M. Elliot, and American Civil
Liberties Union of North Carolina Legal Foundation, by
Katherine Lewis Parker, for intervenor-appellants.
Roy Cooper, Attorney General, by Alexander McC. Peters
Special Deputy Attorney General, for defendant-appellees.
Allison J. Riggs for Southern Coalition for Social
Justice, Democracy North Carolina, FairVote Action,
League of Women VotersBNorth 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 for North Carolina
Institute for Constitutional Law, amicus curiae.
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.
On 21 September 2005, the Libertarian Party of North
Carolina (AN.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.
Libertarian Party also sought recognition as a political party and
injunctive relief to keep its candidates on the ballots in various
-32005 municipal elections.
On 27 April 2006, the North Carolina Green
Party (AN.C. Green Party@) was allowed to intervene.
The trial court
conducted a nonjury trial for which the parties stipulated to the
Historically, states, including North
Carolina, have imposed requirements on
political parties to gain and retain
recognition for their parties and their
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.
From 1935 through 1981, the North Carolina
signature requirement was 10,000
registered voters. North Carolina Code
of 1935 ' 5913.
. . . .
In 1983, the General Assembly increased
the number of registered voter signatures
required for recognition of a new
political party [Arecognition
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.
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
-4submitted to the State Board of Elections
by the first day of June.
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 . . . . 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
partyC69,734Cis 1.21% of the total
registered voters in North Carolina as of
April 12, 2008.
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
From 1935 to 1949, the ballot retention
requirement was 3% of the statewide vote.
North Carolina Code of 1935 ' 5913.
. . . .
In the  legislative session, the
General Assembly raised the ballot
retention requirement to 10% of the
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.
Effective January 1, 2007, after the filing of
this action on September 21, 2005, the General
-5Assembly amended N.C.G.S. ' 163-96 to lower the
retention requirement to 2%. 2006 Sess. Laws
C. 234, '' 1 and 2.
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 [Aretention
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.
. . . .
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
-6by 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
The North Carolina Court of Appeals issued a divided
opinion on 20 October 2009 holding no error in the trial court=s
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
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.
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, ___
N.C. App. ___, ___, 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
Id. at ___, 688 S.E.2d at 706.
Because appellants do not
In their brief to this Court, appellants allege the
unconstitutionality of additional election law provisions.
However, appellants abandoned those claims by failing to provide in
their brief a Areason or argument@ to explain the purported
-7take 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) (A[D]e novo review is ordinarily
appropriate in cases where constitutional rights are implicated.@
For the first time, this Court is asked to review the
constitutionality of N.C.G.S. ' 163-96(a)(2) under our state
Defining Apolitical party,@ the statute provides as
(a) Definition.CA political party within
the meaning of the election laws of this State
shall be either:
(1) Any group of voters which, at the last
preceding general State election,
polled for its candidate for
Governor, or for presidential
electors, at least two percent (2%)
of the entire vote cast in the State
unconstitutionality. N.C. R. App. P. 28(b)(6) (2008). The additional
provisions include, inter alia, unfavorable placement on the ballot of
candidates from parties other than the two major political parties,
N.C.G.S. ' 163-165.6 and the prohibition against a political party
allowing registered voters of other parties to vote in its primary,
id. '' 163-59, -119.
for Governor or for presidential
Any group of voters which shall have
filed with the State Board of
Elections petitions for the
formulation of a new political party
which are signed by registered and
qualified voters in this State equal
in number to two percent (2%) of the
total number of voters who voted in
the most recent general election for
Governor. Also the petition must be
signed by at least 200 registered
voters from each of four
congressional districts in North
Carolina. To be effective, the
petitioners must file their
petitions with the State Board of
Elections before 12:00 noon on the
first day of June preceding the day
on which is to be held the first
general State election in which the
new political party desires to
participate. The State Board of
Elections shall forthwith determine
the sufficiency of petitions filed
with it and shall immediately
communicate its determination to the
State chairman of the proposed new
N.C.G.S. ' 163-96(a) (2009).2
Appellants contend the right to ballot
access is a fundamental right warranting strict scrutiny.
