Judge finalizes order preserving We the People’s place on NC ballot

A Wake County judge has issued an order formalizing his decision to keep the We the People Party on North Carolina’s election ballot. The North Carolina Democratic Party had filed suit trying to block the new party tied to presidential candidate Robert F. Kennedy Jr.

The order filed Wednesday formalized a ruling Superior Court Judge Keith Gregory issued from the bench on Aug. 12.

Gregory, a Democrat, rejected the Democratic Party’s motion for an emergency injunction against WTP. Democrats had objected to the State Board of Elections’ July 16 vote to certify We the People as a new political party in North Carolina.

“Here, Plaintiff cannot establish a likelihood of success because the State Board did not commit an error of law in recognizing WTP as a political party under N.C.G.S. § 163-96,” Gregory wrote.

“N.C.G.S. § 163-96 contains a limited and unambiguous set of requirements for certification of a political party through the petition process,” Gregory explained. “Plaintiff contends that an additional requirement should be read into N.C.G.S. § 163-96: that a prospective party is not permitted to have as its purpose the nomination of a specific candidate.”

“The plain text of the statute contains no such requirement,” the judge added. “N.C.G.S. § 163-96 says nothing to indicate that parties with the purpose of nominating a specific candidate cannot be certified as political parties in North Carolina. The only requirement that speaks to the party’s purpose and intent at all is the requirement that the parties’ ‘organizers and petition circulators shall inform the signers of the general purpose and intent of the new party.’”

Gregory labeled the law’s text “clear and without ambiguity.”

“[E]ven if it is assumed the sake of argument that N.C.G.S. § 163-96 can be interpreted as Plaintiff suggests, which this Court has concluded it cannot, it raises serious constitutional questions,” he wrote.

“This Court concludes that if the State Board were required to employ Plaintiff’s proposed interpretation of the statute when reviewing the sufficiency of a prospective party’s petition, then doing so would likely impact WTP’s associational rights in a way that would raise a serious question under the United States Constitution,” Gregory explained.

“Plaintiff’s proposed interpretation would require the State Board to engage in a test to determine whether the purpose of the proposed party was acceptable or not,” the judge added. “Such an interpretation would raise a serious question as to whether such speech regulation would encroach on the constitutional rights of prospective political parties.”

“Because the proposed interpretation of the statute raises a serious constitutional question that can be avoided through a plain language reading of the statute, the doctrine of constitutional avoidance dictates that it be rejected in favor of the Board’s interpretation of N.C.GS. § 163-96,” Gregory wrote.

Gregory listened to nearly 90 minutes of arguments on Aug. 12 before ruling in favor of the state elections board and We the People.

He rejected Democrats’ claim that Kennedy  used We the People as a way to get around North Carolina’s petition signature requirement for independent candidates.

The judge said it would be “unconscionable” for the court to tell a candidate that he couldn’t rely on existing state law to secure ballot access. Gregory confirmed with Special Deputy Attorney General Terence Steed, who works for Democratic state Attorney General Josh Stein’s office, that state officials believe the State Board of Elections followed the law when approving We the People as a political party in July.

Gregory also pushed back on the argument that party affiliation would determine the outcome of a legal dispute. He called the assertion “somewhat egregious.”

“What plaintiffs have a quarrel with is the North Carolina law itself,” noted Oliver Hall of the Center for Competitive Democracy, who represented We the People in the hearing. Democrats did not have a quarrel with either the actions of the party or the state elections board, he argued. “There is no basis in fact or law” for an injunction blocking We the People’s ballot access, he said.

North Carolina law does not allow a new political party for the “sole purpose” of electing a single candidate, countered Democratic Party lawyer Raymond Bennett. Rather than deny We the People’s bid, the state elections board “punted to this court,” Bennett argued.

In addition to nominating Kennedy as its presidential candidate, We the People has selected Jeff Scott to serve as a candidate in state Senate District 40 and Mark Ortiz to serve as a candidate for Rowan County commissioner. Both attended the Aug. 12 hearing.

We the People filed a motion this month to dismiss the Democratic Party’s suit. “We the People Party’s establishment and certification are protected by the First Amendment. Supreme Court precedent guarantees the right to form a political party, which includes the right to organize and associate for political purposes. NCDP’s claims infringe upon these rights, as they seek to prevent We the People Party from exercising its constitutionally protected activities.”

The Republican National Committee filed paperwork opposing Democrats’ proposed injunction. “The unrebutted evidence before the NCSBE when it certified the WTP Party showed that the WTP Party has a separate existence apart from the RFK Jr. campaign – including that the WTP Party seeks to run candidates after the 2024 election as well as the party’s nomination of candidates not just for President and Vice President, but also for the North Carolina Senate and Rowan County Commissioner,” GOP lawyers wrote. “As such, because the NCDP cannot show that it is substantially likely to succeed on the merits of its claim, the Court should deny Plaintiff’s Motion.”

