Partisan gatekeepers of NC ballot access deserve ridicule

In theory, it should be pretty simple — candidates aspiring to an office should set up a committee to receive donations, hire some campaign workers, and get to work convincing voters. But, at least in North Carolina, it is much more complicated. And in addition to the hurdles found in our state’s general statutes, candidates also have to contend with partisan gatekeepers, who appear very motivated to exclude candidates that might pull voters from their favored candidate.

In 2022, there was a long-running battle to get the Green Party, and their US Senate candidate Matthew Hoh, recognized and on the ballot. Democrat-appointed chairman of the North Carolina State Board of Elections (NCSBE) Damon Circosta and his fellow Democrats held a majority on the board and could not be convinced to approve the Green Party’s signatures (even though there were more than enough signatures and they had already been verified by county boards of elections). It took a judge ordering the NCSBE to give Hoh and the Green Party ballot access to finally resolve the issue.

Some likely assumed that was an embarrassing one-time strategy and that Democrats would shy away from such bad optics in the future. But in 2024, many of the same players are at it again. It’s not just the Democrat-majority state elections board, but also the Democratic Party apparatus and Democrat super-lawyer Marc Elias, who was involved in attempting to invalidate Green Party petition signatures last time around.

Circosta, feeling compassion for the current board getting the same criticism as the board did last cycle when he was chair, wrote an op ed for WRAL defending them. He argued that “Democracy is best served when they are able to do their jobs without fear of ridicule, intimidation or reprisal. State board members are appointed public servants who work in regulatory and “quasi-judicial” capacities. Regardless of the political party in the majority, they have historically been spared organized efforts to embarrass and vilify them.”

Well, sorry. Partisan appointees making highly consequential decisions along party lines that inevitably favor their own party are not above ridicule. In fact, it’s just the kind of thing that needs some attention and ridicule, and for some particularly egregious decisions, yes, some embarrassment and vilification.

Without getting into too much detail, this cycle, the controversy surrounds the Constitution Party, Robert F. Kennedy Jr and his We the People North Carolina Party, as well as Cornel West and his Justice for All Party. All parties gathered enough signatures to be recognized and had those signatures verified by county boards of election, as required. But the NCSBE’s Democrat majority only voted to approve the furthest right of the group, the Constitution Party. Then, this week, they finally approved RFK Jr and his party as well, which is likely to pull votes from both the left and the right.

But, just like last cycle with the Green Party, the board voted not to approve the furthest left of the parties, Justice for All Party, which would likely only pull from Democrats. The board said it was because of lack of response to a last-minute inquiry for more information on signature gathering. But the Justice for All Party responded on social media, blasting the board’s Democrat majority, calling it “political persecution orchestrated by Marc Elias and the NC Democrats.”

The JFA Party chair’s letter, linked in the post, said that they received what they call an “illegal subpoena” for all their information on petition gathering only six days before the deadline and were threatened with jail for failing to respond. Now, after they failed to gather the information in time, they were denied access to the ballot.

NC House Speaker Tim Moore said in a statement after the decision, “Democratic partisans on the State Board of Elections have ignored clear state law and refused to certify third parties that pose a threat to Joe Biden in November. This is election interference at its worst, and I anticipate the House Oversight and Reform Committee will examine the board’s decisions at their July 23 hearing.”

RFK Jr, whose party was finally certified, said in a statement, “I want to thank the thousands of volunteers and supporters in North Carolina who made this victory possible. This shows that the DNC’s challenges are frivolous and we will defeat them all.”

The Libertarian Party of North Carolina, which automatically qualifies because of their larger presence, called for “an official investigations into the North Carolina State Board of Elections (NCSBE), the Clear Choice Action super PAC, and the Elias Law Group for election interference and fraud” due to their decision not to recognize Justice for All. They also demanded “the immediate resignations” of the Democrats on the board, accusing them of being “unable to act in the interests of the people of North Carolina over the demands made by powerful outside interests in their party.” 

Hoh, the Green Party candidate blocked last cycle, said in response to the NCSBE decision, “Anyone who takes the assertions of fair and non-partisan decision-making by the Democrats at the NC State Board of Election (including the politically appointed executive director, legal counsel and spokesperson) in denying the Cornel West campaign ballot access is either ignorant of very recent history or willfully denying it. As in our case in 2022, NCSBE’s accusations of fraud against the West campaign and Justice For All Party seem to be evidence-free, and the NCSBE’s actions devoid of due process.”

The board of election’s reasoning seemed to be two-fold: First, it isn’t clear that Justice for All wants to be a party for any reason other than running Cornel West as a presidential candidate; and second, in a random sampling of petition signers, there were some entries that were likely fraudulent.

Brent Woodcox, a top state Senate staff attorney, in a social media post, said board member Millen’s point about the party’s intention is irrelevant. The statute doesn’t say parties are only valid if they intend to run many candidates. And even if that was the case, the No Labels Party was recognized as a party in North Carolina earlier in the year while explicitly stating they had only planned on running a presidential candidate, which they didn’t even end up doing.

And on the second point, about finding a number of fraudulent signatures: that is always the case. There is always the volunteer or paid campaign worker who goes out there with their clipboard and the adds some extra signatures. These should be found and removed, but as the Republicans on the board pointed out, there was no indication that these bad entries came anywhere close to putting the Justice for All Party under the threshold of signatures needed.

There are likely bad signatures among the batch for the Constitution Party and the We the People Party. All had their signatures verified by local boards of election, which should be sufficient, but only the Justice for All Party had to prove beyond all doubt that the county boards certified correctly. It’s hard not to assume that this is due to Justice for All being the only party that will solely fish in the Democrats’ pool.

What now?

There may be some partisans on the right who see this issue repeating and think, “Well, we just need to get our people on that board, then we can do the same in reverse (blocking all the right-leaning third parties and rubber stamping all the left-leaning third-parties).” I haven’t heard anyone say this, but people being people, somebody’s thinking it.

A better situation for all, though, might be to not have a partisan panel in charge of determining whether parties who already gathered enough petition signatures (and had those signatures verified with local boards of election) get to be considered parties. There are too many perverse incentives at play. The less power the gatekeepers are given in this circumstance the better.

I don’t pretend to have the expertise to know exactly what should happen instead. But a few ideas come to mind. What if (in top-of-the-ticket races that attract a lot of candidates) any candidate that can reach a full percentage point in a poll from a list of approved pollsters is listed on the ballot? This works for qualifying candidates for major debates. Seems like a version of this might work for getting on the ballot too.

By only allowing candidates on the ballot in major elections who reach 1%, you avoid the objection of having dozens of insignificant names on the ballot, since only “major” third-parties, like the Green Party or Libertarian Party, are likely to reach 1% in polling. Those who can’t reach 1% by a certain deadline can still run their campaign, of course, just as write-in candidates.

For those further down the ballot, just allow whoever files the paperwork and pays the fees to appear. And for making a party “official,” why put them through a silly exercise of getting a few thousand confused people on the street or at a music festival to sign their petition? Just let them be a party if they file the paperwork and follow election laws. What does it matter if there are 1,000 little parties that nobody has ever heard of or voted for? The only reason to care is partisan gatekeeping by the more established parties.

It’s one idea, and I’m sure it has problems. But some alternative to our current paradigm appears necessary to prevent future partisan gatekeeping of the ballot. Because, whether Circosta, Millen, and company like it or not, these kinds of decisions should not be done without public discussion, and, if necessary, ridicule.