Ultimately, appellants believe N.C.G.S. ' 163-96(a)(2) fails strict
scrutiny because the State has not shown the statute to be narrowly
tailored to advance a compelling state interest.
We are not
Subsection (a) of the statute is almost exactly the same today
as it was when this litigation was initiated in 2005. The only
exception is the reduction of the retention requirement of subsection
(a)(1) from ten percent to two percent effective 1 January 2007. Act
of July 26, 2006, ch. 234, sec.1, 2006 N.C. Sess. Laws 1018, 1018.
-9When interpreting the Constitution of North Carolina, we
are not bound by federal court rulings, so long as our decision
comports with the United States Constitution.
State ex rel. Martin
v. Preston, 325 N.C. 438, 449B50, 385 S.E.2d 473, 479 (1989)
When it comes to determining the
constitutionality of ballot access provisions, we find the Supreme
Court=s analysis in Timmons v. Twin Cities Area New Party and its
Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 451B52, 170 L. Ed. 2d 151, 161B62 (2008); Clingman
v. Beaver, 544 U.S. 581, 586B87, 161 L. Ed. 2d 920, 930 (2005)
(plurality); Cal. Democratic Party v. Jones, 530 U.S. 567, 581B82,
147 L. Ed. 2d 502, 514 (2000); Timmons v. Twin Cities Area New Party,
520 U.S. 351, 357B59, 137 L. Ed. 2d 589, 597B98 (1997).
In Twin Cities, the Supreme Court considered whether
Minnesota=s antifusion laws3 violated a minor party=s First and
Fourteenth Amendment associational rights.
2d at 595B96.
Id. at 354B55, 137 L. Ed.
The Court reasoned that if these rights were severely
burdened, the challenged statutes must be strictly scrutinized to
determine whether they were Anarrowly tailored and advance a
compelling state interest.@
Id. at 358, 137 L. Ed. 2d at 598.
the rights were not severely burdened, the interests of the State
Aneed only be sufficiently weighty to justify the limitation imposed
Antifusion laws prohibit Athe nomination by more than one
political party of the same candidate for the same office in the same
general election.@ Twin Cities, 520 U.S. at 354 n.1, 137 L. Ed. 2d
at 595 n.1 (citation omitted).
-10on the party=s rights.@
Id. at 364, 137 L. Ed. 2d at 601 (internal
quotation marks omitted) (citing Burdick v. Takushi, 504 U.S. 428,
434, 119 L. Ed. 2d 245, 254 (1992), and Norman v. Reed, 502 U.S. 279,
288B89, 116 L. Ed. 2d 711, 723 (1992)).
To make this sufficiency
determination, the court weighs Athe character and magnitude of the
burden the State=s rule imposes on [associational] rights against the
interests the State contends justify that burden, and consider[s]
the extent to which the State=s concerns make the burden necessary.@
Id. at 358, 137 L. Ed. 2d at 598 (citations and internal quotation
Accordingly, A[l]esser burdens . . . trigger less
exacting review, and a State=s important regulatory interests will
usually be enough to justify reasonable, nondiscriminatory
Id. (internal quotation marks omitted) (citing
Burdick, 504 U.S. at 434, 119 L. Ed. 2d at 254, and Norman, 502 U.S.
at 288B89, 116 L. Ed. 2d at 723).
For almost two decades, the Supreme Court has applied the
analysis used in Twin Cities for associational rights cases sounding
under the First Amendment and the Due Process Clause of the Fourteenth
Wash. State Grange, 552 U.S. at 445, 451B52, 170 L. Ed.