Democrats’ initial complaint targeted Kennedy’s strategy for securing a spot on North Carolina’s ballot.

“[U]naffiliated candidates seeking statewide office must gather signatures from 1.5% of the voters in the last gubernatorial election, but new parties need only collect from 0.25%,” Democratic Party lawyers wrote in a court document. “While the signature threshold is lower for a party, the statute imposes ‘additional burdens’ on new political parties ‘to attain and retain such recognition,’ including the duty to ‘inform the signers of the general purpose and intent of the new party.’”

“Robert F. Kennedy Jr. is a self-declared independent candidate for president,” Democrats added. “In November 2023, Kennedy registered in North Carolina as an unaffiliated presidential candidate and thus had to gather signatures from 83,188 registered voters. But in January 2024, the Kennedy campaign decided that it would be easier to form a new political party — the WTP Party — with the ‘sole purpose’ of placing Kennedy’s name on the ballot. Through this maneuver, the Kennedy campaign purported to cut its signature requirement by five-sixths — from 83,188 to 13,865.”

Democrats cited comments State Board of Elections Chairman Alan Hirsch made on July 16, when the board voted 4-1 to recognize We the People as a political party.

“Board Chair Hirsch found that the WTP Party was a ‘subterfuge’ — a candidate campaign committee masquerading as a political party — but voted ‘reluctantly’ in favor of recognition because ‘it is such a close call that ultimately a court would have to decide’ whether North Carolina law permits that maneuver,” Democrats’ lawyers wrote. “Hirsch explained that he was ‘not sure the Board should be the one that is standing in the way if someone wants to challenge that in court’ and opined that the challenger would ‘have a good case.’”

“The NCDP filed this lawsuit so that a court can decide that important, recurring question,” the Democratic brief continued. “If the Board’s decision stands, the implications are clear: future independent candidates will stop complying with the ballot-access and campaign finance requirements the General Assembly enacted for unaffiliated candidates. Future candidates will simply follow the easier path to ballot access — and to significantly more permissive campaign finance rules — by creating a single-candidate, single-election ‘political party.’ If the Kennedy Campaign succeeds in its efforts, North Carolina can expect a flood of candidates masquerading as political parties to follow this strategy in 2026 and beyond.”

We the People filed a brief labeling the North Carolina Democratic Party’s lawsuit “frivolous.”

“NCDP does not allege that We the People Party failed to fulfill any applicable statutory requirement, nor that the Board lacked statutory authority to certify the party,” wrote lawyers for the third party, including attorneys from the Center for Competitive Democracy in Washington, DC, and the More Voter Choice Fund in West Hurley, New York.

“NCDP cannot truthfully assert such allegations because all parties concede that We the People Party’s petitions were sufficient under North Carolina law,” the brief continued. “Under such circumstances, the mandatory language of § 163-96(a)(2) required the Board to certify We the People Party as a new political party.”

“NCDP nonetheless alleges that the Board’s certification of We the People Party was ‘in violation of North Carolina law,’ but pointedly fails to cite any statutory provision that was allegedly violated,” We the People’s lawyers added.

“More important, it is well-settled that We the People Party has a First Amendment right to form a political party,” the brief continued. “NCDP’s attempt to assert a cause of action against We the People Party for exercising this fundamental right is squarely foreclosed by decades of Supreme Court precedent, which NCDP conspicuously fails to address. Not surprisingly, given the utter lack of legal grounds for NCDP’s claims, its Brief … is nearly devoid of citation to any authority recognizing the First Amendment rights implicated here.”

“But the extraordinary relief that NCDP seeks – a court order prohibiting the Board from certifying We the People Party as a political party despite its full compliance with North Carolina law – would violate those rights,” We the People’s lawyers argued.

“NCDP has a history of pursuing frivolous litigation that, like this lawsuit, seeks to suppress North Carolina voters’ choices by removing duly qualified new parties from the ballot,” the brief continued. We the People cited Democrats’ efforts to block the Green Party from North Carolina’s election ballot in 2022.

The State Board of Elections filed its own brief opposing Democrats’ injunction request.

“At bottom, Plaintiff’s argument turns on the notion that a new political party cannot be formed for the sole purpose of placing a particular candidate on the ballot. That limitation, however, cannot be found in state law,” the elections board’s lawyers wrote. “Moreover, even if state law did contain such a limitation on the purpose of a political party, the evidence before the State Board established that the We The People Party (‘WTP’) was not created for the sole purpose of placing a specific individual on the ballot. This Court should therefore reject Plaintiff’s incorrect interpretation of state law and uphold the State Board’s decision to certify WTP for inclusion on the ballot this election cycle.”

Gov. Roy Cooper, a Democrat, appointed Gregory to his Superior Court post in May 2018. Voters elected him to an eight-year term later that year. Former Gov. Bev Perdue, also a Democrat, appointed Gregory as a Wake County District Court judge in 2010. He won elections to that post in 2010 and 2014.