LIBERTARIAN PARTY OF NC v. State

*336CALABRIA, Judge,

concurring in part and dissenting in part.

I concur in the portions of the majority opinion holding that the claims of the Libertarian Party are not moot and applying strict scrutiny review to the instant case. However, I disagree with the majority’s determination that N.C. Gen. Stat. §§ 163-96 and 163-97 (“the ballot access statutes”) do not violate the North Carolina Constitution (“the State Constitution”) and therefore, I must respectfully dissent from that portion of the majority opinion.

States remain free to interpret their own constitutions in any way they see fit, including constructions which grant a citizen rights where none exist under the Federal Constitution. See Lowe v. Tarble, 313 N.C. 460, 462, 329 S.E.2d 648, 650 (1985). Even where provisions of the State Constitution and Federal Constitution are identical, “we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.” State v. Carter, 322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988)(citations omitted). In construing the State Constitution, this Court is not bound by the decisions of federal courts, including the United States Supreme Court. State ex rel. Martin v. Preston, 325 N.C. 438, 449-50, 385 S.E.2d 473, 479 (1989)(citations omitted).

“All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” N.C. Const. art. I, § 2.

The will of the people as expressed in the Constitution is the supreme law of the land. In searching for this will or intent all cognate provisions are to be brought into view in their entirety and so interpreted as to effectuate the manifest purposes of the instrument. The best way to ascertain the meaning of a word or sentence in the Constitution is to read it contextually and to compare it with other words and sentences with which it stands connected.

State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944) (internal citations omitted). Our State Constitution is not a grant of power. McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961). All power, which is' not expressly limited by the people in our State Constitution remains with the people, and an act of the people *337through their representatives in the Legislature is valid unless prohibited by that Constitution. Id.

Appellants bring their claims under Article I, §§ 1, 12, 14 and 19 of the State Constitution. Article I, § 1 provides that “all persons are created equal” and have the inalienable rights of “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness”; § 12 contains the right of association (“The people have a right to assemble together . . .”); § 14 provides for freedom of speech; and § 19 includes the State Constitution’s equal protection and due process clauses. Appellants also bring claims under Article I, Section 10, which provides that “[a]ll elections shall be free”; under Article VI, Section 1, which establishes the right of all voters to vote for candidates of their choice; and under Article VI, Section 6, which establishes the right of every citizen to run for office. Appellants’ claims also implicate the right to vote, which our Supreme Court has called “one of the most cherished rights in our system of government, enshrined in both our Federal and State Constitutions.” Blankenship v. Bartlett, - N.C. -, -, - S.E.2d — , - (2009).

These provisions lead to the undeniable conclusion that the rights infringed upon by the ballot access statutes are fundamental under the State Constitution. “[A] law which burdens certain explicit or implied ‘fundamental’ rights must be strictly scrutinized. It may be justified only by a ‘compelling state interest,’ and must be narrowly drawn to express only the legitimate interests at stake.” Treants Enterprises, Inc. v. Onslow Cty., 83 N.C. App. 345, 351, 350 S.E.2d 365, 369 (1986) (citations omitted). Thus, the ballot access statutes are subject to strict scrutiny review under the State Constitution.

A. Compelling Governmental Interest

The majority correctly holds that the State has a compelling interest in requiring some preliminary modicum of support before printing the name of a political party’s candidate on the ballot. This allows the State to avoid confusion, deception, and even frustration of the democratic process at the general election. This interest has repeatedly been recognized as compelling by the United States Supreme Court. See Jenness v. Fortson, 403 U.S. 431, 442, 29 L. Ed. 2d 554, 562-63 (1971); Anderson v. Celebrezze, 460 U.S. 780, 788, 75 L. Ed. 2d 547, 557 (1983); Munro v. Socialist Workers Party, 479 U.S. 189, 193-94, 93 L. Ed. 2d 499, 505 (1986). There is no reason that this interest should not be considered equally compelling under the State Constitution.