2d at 157, 161B62; Beaver, 544 U.S. at 585B87, 161 L. Ed. 2d at 929B30;
Cal. Democratic Party, 530 U.S. at 569, 581B82, 147 L. Ed. 2d at 506,
514; Twin Cities, 520 U.S. at 354, 358, 137 L. Ed. 2d at 595, 598;
Norman, 502 U.S. at 288B89, 116 L. Ed. 2d at 722B23.
But there has
been some debate about its applicability in equal protection
challenges to ballot access provisions.
Rogers v. Corbett, 468 F.3d
-11188, 193B94 (3d Cir. 2006), cert. denied, 552 U.S. 826, 169 L. Ed.
2d 38 (2007).
We join a growing number of federal courts applying the
Supreme Court=s associational rights analysis to equal protection
challenges in the context of ballot access restrictions on political
parties and candidates.
See Barr v. Galvin, 626 F.3d 99, 109B10 (1st
Cir. 2010); Rogers, 468 F.3d at 194; Belitskus v. Pizzingrilli, 343
F.3d 632, 643 n.8 (3d Cir. 2003); Fulani v. Krivanek, 973 F.2d 1539,
1542B44 (11th Cir. 1992).
We do so because the interests of equal
protection bear a strong relationship to the associational rights
protected by our state constitution=s free speech and assembly
N.C. Const. art. I, '' 12, 14; cf. Anderson v.
Celebrezze, 460 U.S. 780, 793, 75 L. Ed. 2d 547, 561 (1983) (AA burden
that falls unequally on new or small political parties or on
independent candidates impinges, by its very nature, on
associational choices protected by the First Amendment.@); Rogers,
468 F.3d at 193B94 (noting a relationship between equal protection
claims and associational rights protected by the First Amendment).
Indeed, in ballot access cases Aequal protection challenges
essentially constitute a branch of the associational rights tree.@
Republican Party of Ark. v. Faulkner Cnty., 49 F.3d 1289, 1293 n.2
(8th Cir. 1995).
We are thus persuaded that the analysis used by
the Supreme Court in Twin Cities is the proper approach for
determining whether N.C.G.S. ' 163-96(a)(2) violates our state
-12constitution=s due process, free speech and assembly, and equal
The reasoning behind the Supreme Court=s severe burdening
requirement in Twin Cities and preceding cases applies equally in
On one hand, A[t]he First Amendment protects the
right of citizens to associate and to form political parties for the
advancement of common political goals and ideas.@
Twin Cities, 520
U.S. at 357, 137 L. Ed. 2d at 597 (citations omitted).
AOn the other
hand, it is also clear that States may, and inevitably must, enact
reasonable regulations of parties, elections, and ballots to reduce
election- and campaign-related disorder.@
Id. at 358, 137 L. Ed. 2d
at 598 (citations omitted).
In North Carolina, statutes governing ballot access by
political parties implicate individual associational rights rooted
in the free speech and assembly clauses of the state constitution.
N.C. Const. art. I, ' 12 (AThe people have a right to assemble together
to consult for their common good . . . .@); id. ' 14 (AFreedom of speech
. . . shall never be restrained . . . .@).
Because citizens form
parties to express their political beliefs and to assist others in
casting votes in alignment with those beliefs, such statutes
inherently affect individual associational rights.
460 U.S. at 786B88, 75 L. Ed. 2d at 56B57; McLaughlin v. N.C. Bd. of
Elections, 65 F.3d 1215, 1221 (4th Cir. 1995) (concluding that
restrictions on ballot access for political parties Aalways implicate
-13substantial voting, associational and expressive rights protected
by the First and Fourteenth Amendments.@), cert. denied, 517 U.S.
1104, 134 L. Ed. 2d 472 (1996).
A >[T]he right to form a [recognized]
party for the advancement of political goals means little if a party
can be kept off the election ballot and thus denied an equal
opportunity to win votes.= @
McLaughlin, 65 F.3d at 1221 (first
alteration in original) (citations omitted).
Indeed, ballot access
rights, though distinct from voting rights, are central to the
administration of our democracy.
