Do North Dakota laws discriminate unfairly against third-party candidates for office?
The key word there is "unfairly," and the answer likely is no.
Yes, the laws discriminate. "North Dakota's vote requirements in primary elections make it difficult for legislative candidates who aren't Democrats or Republicans to run in the general election," as a recent Associated Press story pointed out.
But are the difficulties unfair?
On the contrary, the rules seem perfectly fair. Those rules are as follows: In order to win a spot on the November ballot, House and Senate candidates need a minimum number of votes in the primary.
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"The minimum varies by district," The AP story noted. "Candidates must get votes equaling at least 1 percent of their district's population." In Grand Forks' District 17, for example, that means 131 votes in the primary, the story reported. Other districts are comparable because they're similar in size.
As Gary Emineth, North Dakota Republican Party chairman, said in the story, "If you can't get 130 votes, you really aren't much of a movement." He's right: Given that legislative races in November often rack up more than 10,000 votes, a threshold of a little more than a hundred votes doesn't seem unreasonable.
But why are the ballots restricted at all? Isn't that unconstitutional?
Again, the answer is no, and this time it's more definitive. "States have a right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot," a decisive the U.S. Supreme Court majority ruled in 1986.
The case was Munro v. Socialist Workers Party; and if North Dakota's law gets challenged in court, Munro will be the key precedent.
The case arose when the Socialist Workers Party in the state of Washington challenged that state's own ballot-access laws. Like North Dakota's laws, Washington's required minor-party candidates to get a minimum number of votes in the primary in order to get on the general-election ballot.
The Supreme Court ruled strongly in Washington's favor, declaring the state was "clearly entitled" to enact rules "to simplify the general election ballot and to avoid the possibility of unrestrained factionalism at the general election."
There is one key difference in the state's laws: Washington's threshold is lower than North Dakota's is. In Washington, candidates had to get only 1 percent of all votes cast for that office in the primary election. In contrast, North Dakota requires votes totaling 1 percent of the district's population.
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That higher threshold may leaves North Dakota's laws somewhat vulnerable to a challenge. But remember, the court unequivocally declared that states can ask candidates "to make a preliminary showing of substantial support" -- and that's exactly what a 1-percent-of-the-population requirement is.
The North Dakota ballot can be accessed by any party whose candidates win votes numbering in the dozens. Parties whose candidates can't reach those totals should work on boosting their popularity, not changing the rules.
-- Tom Dennis for the Herald