*338B. Least Restrictive Means

The Fourth Circuit Court of Appeals in McLaughlin v. North Carolina Bd. of Elections held, “[w]hile all states condition ballot access on a showing of some ‘preliminary modicum of support,’ it is beyond judicial competence to identify, as an objective and abstract matter, the precise numbers and percentages that would constitute the least restrictive means to advance the state’s avowed and compelling interests.” 65 F.3d 1215, 1222 (4th Cir., 1995). Therefore, rather than determine whether the methods of the ballot access statutes are the least restrictive way to accomplish the State’s purpose, this Court must instead determine whether “the totality of the [state’s] restrictive laws taken as a whole imposes a[n unconstitutional] burden on voting and associational rights.” Williams v. Rhodes, 393 U.S. 23, 34, 21 L. Ed. 2d 24, 33 (1968). The McLauglin Court referred to this test as an assessment of the “complex whole.” Using this test, the McLaughlin Court upheld the ballot access statutes under the United States Constitution. 65 F.3d at 1226. Because the State Constitution contains unique provisions regarding voting rights that are not contained in the United States Constitution, additional analysis of the ballot access statutes is necessary to determine if the “complex whole” in the instant case violates the State Constitution1.

The people of the State of North Carolina chose to have a constitution which, in contrast to the United States Constitution, specifically governs suffrage and eligibility to office. Under the State Constitution, “[e]very person born in the United States and every person who has been naturalized, 18 years of age, and possessing the qualifications set out in this Article, shall be entitled to vote at any election by the people of the State, except as herein otherwise provided.” N.C. Const. art. VI, § 1. Additionally, “[e]very qualified voter in North Carolina who is 21 years of age, except as in this Constitution disqualified, shall be eligible for election by the people to office.” N.C. Const. art. VI, § 6. Under the State Constitution, a voter who is otherwise qualified for office can be disqualified in only three situations:

First, any person who shall deny the being of Almighty God.2
*339Second, with respect to any office that is filled by election by the people, any person who is not qualified to vote in an election for that office.
Third, any person who has been adjudged guilty of treason or any other felony against this State or the United States, or any person who has been adjudged guilty of a felony in another state that also would be a felony if it had been committed in this State, or any person who has been adjudged guilty of corruption or malpractice in any office, or any person who has been removed by impeachment from any office, and who has not been restored to the rights of citizenship in the manner prescribed by law.

N.C. Const. art. VI, § 8. In all other circumstances, the right of a qualified voter who is 21 years of age to run for election by the people is absolute.

“[A] constitution cannot be in violation of itself, and [] all constitutional provisions must be read in pari materia[.]” Stephenson v. Bartlett, 355 N.C. 354, 378, 562 S.E.2d 377, 394 (2002) (internal citations omitted).' Reading these various provisions of the State Constitution in pari materia, “a serious problem is raised that has to be addressed.” McLaughlin, 65 F.3d at 1223. The McLaughlin Court was particularly troubled by the fact that

North Carolina provides no means by which a small party can nominate a candidate for any office in the state unless it secures the petition support of 2% of the persons who voted in the previous gubernatorial election. That means, for instance, that the [appellants] cannot nominate candidates ... without first meeting the requirements to qualify as a statewide party. Even had [one of appellants’ candidates] for local or countywide office won her election, her ability to designate her party affiliation on the ballot for purposes of reelection would be conditioned on the party’s ability to register support elsewhere. (She could, of course, run for reelection as an independent candidate. But she would then be obligated to identify herself as “unaffiliated” on her ballot access petition, N.C. Gen. Stat. § 163-22(b), and, if her petition succeeded, would appear on the general election in the column headed “Unaffiliated Candidates.” § 163-140.) More generally, no party other than the Democrats and the Republicans can run a candidate in any election in the state in 1996 unless it submits a petition with 51,904 voters across the state (including at least 200 *340in each of four congressional districts) — even if that far exceeds the number of persons registered to vote for that office.

Id. at 1223-24. The McLaughlin Court also noted “the Supreme Court cautioned ... it may be impermissible for a state to ‘foreclose the development of any political party lacking the resources to run a statewide campaign.’ ” Id. at 1224 (quoting Norman v. Reed, 502 U.S. 279, 289, 116 L. Ed. 2d 711, 723 (1992)).