John V. Orth, The North Carolina
State Constitution 48 (1995) (APopular sovereignty means elections,
and for elections to express the popular will, the right to assemble
and consult for the common good must be guaranteed.@).
While these rights are of utmost importance to our
democratic system, they are not absolute.
119 L. Ed. 2d at 252B53.
Burdick, 504 U.S. at 433,
In the interest of fairness and honesty,
the State Amay, and inevitably must, enact reasonable regulations of
parties, elections, and ballots to reduce election- and
Twin Cities, 520 U.S. at 358, 137 L. Ed.
2d at 598 (citations omitted); see also Burdick, 504 U.S. at 433,
119 L. Ed. 2d at 253 (A[A]s a practical matter, there must be a
substantial regulation of elections if they are to be fair and honest
and if some sort of order, rather than chaos, is to accompany the
democratic processes.@ (citation and quotation marks omitted)).
these reasons, not all infringements of the right to ballot access
warrant strict scrutiny.
Buckley v. Am. Const. Law Found., Inc.,
-14525 U.S. 182, 206, 142 L. Ed. 2d 599, 618 (1999) (Thomas, J.,
In fact, requiring Aevery voting, ballot, and campaign
regulation@ to meet strict scrutiny A >would tie the hands of States
seeking to assure that elections are operated equitably and
2d at 253).
Id. (quoting Burdick, 504 U.S. at 433, 119 L. Ed.
Hence, strict scrutiny is warranted only when this
associational right is severely burdened.
See Twin Cities, 520 U.S.
at 358, 137 L. Ed. 2d at 598.
In the present case, the two percent party recognition
requirement of N.C.G.S. ' 163-96(a)(2) may burden minor political
parties somewhat, but it does not impose a severe burden.
minority parties seeking recognition pursuant to N.C.G.S.
' 163-96(a)(2) have over three and one-half years to acquire the
requisite number of signatures.4
few restrictions on signatories.
Second, section 163-96(a) places
While these persons must be
Aregistered and qualified voters in this State,@ they need not
register with or promise to vote for candidates of the party seeking
N.C.G.S. ' 163-96(a)(2).
Signatories are even
allowed to vote in a primary of a major party.
handful of supporters can acquire the requisite number of signatures.
During the 2004B2008 election cycle, for example, over eighty-five
The relevant period runs from as soon as the previous
gubernatorial election is over until the first day of June preceding
the next general state election in which the party wants to
participate. N.C.G.S. ' 163-96(a)(2).
-15thousand signatures were collected for the Libertarian Party by only
Moreover, section 163-96(a)(2) does not impose a severe
burden in that the two percent signature requirement is readily
For instance, in 2008 the two percent threshold
required signatures from only 69,734 of North Carolina=s
approximately 5,734,000 registered voters.
Further, a minor party
has met the two percent recognition requirement eight times in the
past five gubernatorial elections.5
In 2008 the N.C. Libertarian
Party=s gubernatorial candidate acquired close to three percent of
the vote, Elaine F. Marshall, N.C. Dep=t of Sec=y of State, North
Carolina Manual 2007B2008, at 1028 (indicating the Libertarian
candidate for governor received 121,584 of 4,268,941 votes), thereby
assuring the Party=s status as a recognized political party through
N.C.G.S. ' 163-96(a)(1).
This success indicates the Party
may have turned a corner in popular support, effectively graduating
it from the recognition requirements of section 163-96(a)(2).
1992CLibertarian; 1996CLibertarian, Natural Law, Reform;
2000CLibertarian, Reform; 2004CLibertarian; 2008CLibertarian.
-16Finally, our state=s voter recognition requirements are
less burdensome than the Georgia ballot access provisions upheld by
the United States Supreme Court in Jenness v. Fortson, 403 U.S. 431,
442, 29 L. Ed. 2d 554, 563 (1971).
