News: CJ Exclusives

Unaffiliated Candidate Sues for Ballot Access

30-percent support in previous election not enough to retain status

RALEIGH — Unaffiliated legislative candidate Mark Brody is suing the state over what he calls unfair and unconstitutional ballot access laws.

After collecting the 3,000 signatures it took to appear on the 2008 ballot, Mark Brody ran as an unaffiliated candidate for North Carolina House District 103.

He earned 30 percent of the vote.

Brody assumed his high numbers at the polls would secure him an automatic place on the ballot in 2010.

He was wrong. When he went to his County Board of Elections last month to file for office, he was turned away. The board said if he wanted to get back on the ballot he had to petition all over again. He has until June to turn in the signatures.

Brody refuses to petition again. He says doing so would lend legitimacy to what he calls an unjust and incomplete election law.

The law is incomplete, he says, because while it addresses how unaffiliated candidates initially get on the ballot — collecting signatures — it does not address how they can stay on the ballot.

Parties are allowed to stay on the ballot from one election cycle to the next as long as their gubernatorial candidates earn at least 2 percent of the vote.

Brody wants to know what percentage of the vote he has to win to earn a permanent position on the ballot.

“The whole point of the signatures is to prove a modicum of support,” said Jordan Greene.

Jordan is a co-plaintiff with his father Brian Greene in a lawsuit against the state for imposing a signature requirement on unaffiliated candidates that is “too high.” Brian failed to collect the 16,500 signatures required to run for U.S. Congress in 2008.

While the Greenes’ suit is about ballot access, they applaud Brody for trying to pave the road toward ballot retention.

“If you take really any percentage of the vote,” Jordan said, “You apparently have a modicum of support.”

Thirty percent, he added, is more than a modicum.

Board of Elections attorney Don Wright disagrees.

“He [Brody] says, ‘I’ve got public support.’ Well, there’s no definition of public support, because there’s nothing in the statutes that defines it,” Wright told CJ. “Public support in his eyes may be different than public support in someone else’s eyes, and that’s why you have statutes that spell out things.”

But the whole point of Brody’s lawsuit is that the statute doesn’t spell it out, as Wright noted earlier in an e-mail to Brody:

“We disagree on what vote total shows “public support” … What does the statute say? … There is no statute. And wait a minute, we may change our policy on ‘public support’ next year or even modify it on a case-by-case basis depending upon the office or person involved. Of course, this is not being asserted seriously, but to show you how arbitrary matters can be where there are not clear authoritative statutory requirements…”

It’s the open-endedness of the statute that Brody hopes the courts find unconstitutional. Because “public support” is not defined, an unaffiliated candidate hypothetically could win an election, hold office for two years, and still have to go out and collect signatures to be allowed to run for re-election.

Republicans and Democrats don’t have to collect signatures giving them permission to run again, no matter how poorly they do in a given election, he said.

“If the Libertarians can stay on with 2 percent of the vote, then why the heck can’t I stay on with 30 percent?” Brody asked.

Greene’s lawyer Bob Bastress said there might be an equal protection issue at stake, although he wasn’t sure the court would agree. The court might claim an individual is not entitled to the same rights and protections as parties, he said.

Brody filed his suit with the Mecklenburg County Superior Court on Feb. 11. The court has 30 days to respond.

“This lawsuit is going to catch them by surprise,” Brody said.

Brody is one of a handful of unaffiliated candidates to make it on North Carolina’s ballot in the past 100 years.

“They’ve never had to address the issue before, because no unaffiliated candidate has ever made it this far,” Brody said. “Why bother producing a procedure if they don’t expect anyone will ever qualify?”

If the court does strike the statute as unconstitutional, the legislature will be forced to write a clearer, less restrictive one.

Jordan Greene said his group North Carolinians for Free and Proper Elections will have a bill ready for the General Assembly if the time comes.

He recommends a flat, 1,000-signature requirement for unaffiliated candidates, rather than the current 4 percent for districtwide candidates and 2 percent for statewide candidates.

Greene called Brody’s idea “great” and said he is trying to work it into the proposal. He said he is thinking of eliminating the voting requirement altogether, so all a candidate or party would have to do is collect signatures once to earn a permanent place on the ballot, no matter what result he got at the polls.

Brody would like to add a provision changing the term “unaffiliated” to “independent,” which is the term used in most states for candidates who choose not to align themselves with any political party. He said the prefix “un” has a negative connotation like “un-American, unpatriotic, and unqualified.”

Brody calls himself a constitutional conservative. When asked why he wouldn’t run as a Republican or Libertarian, he said neither party represented him.

“I am a fiscal and social conservative. Libertarians are socially noncommittal,” he said. “And if the Republican Party straightens up its act and decides what it actually believes in … maybe someday I’ll join them,” he added.

“I have nothing against a basic two-party system,” he said. “The problem is occasionally that system breaks. It becomes unrepresentative of a lot of folks. At that point, the only way to wake them up is to take the office away.”

Sara Burrows is an associate editor of Carolina Journal.

[EDITOR’S NOTE: An official at the State Board of Elections told Carolina Journal that Brody had been the only unaffiliated candidate to appear on a North Carolina ballot since the state took charge of ballot access. That information is incorrect, and the story has been corrected.]