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Opinion

Independents and Major Party Candidates Should Play by the Same Rules

It might surprise you to learn North Carolina (NC) has more unaffiliated (Independent) voters than Republicans. The percentage of NC voters registered as unaffiliated has been steadily increasing from 18% in 2004 to 32% in 2019.

Yet despite this fact, there are currently zero unaffiliated representatives in our state legislature, zero unaffiliateds on any board of election (county or state), and only a handful of unaffiliated judges remaining in our judiciary. This reality is not caused by a lack of leaders among the unaffiliated, but rather by a legal structure designed to limit political competition. It is time for the courts to reevaluate.

When registering to vote in NC, as is generally true across the US, new voters must “Provide your choice for political party affiliation.” This commonly accepted practice of self-inflicted societal division has negative consequences for everyone, but it particularly limits the unaffiliated’s ability to run for office. If unaffiliateds want a seat at the table, they must play by a special set of rules. Instead of paying a modest filing fee to compete against most likely one or two opponents in a taxpayer-funded party primary, unaffiliateds are required to gather an almost impossible number of physical signatures (petitions) in order to have their name on the general election ballot.

There are two primary arguments the law uses to justify treating unaffiliated candidates differently. The first is the idea that, unlike those in political parties, unaffiliateds are said to lack a common set of guiding principles or beliefs; and second, is the Court’s position that collecting enough signatures is not any more difficult than winning a taxpayer-funded party primary. But the data shows deep flaws in both of these arguments.

In 1971, the Supreme Court said the difference between winning a party primary and gathering enough signatures is “not of constitutional dimension.” But if the separate rules are truly equal in difficulty then the success rates for both should be at least roughly equal to each other; and they are not. In NC, 39% of primary candidates win their race, while approximately 10%* of unaffiliateds successfully collect enough signatures. Are we to believe unaffiliateds are just too disorganized, lazy, or lacking in charisma to reach the 39% success rate?

How many signatures are needed in NC? Generally speaking, NC requires signatures from 1.5% of the registered voters within the district of the office being sought. While this might look like a small number when framed as a percentage, there’s nothing small about the actual task. Over the last three election cycles the average number of signatures required were; 2,166 for the NC House (that’s 12 signatures per day for 6 months); 5,368 for NC Senate (29 per day for six months); 11,518 for US House of Representatives (62 per day for six months); and lastly, 71,545 to run for the US presidency, US Senate, or NC governor (that’s 385 per day for six months).

Over the last three election cycles, only six unaffiliateds collected enough signatures to get on the general election ballot, and those were for the NC House, which as you can see, requires the fewest number of signatures. Keep in mind, these are not digital signatures or likes on Facebook, but actual physical signatures made on a piece of paper with boldly printed formal language at the top, and which must be returned by hand or mail.

During her 2018 run for NC House district 13 as an unaffiliated, Pene DiMaio became one of the rare people to collect enough signatures. Ms. DiMaio would later say, “What sealed the deal for me NOT to try again was that in order to run again, and every two years after THAT,  I would have to gather the SIGNATURES AGAIN!!” The reason there are no unaffiliated representatives is because the challenge of simply getting onto the ballot is one shade short of impossible.

Equally flawed is the idea that unaffiliated voters lack any common beliefs. 94% of unaffiliated voters in NC agree or strongly agree with the following statement, “I am unaffiliated because I want to vote for candidates based on their ideas and character, not their political party.” This general ethos of objectivity is no less cohesive than the broad language currently “uniting” those in political parties. If Democrats stand for equal rights & healthcare for all, and Republicans stand for small government & strong military, then unaffiliateds are for ideas & character over political parties. Additionally, the state’s decision to use the term “unaffiliated” instead of “independent” serves as a linguistic trick conjuring the sense of someone being an outsider even though unaffiliateds are the second largest voting block in NC. Despite the connotation of their name, unaffiliateds share the common belief that we should look at our potential leaders’ words and actions instead of relying so heavily on overly broad and divisive political labels.

In 2017, NC changed its judicial elections from nonpartisan to partisan. Meaning, in the past, judicial candidates did not need to announce their political affiliation whereas now they do. There are five unaffiliated superior court judges who were elected prior to the rule change, and in 2022 (and 2024), these judges will face the unfair choice of either joining a political party or having to collect thousands of physical signatures to maintain their independence.

Unaffiliateds do not run for office nearly as often as party members because the cost-benefit analysis is much less favorable for unaffiliateds. In NC, on average, 207 party members will run in the primaries each election cycle, compared to less than 20* who attempt to run as unaffiliated. This disparity is true despite the fact that unaffiliateds care about politics as much as party members.

Over the last two election cycles, unaffiliateds and party members in NC voted at essentially the exact same rate. Again, using the NC legislature as an example, those wishing to run for office are faced with a choice between; a) affiliating with a political party, paying $140, being named an official candidate listed on the board of election website as well as on all sample and official primary ballots, campaigning as one wishes, and facing an average of less than two opponents; or b) remain unaffiliated, accept the status of “prospective candidate” during the primary season, get essentially zero public recognition from the board of election during primary season, attempt to collect thousands of signatures knowing that falling even one short is failure, and then, if successful, pay the $140 filing fee.

A very accomplished man once told me, “A signature is the truest form of currency.” Direct voter interaction (such as going door-to-door and collecting signatures) is much more demanding than indirect voter interaction (such as putting up signs along the road). Unaffiliateds are required to do disproportionately more direct voter interaction than their counterparts. Of course primary contestants will also likely engage in some direct voter interaction during their campaign, but those efforts are voluntary for them, not a measured imperative.