The ballot access statutes at
issue in Jenness gave a political party only one hundred and eighty
days to acquire signatures totaling at least Afive per cent. of the
total number of electors eligible to vote in the last election.@
at 433, 29 L. Ed. 2d at 557B58 (citations omitted).
N.C.G.S. ' 163-96(a)(2) contains only a two percent requirement and
gives parties in North Carolina an additional three years to collect
When a state ballot access provision does not severely
burden associational rights, the interests of the State Aneed only
be sufficiently weighty to justify the limitation imposed on the
Twin Cities, 520 U.S. at 364, 137 L. Ed. 2d at 601
(citations and internal quotation marks omitted).
State=s important regulatory interests [are] enough to justify
reasonable, nondiscriminatory restrictions.@
Id. at 358, 137 S.E.2d
at 598 (citations and internal quotation marks omitted); see also
Wash. State Grange, 552 U.S. at 452, 170 L. Ed. 2d at 162 (observing
that the Supreme Court has A >repeatedly upheld reasonable,
politically neutral regulations that have the effect of channeling
expressive activity at the polls= @ (quoting Burdick, 504 U.S. at 438,
-17119 L. Ed. 2d at 256)); Beaver, 544 U.S. at 593B94, 161 L. Ed. 2d at
934B35 (majority) (citations omitted).
Here, the avoidance of Avoter confusion, ballot
overcrowding,@ and Afrivolous candidacies@ is an important regulatory
See Munro v. Socialist Workers Party, 479 U.S. 189,
194B95, 93 L. Ed. 2d 499, 505 (1986).
At the same time, the two
percent signature recognition requirement imposes a reasonable
hurdle to ballot access.
Unlike in some jurisdictions, signatories
are not disqualified in North Carolina for having voted in another
party=s primary or for refusing to register as a member of the party
Compare, e.g., Ohio Rev. Code Ann. ' 3513.05
(LexisNexis 2005 & Supp. 2010) (requiring petition signatures for
a candidate to come from members of the same political party as the
candidate), and Storer v. Brown, 415 U.S. 724, 726B27, 39 L. Ed. 2d
714, 721 (1974) (involving a statute disqualifying voters in the
immediately preceding primary election from signing petitions in
support of independent candidates), with N.C.G.S. ' 163-96(a)(2).
The North Carolina recognition requirements at issue are also more
permissive than the Georgia ballot access requirements that were
upheld by the Supreme Court and which required a new party to reach
a five percent signature threshold within one hundred and eighty
Jenness, 403 U.S. at 433, 29 L. Ed. 2d at 558.
see no indication that the recognition requirements here
discriminate against minor parties or Aoperate to freeze the
political status quo@ of a two-party system.
Id. at 438, 29 L. Ed.
-182d at 560.
As a result, we conclude that the State=s important
regulatory interests are Asufficiently weighty@ to justify the
reasonable burden placed by N.C.G.S. ' 163-96(a)(2) on appellants=
In sum, we hold that the Court of Appeals erred in applying
strict scrutiny but correctly concluded that N.C.G.S. ' 163-96(a)(2)
does not violate Article I, Section 12, 14, or 19 of the Constitution
of North Carolina.
Accordingly, we modify and affirm the decision
of the Court of Appeals upholding the trial court=s judgment in favor
of the State.
MODIFIED AND AFFIRMED.
Justice JACKSON did not participate in the consideration
or decision of this case.
Justice NEWBY dissenting.
AA frequent recurrence to fundamental principles is absolutely
necessary to preserve the blessings of liberty.@
1, ' 35.
N.C. Const. art.
This case invites us to return to these fundamental
democratic principles, specifically, the right of open access to the
Ballot access implicates our citizenry=s freedom
of association, freedom of speech, and freedom to vote.