The fact that unaffiliated candidates can be placed on the ballot for local, district, and county offices by submitting a petition with signatures from 4% of the registered voters in that area . . . does not necessarily relieve the problem. The Supreme Court has recognized that “the political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other.”

Id. (quoting Storer v. Brown, 415 U.S. 724, 745, 39 L. Ed. 2d 714, 732 (1974)). Although the McLaughlin Court felt it could not overturn North Carolina’s ballot access statutes without a more explicit holding from the United States Supreme Court, this Court is under no such constraint when analyzing the ballot access statutes under the State Constitution.

Although the State has a compelling interest in avoiding ballot confusion by requiring some preliminary modicum of support before printing the name of a political party’s candidate on the ballot, the compelling interests of the people of North Carolina as explicitly delineated in the State Constitution are thwarted by the ballot access statutes.

Qualified voters under the State Constitution who are affiliated with third parties and wish to exercise their right, enshrined in the State Constitution, to be eligible for election to office by the people in conjunction with their fundamental rights to free speech and association, can only do so by going through the onerous process of collecting almost 70,000 signatures for statewide recognition of their party. This situation exists even if the third party candidate simply seeks election to a local office in a small town where the total number of voters falls far below 70,000. Even if a third party is able to expend the effort required to successfully meet this burden and gain ballpt access, there is still a significant likelihood that such access will be lost, in toto, immediately following the subsequent election, forcing the third party to begin the petition gathering process anew.

*341The United States Supreme Court has recognized that “political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the' other.” Storer, 415 U.S. at 745, 39 L. Ed. 2d at 732. The State, in asserting its compelling interest in avoiding confusion, deception, and even frustration of the democratic process in the general election, fails to provide any basis, rational or otherwise, for why ballot access pursuant to the 4% local requirement for unaffiliated candidates pursuant to N.C. Gen. Stat. § 163-122 or the 500 vote write-in candidate provision of N.C. Gen. Stat. § 163-123 does not cause these ballot problems. The State instead asserts that allowing these same candidates the ability to identify their party on the ballot somehow has the potential to cause substantial problems. The treatment of unaffiliated and write-in candidates demonstrates that the State could, regulate ballot access for political parties in a less restrictive way while still allowing the State to uphold its compelling interest.

North Carolina’s 2% statewide requirements for both ballot access and ballot retention place too onerous a burden on the fundamental rights of members of third parties under the State Constitution. The State, by permitting ballot access under far less burdensome requirements for unaffiliated candidates, has proven that it can accomplish its compelling interest in ballot regulation in a less restrictive fashion. It is ultimately the role of the Legislature, rather than this Court, to determine a precise method of ballot access and/or retention that is permissible under the State Constitution. Our Supreme Court has recognized “our limitations in providing specific remedies for [constitutional] violations committed by other government branches in service to a subject matter . . . that is within their primary domain.” Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 645, 599 S.E.2d 365, 395 (2004). However, the ballot access statutes must, at the very least, allow both political parties and unaffiliated candidates equal access to the ballot.

An analysis of the “complex whole” under the State Constitution must include consideration of the unique voting rights contained in the State Constitution, the inability of political parties lacking the resources to run a statewide campaign to gain ballot access, and the ability of unaffiliated and write-in candidates to run for local office with far less than the 2% statewide requirement for political parties. An analysis that includes these items as part of the “complex whole” of the ballot access statutes leads to the conclusion that the ballot access statutes are too restrictive to survive strict scrutiny under the *342State Constitution. I would hold that N.C. Gen. Stat. §§ 163-96 and 163-97 violate the State Constitution.

. Although the majority procedurally limits its review to Article I, §§ 12, 14, and 19 of the State Constitution, a proper review of the “complex whole” necessarily requires examination of all relevant provisions of the State Constitution.

. The Attorney General of this State has issued an opinion that this provision violates U.S. Const, amend. I. See Opinion of Attorney General to Mr. Clyde Smith, Deputy Secretary of State, 41 N.C.A.G. 727 (1972).