On March 1, U.S. District Court Judge Graham Mullen upheld North Carolina’s mid-May petition deadline for newly-qualifying parties, in a 12-page opinion in North Carolina Constitution Party v Bartlett, 3:12cv-192, western district. Even though there have been 51 court opinions striking down early deadlines, Judge Mullen managed to write an opinion that mentions only one of them, Anderson v Celebrezze. And he only cited Anderson on the question of what level of scrutiny to apply, and did not discuss the actual holding in that decision, which was a U.S. Supreme Court opinion that said early petition deadlines are unconstitutional for both minor parties and independent candidates, at least as applied to presidential elections.

The opinion says the May petition deadline does not injure the plaintiffs, the Constitution Party and the Green Party, because even if they had more time, they probably couldn’t complete the petition. This conclusion ignores the many precedents that say that plaintiff political parties and independent candidates do have standing to challenge early petition deadlines, regardless of whether they could complete the petition if they had more time or not. These precedents even include a federal North Carolina precedent, Greaves v North Carolina State Board of Elections, 508 F.Supp. 78, in which North Carolina’s April petition deadline for independent candidates was declared unconstitutional even though the plaintiff, Percy Greaves, the American Party presidential candidate in 1980, had not made any effort to petition in North Carolina and did not claim that he could have qualified if the deadline had been later.

The decision rests almost entirely on the point that North Carolina lets petitioning groups start to petition as early as they wish. However, four times, the U.S. Supreme Court has struck down early petition deadlines, or remanded the case so that it was later declared unconstitutional, and in all four instances, the state permitted petitions to circulate as early as the group or candidate wished. In Anderson v Celebrezze, Ohio had no limit on when an independent presidential petition could start to circulate. In Mandel v Bradley, similarly, Maryland did not have any law on how soon a candidate or a party could circulate a petition. In Williams v Rhodes, the first case in which the U.S. Supreme Court struck down a too-early petition deadline, Ohio had no limit on when a newly-qualifying party could start to circulate. In 1977 the U.S. Supreme Court also summarily affirmed a decision striking down an April deadline for independent candidates in Arkansas (Lendall v Jernigan), and Arkansas at the time did not have any law on how soon a candidate could begin to circulate a petition.

The U.S. Supreme Court decision in Mandel v Bradley says that an early petition deadline is probably unconstitutional if the historical record shows that the petition is seldom successfully completed. In North Carolina, only once in the past ten years has any petition for a newly-qualifying political party succeeded; that was the Libertarian petition of 2008. Yet Judge Mullen did not even mention Mandel v Bradley. The Constitution and Green Parties will appeal.

Judge Mullen wrote the decision in great haste. The hearing was February 27, but the judge only permitted 15 minutes for the entire hearing. He then released the opinion two days later.