(Picture of Cornel West is Creative Commons by Gage Skidmore.)
A pair of court cases concluded on August 12 confirmed that two new parties can be officially recognized and on the ballot in November. Neither case should have required a court ruling, highlighting the need to reform how new parties are certified by the North Carolina State Board of Elections (SBE).
The RFK Jr.’s We the People and Cornel West’s Justice for All parties faced headwinds at the SBE despite getting much more than the required number of valid signatures on their new party petitions. Those headwinds were caused by opposition from the Democratic Party organizations, including the Elias Law Group, and the Democratic-controlled SBE board’s receptiveness to that opposition.
We the People Party Survives a Court Challenge the SBE Chair Encouraged
As detailed in my testimony to the North Carolina House Oversight and Reform Committee on July 23, the majority of the SBE board felt compelled to certify the We the People Party. Still, board Chairman Alan Hirsch made the unusual request for someone to challenge their decision in court:
After a further delay, the board voted to certify the petition of the We the People party by a 4-1 bipartisan majority vote, but only after Chairman Alan Hirsch all but requested the Democratic Party to sue the board over its decision, saying that he believed “there has been subterfuge” regarding their petition and that “if someone wants to challenge that in court, they are welcome to do so. I think they have a good case.” [Hirsch quote is from a recording of the July 16, 2024 meeting of the North Carolina Start Board of Elections.]
Hirsch got his wish when the North Carolina Democratic Party sued the SBE to remove the We the People Party from the ballot. But Judge Keith Gregory rejected their argument that We the People used subterfuge to become officially recognized as a party:
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.”
Oliver Hall of the Center for Competitive Democracy, who represented We the People in the case, noted, “What plaintiffs have a quarrel with is the North Carolina law itself.”
Justice for All Wins in Court What They Lost at the SBE
The SBE board rejected the certification of Dr. Cornel West’s Justice for All Party at the same meeting at which it accepted that of the We the People Party, even though that party also had more than enough valid signatures for certification.
US District Judge Terrence Boyle ruled that the board’s decision violated the First Amendment rights of Justice for All (JFA) members:
“In declining to certify JFA as a new political party, the Board has categorically excluded JFA and its candidates from the ballot,” Boyle wrote in the 30-page order. “As a result, the Board has precluded those voters who wish to associate with both from exercising their First Amendment right to do so. That is a severe burden on First Amendment rights.”
Boyle noted in his August 12 ruling that the statistical method the board used to justify rejecting the Justice for All Party’s petition was flawed:
“[T]he Board’s conclusion that a ‘substantial portion’ of signers advised the Board that they did not sign and that ‘many others’ were not told of JFA’s purpose does not withstand scrutiny,” Boyle wrote. “The Board relied on a survey completed by NCSBE staff that suffers from serious flaws…”
“This survey — conducted months after petitions were collected and based on an exceedingly small percentage of petition-signers — is woefully insufficient to support the Board ‘s decision as narrowly drawn,” the judge wrote…
“The Board effectively disenfranchised over 17,000 North Carolina voters who signed petitions to certify JFA as a new political party on flawed, highly suspect grounds.”
I noted problems with the methodology of the SBE’s survey of Justice For All Party petition signers in my July 23 testimony for the North Carolina House Oversight and Reform Committee:
To their credit, board staff then conducted their own review of the Justice for All petition by attempting to contact a random sample of 250 verified signers. They were able to reach 49 people on that list, a response rate of 19.6 percent. Of those, 21 said they did not sign the petition or do not remember signing it. That is 42.9 percent of all verified signers who were successfully contacted.[ix]
It may be tempting to extrapolate from those 21 cases and presume that over 40 percent of all the verified signatures submitted from Justice for All are from people who did not sign the petition. There are two problems with making such a presumption. First, board staffers asked people to remember signing a petition sometimes weeks or months after reportedly signing it. It is easy to understand that someone who signed a petition in a grocery store parking lot in February may not recall signing it when an official calls to ask about it in July. Those who said they remembered signing the petition were then subjected to a series of follow-up questions…
In addition, a sample size of 49 from a population of 17,385 produces a margin of error of 14 percent.[xii] That is assuming that you are willing to accept a confidence level of 95 percent, meaning that one out of every twenty surveys is outside the margin of error. If that is an unacceptable risk for denying people their political rights, a 99 percent confidence level of the same survey has a margin of error of 18 percent. While the margin of error can go in both directions, it compounds the uncertainty caused by memory deficiency.
In short, while the random sample conducted by State Board of Elections staff is a promising beginning for what could be a future method for verifying a new party petition, its application here is inadequate.
(Follow the link above for a fuller description of the SBE survey’s methodological problems.)
How to Reform the Party Petition Process
So, including a Green Party lawsuit in 2022, we have had three lawsuits in the same number of years, each resulting in a new party getting candidates on the ballot. That highlights a need to reform the party petition process. I have offered several such reforms (click through for details):
- The SBE should better inform party petitioners about the “purpose and intent” requirement and determine if parties have met that requirement earlier in the process.
- Move the deadline for submitting petitions from June 1 to May 1 to give the board more time to finish its work.
- Make per-unit payments for signature gatherers illegal (per-unit payment is already unlawful for voter registrations).
- Use a survey similar to that the SBE conducted for the Justice for All Party petitions, but “the process would be systematic so that all parties are treated equally, done earlier to mitigate deficiencies in memory, and with a larger sample to increase statistical validity. Such a process should also account for ‘false negatives,’ such as people who signed petitions but do not remember doing so.” Basically, the survey should be bigger and done earlier.
The SBE can implement some of those reforms, while others would require a change in election law by the General Assembly. They should be implemented in 2025 to lessen the chance that future party petitions will turn into lawsuits.