State has an interest in the orderly administration of elections,
-19my fear is that North Carolina=s signature requirement, N.C.G.S. '
163-96(a)(2) (2007), may unduly limit election ballot access.
majority finds the signature requirement statute to be a non-Asevere@
infringement of this fundamental right and deferentially reviews the
Because I believe an encroachment of this fundamental
right deserves strict scrutiny, I respectfully dissent.
remand this case to allow the trial court to conduct a thorough strict
scrutiny review of ' 163-96(a)(2).
While I agree with the majority that ballot access is a
fundamental right, I disagree with the treatment of the right.
Traditionally, the infringement of a fundamental right demands that
a court apply strict scrutiny.
The majority, however, now says that
a statute limiting the fundamental right of ballot access is an
exception to this rule:
rather than apply strict scrutiny, a court
will first evaluate the extent of the infringement, and if the
infringement is not Asevere,@ then the court will apply a deferential
I believe this to be an unwarranted and imprudent departure
from North Carolina=s constitutional jurisprudence.
I agree that fundamental rights are not absolute and a burden
on a fundamental right may be permissible.
However, under our
existing jurisprudence, once we determine that a fundamental right
is burdened, the strict scrutiny standard is the sole inquiry used
to determine whether that burden is permissible--there is no initial
See, e.g., Rhyne v. K-Mart Corp., 358 N.C. 160,
180, 594 S.E.2d 1, 15 (2004) (AIf the statute at issue affects the
-20exercise of a fundamental right . . . we apply strict scrutiny.@
A burden on a fundamental right is permissible
only when the State succeeds in demonstrating that the burden is
narrowly tailored to further a compelling interest.
State v. Petersilie, 334 N.C. 169, 186-87, 432 S.E.2d 832, 842-43
(1993) (permitting a restraint on speech because it survived strict
scrutiny); cf. Blankenship v. Bartlett, 363 N.C. 518, 524-27, 681
S.E.2d 759, 764-66 (2009) (applying intermediate scrutiny to
In place of traditional strict scrutiny, the majority
introduces the Asevere burden@ inquiry of Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358-59, 117 S. Ct. 1364, 1369-70, 137 L.
Ed. 2d 589, 597-98 (1996).
Twin Cities is not persuasive authority
for the majority=s abandonment of the strict scrutiny test for a direct
burden on ballot access rights.
In Twin Cities, A[t]he laws [did]
not directly limit the party=s access to the ballot@ but concerned
whether a candidate=s name could appear multiple times on a ballot.
Id. at 363, 117 S. Ct. at 1372, 137 L. Ed. 2d at 601.
Moreover, Twin Cities highlights a critical flaw in the Asevere
the inquiry is entirely too subjective.
Cities, the trial judge and six Justices of the Supreme Court of the
United States found the burdens to be minor, id. at 355, 359, 117
S. Ct. at 1368, 1370, 137 L. Ed. 2d at 596, 598-99; but three appellate
judges determined that the laws in Twin Cities were actually Asevere@
burdens, id. at 363-64, 117 S. Ct. at 1372, 137 L. Ed. 2d at 601,
-21as did three dissenting Justices, see id. at 370-71, 117 S. Ct. at
1376, 137 L. Ed. 2d at 606 (Stevens, Ginsburg & Souter, JJ.,
dissenting) (disputing the majority=s conclusion that the laws were
Aminor burdens@ and calling the burdens Asignificant@).
judiciary was divided 7-to-6 regarding the severity of the burden.
The majority=s approach allows a trial court to subjectively assess
the degree of burden, rather than relying upon the nature of the
protected right, to determine the standard of review.
citizen, after having already established that a statute burdens a
fundamental right, must now convince a court that the burden is
Asevere@ enough, or else the court will defer to the legislature.
instance, here, the majority decided that the signature requirement
statute did not impose a sufficiently Asevere@ burden on a fundamental
right, despite the statute=s impact of excluding the Green Party from
the ballot and forcing the Libertarian Party to spend almost $130,000
to access the ballot.