Most any politician will tell you meeting with people is an enormous part of the process, but when the work of asking for signatures, and explaining why you need the signatures, and explaining that the signatures are not votes, all gets added to the already difficult challenge of campaigning; it becomes a strong deterrent for anyone considering a run as an unaffiliated.

Even when one considers the simplest-best-case-scenario for signature collection where a voter might download the petition from the prospective candidate’s Facebook page or website, then sign it, and return it by mail; just ask yourself, when is the last time you downloaded a document, printed it out, signed it, and returned it by mail? Unaffiliateds who wish to hold office face difficult mandatory campaign work and a high likelihood of failure, while party members may do as much or as little campaign work as they choose with a fairly strong chance of winning their primary (on average facing less than 2 other contestants). Since 1990, only 16 unaffiliated candidates have appeared on the general election ballot.

As briefly mentioned above, when an unaffiliated seeks office they are not deemed an official candidate until the signatures have been collected. While party primary contestants are proudly campaigning as official candidates, the unaffiliated is treated both legally and culturally as an outsider who must plead for recognition and validation to thousands of people in order to move from the status of “prospective candidate” to the real thing. The unaffiliated must jump through nearly impossible hoops to be legitimized whereas someone who is a party member is automatically entitled to the dignity and respect of being a candidate. It is much easier to ask for donations when you are an official candidate, and it is much easier to ask for peoples’ votes than it is to ask for their signature.

The inequity becomes even more pronounced when one looks at the way the rules for running as an unaffiliated are communicated (or not communicated). If you are interested in running as an unaffiliated you will find even basic rules are not well explained within the NC statutes or the State Board of Elections website.

For example, “Who can sign a petition?” is a fundamental question that should be plainly spelled out in the statutes and within the “How to” guide provided by the SBOE, but it is not. Those interested in running as an unaffiliated are instructed by the SBOE to first submit a petition request form. This request form will provide basic information about the number of signatures required for a particular contest and the due dates for those signatures. Both of these pieces of information could and should be readily and easily ascertainable without submitting any sort of form.

Worse still, it is not made clear that by asking for a petition request form the inquiring citizen is then formally entering the electoral process and will have an “in-progress” petition. This type of unnecessarily complex, vague, and tricky communication serves to further heighten reluctance about running as an unaffiliated.

There are several ways and varying degrees to which this injustice can be addressed. The most fundamental solution is to stop asking citizens to pick a party affiliation when we register, then hold nonpartisan elections whereby every candidate must collect a certain number of signatures in order to earn their place on the ballot. When surveyed, 100% of NC voters, across party lines, agreed or strongly agreed that, “All candidates should play by the same set of rules regardless of their political affiliation.” Political parties of course have a First Amendment right to exist, but they do not have any right to exist within the mechanism of government.

Requiring people to choose a party affiliation when we register to vote artificially inflates the level of division in our government and society. People would be less inclined to identify with parties if they weren’t required to choose an affiliation. As it is today, political party identification is largely forced on voters, not sought out.

For example, in NC there are over 2 million voters registered as Republicans, but according to the NC GOP, there are only 47,000 names on their email list (to be fair, the NC Democratic Party did not respond to my request for their email list data). So, roughly only 2% of registered Republicans have made the slightest effort to be involved with the party to any degree above and beyond the required political affiliation selection that occurs when registering to vote. I would bet the numbers for the Democrats are similar.

Another step in the right direction and one that would be less disruptive to the status quo would be to simply hold a primary for unaffiliateds in the same manner as we do for parties. The primaries are taxpayer funded; yet prospective unaffiliated candidates receive no benefit from them.

To be clear, the big picture goal is not to create more political parties, but rather to create a nonpartisan system by removing political party labels from the mechanism of government. This could be accomplished most fundamentally by removing the party affiliation question from the voter registration form, and by removing party labels from the ballot. Like-minded people will naturally tend to form groups, and political parties are as American as the 1st Amendment and apple pie, but political parties do not have any constitutional right to exist within the mechanism of government.

All constitutionally qualified candidates should play by the same set of rules.

*The number of petitions and the signature collection success rate are critical for accessing the “difficulty gap” between winning a primary and collecting enough signatures, but unfortunately they are impossible to ascertain with 100% accuracy. Unlike primary election data, which the state maintains indefinitely, unaffiliated petition data is not maintained for any length of time. Additionally, when gathering petitions for elections that involve multiple counties the state board of elections maintains those petitions, but for single county districts (of which there are many) the local county board of elections maintains them, so petitions are spread all across the state and can theoretically be destroyed essentially as soon as the election is over. During my first effort at pursuing this data, the SBOE sent a list which they believed contained all the petitions (both single and multi-county) over the last five years; however when I compared their data to the election results I realized the information they sent was not entirely complete because their records indicated only five successful signature collection efforts when there were in fact six during the five year time frame supposedly covered by their list. I notified the SBOE of the error/missing information, and they responded promptly recognizing my point and telling me they would get back to me. Several weeks later the SBOE responded with what I’m told are every record of a petition in their possession. Unfortunately, the process is not standardized, and the list contains many examples of petitions with just a name but no information clarifying to which race it applies. And even if I were to make the effort of contacting each county individually, given that they are not required to maintain the data, I would still not get a 100% accurate answer. Despite this frustrating shortcoming, using the available information over the last five years (or three election cycles), I feel comfortable saying the success rate for signature collection is approximately 10%. It could be lower, but it is clearly less than the 39% success rate for primary contestants.

*All other voting statistics listed in this paper were drawn from more reliable elements of the SBOE data archives.

*Surveys of 50 registered unaffiliated voters were done using SurveyMonkey.

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