In contrast to the majority, I believe strict scrutiny is the
appropriate test for a burden on the fundamental right of access to
Any review that is less demanding than strict scrutiny
will be an inadequate safeguard of this foundational democratic
Access to the ballot is an extension of the freedom of
The freedom to associate with others to advocate for
personal beliefs is a cornerstone of our democratic society, but
A[t]he right to form a party for the advancement of political goals
-22means little if a party can be kept off the election ballot and thus
denied an equal opportunity to win votes.@
Williams v. Rhodes, 393
U.S. 23, 31, 89 S. Ct. 5, 10-11, 21 L. Ed. 2d 24, 31 (1968); see also
Alexis de Tocqueville, Democracy in America 71-72 (Andrew Hacker ed.,
Henry Reeve trans., Washington Square Press 1972) (1863) (observing
that the freedom of political associations permits Athe partisans of
an opinion [to] unite in electoral bodies, and choose delegates to
represent them in a central assembly.
This is, properly speaking,
the application of the representative system to a party.@).
Access to the ballot is also an extension of the freedom of
speech. AIn our political life, third parties are often important
channels through which political dissent is aired.@
U.S. at 39, 89 S. Ct. at 14, 21 L. Ed. 2d at 36 (Douglas, J.,
concurring); Munro v. Socialist Workers Party, 479 U.S. 189, 200,
107 S. Ct. 533, 540, 93 L. Ed. 2d 499, 509 (1986) (Marshall & Brennan,
JJ., dissenting) (A[A minor party=s] very existence provides an outlet
for voters to express dissatisfaction with the candidates or
platforms of the major parties.@).
AThe minor party=s often
unconventional positions broaden political debate, expand the range
of issues with which the electorate is concerned, and influence the
positions of the majority, in some instances ultimately becoming
Munro, 479 U.S. at 200, 107 S. Ct. at 540, 93
L. Ed. 2d at 509.
Further, ballot access implicates the right to vote.
inclusion of additional political parties facilitates voting by
-23increasing the options on the ballot, Williams, 393 U.S. at 31, 89
S. Ct. at 11, 21 L. Ed. 2d at 31 (A[T]he right to vote is heavily burdened
if that vote may be cast only for one of two parties at a time when
other parties are clamoring for a place on the ballot.@), while
simultaneously increasing the information conveyed to voters, see
Tashjian v. Republican Party of Conn., 479 U.S. 208, 220, 107 S. Ct.
544, 552, 93 L. Ed. 2d 514, 527 (1986) (ATo the extent that party labels
provide a shorthand designation of the views of party candidates on
matters of public concern, the identification of candidates with
particular parties plays a role in the process by which voters inform
themselves for the exercise of the franchise.@ (citation omitted)).
At our nation=s inception, the founders warned that unduly restricting
ballot access could make illusory the right to vote:
AIt is essential
to such a government that it be derived from the great body of the
society, not from an inconsiderable proportion or a favored class of
it; otherwise a handful of tyrannical nobles, exercising their
oppressions by a delegation of their powers, might aspire to the rank
of republicans and claim for their government the honorable title of
The Federalist No. 39, at 233 (James Madison) (Henry Cabot
Lodge ed., 1888).
This Court has consistently interpreted the North Carolina
Constitution to provide the utmost protection for the foundational
democratic freedoms of association, speech, and voting.
State v. Frinks, 284 N.C. 472, 477-83, 201 S.E.2d 858, 862-65 (1974)
(upholding restriction on right to assemble because necessary to
-24assure safety and convenience); State v. Petersilie, 334 N.C. 169,
182-84, 432 S.E.2d 832, 839-41 (1993) (infringement of political
speech receives strict scrutiny); Northampton Cnty. Drainage Dist.
No. One v. Bailey, 326 N.C. 742, 745-47, 392 S.E.2d 352, 355-56 (1990)
(infringement of right to equal vote receives strict scrutiny).
is inconsistent for the majority to now afford the fundamental right
of ballot access, which is clothed in this triumvirate of fundamental
rights, less protection than one of these rights receives
Because I believe strict scrutiny is appropriate, I also question
whether the trial court properly applied the standard to '
The trial court ruled that the statute survived strict
scrutiny, and the Court of Appeals affirmed its decision.
Libertarian Party of N.C. v. State, ___ N.C. App. ___, ___, 688 S.E.2d
700, 707-09 (2009).
Based on the trial court=s findings, however, it
appears the trial court improperly maintained a presumption of
constitutionality during its strict scrutiny analysis.
In my view, the presumption of constitutionality places an
initial burden on the challenger of a statute, who must clearly
demonstrate a conflict with a constitutional right before we proceed
any further in our review.
See State ex rel. Att=y-Gen. v. Knight,
169 N.C. 333, 352, 85 S.E. 418, 427 (1915) (AWhen the constitutionality
of an act of the General Assembly is questioned, the courts place the
act by the side of the Constitution, with the purpose and the desire
to uphold it if it can be reasonably done, but under the obligation,
-25if there is an irreconcilable conflict, to sustain the will of the
people as expressed in the Constitution, and not the will of the
legislators, who are but agents of the people.@).
If a challenger clearly shows that a statute infringes on a
fundamental right--as happened in the case at hand--strict scrutiny
is applied, meaning the State bears the burden of demonstrating that
the statute is narrowly tailored to further a compelling interest.
Stephenson v. Bartlett, 355 N.C. 354, 377, 562 S.E.2d 377, 393 (2002).
If the challenger succeeds in demonstrating that the statute is in
conflict with only a quasi-fundamental right, the State then bears
the burden of showing the statute is substantially related to an
important government interest.
See Dep=t of Transp. v. Rowe, 353 N.C.
671, 675, 549 S.E.2d 203, 207 (2001).
However, if the challenger
shows a conflict with a non-fundamental right, then the challenger
bears the burden of demonstrating that the statute is not rationally
related to a legitimate State interest.
presumption of constitutionality is a precursor--rather than an
alternative--to constitutional review.
In this case, if the trial court assumed the plaintiffs and
intervenors had demonstrated a conflict with a fundamental right, then
the initial presumption of constitutionality was defeated and the
State had the burden of demonstrating that the statute is narrowly
tailored to further a compelling interest.
The trial court, however,
retained the presumption of constitutionality during its strict
scrutiny analysis and failed to shift the burden to the State.
-26example, it seems the State never demonstrated that the 2% requirement
in ' 163-96(a)(2) was narrowly tailored to accomplish a compelling
the State=s witness, Gary Bartlett, could not recall any
legislative studies or debates regarding the 2% requirement, and he
disclosed that any discussion about the requirement Awas basically,
>Okay, this looks good; let=s try it,= that sort of conversation.@
fact, Mr. Bartlett admitted that he believed 1% would accomplish the
Because the strict scrutiny standard was not
properly applied to this fundamental right, I would remand the case
to allow the trial court to conduct a thorough strict scrutiny review
of ' 163-96(a)(2).
Today=s decision jeopardizes a quintessential component of our
democracy by examining this statute under a deferential standard of
review, rather than a strict scrutiny analysis.
Given the vital role
ballot access plays in our democratic society, we should only condone
an infringement of this right when absolutely necessary.
recognize the State=s interest in the orderly administration of
elections, and I do believe it is within the province of the General
Assembly to place necessary restrictions on ballot access.
such restrictions burden a fundamental right, and I believe the
judicial branch must strictly scrutinize them to ensure that the
General Assembly imposes only narrowly tailored, necessary burdens.
After reviewing the trial court=s findings, it appears a
misunderstanding of our constitutional presumptions infected the
trial court=s application of the strict scrutiny standard.
-27clarified our precedent, I would remand this case to the trial court
to strictly scrutinize North Carolina=s signature requirement
Accordingly, I respectfully dissent.