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Challenging Big Money through the Courts
The State Constitutional Approach
The North Carolina state constitution, initially drafted
in 1776, is suffused with articulation and emphasis of the most basic
of our founding revolutionary rights: the right to self-government by
the People. Further, this right of self-government was expressly given
to the whole people regardless of wealth.
Article I, section 1 acknowledges that it's self-evident
that all persons are created equal and endowed with certain "inalienable"
rights; "that among these are life, liberty, the enjoyment of the
fruits of their own labor, and the pursuit of happiness."
Then in section 2 as boldly and clearly as it
can be stated, the core principle of democratic self-government is set-forth:
"Sovereignty of the people. All political power is vested in and
derived from the people; all government of right originates from the people,
is founded upon their will only, and is instituted solely for the good
of the whole."
Section 3 clears up any doubt as to who is in
charge: "Internal governance of the State. The people of this state
have the inherent, sole, and exclusive right of regulating the internal
governance and police thereof; and of altering or abolishing their Constitution
and form of government whenever it may be necessary to their safety and
happiness; but every such right shall be exercised in pursuance of law
and consistently with the Constitution of the United States."
Section 10 says: "Free elections. All elections
shall be free."
Section 19 says "...No person shall be denied
equal protection of the laws."
The North Carolina Constitution contains no provision that would even suggest that the term "the people" should be limited to those who possess wealth or property. In fact, taken as a whole the North Carolina Constitution guarantees the fundamental principles of political equality and the essential dignity of all persons, requiring that the State ensure each citizen's right to an equal and meaningful opportunity to participate in self-government.
State Action: The Wealth Primary
Lawyer John Bonifaz, from the National
Voting Rights Institute (NVRI) based in Boston, was one of the pioneers
in developing the concept of the "wealth primary" to answer
that question. The wealth primary is that critical stage of the electoral
process in which candidates must raise and spend substantial sums of money
in order to mount viable campaigns for office. It is, as Bonifaz put it:
"that exclusionary process leading up to every party primary and
every general election, in which those with money or access to money,
by means of their campaign contributions, choose the candidates who almost
invariably go on to govern. Those who do not raise enough money -
that is those who lose the wealth primary - almost always do not win office."
Research has established that in NC legislative races,
the candidates who raise and spend the most money almost invariably win.
This campaign finance system is an integral part of the electoral machinery
employed, sanctioned, and ratified by the North Carolina Board of Elections.
The winners of the wealth primary are declared the official winners by
the Board of Elections.
The General Assembly does provide a form of public financing
for select political parties by allowing taxpayers to direct money
from their tax payments to go to such parties. The General Assembly also
provides for public financing for candidates for select statewide offices.
No such public financing is available to campaigns for the General Assembly.
The State of North Carolina has made a decision to delegate the responsibility
for funding public elections for the General Assembly entirely to private
entities through the wealth primary.
In the wealth primary, the State of North Carolina and
the North Carolina Board of Elections have established and sanctioned
a de facto electoral requirement that candidates for state office amass
large sums of money in order to meaningfully participate in public elections.
The average spending by winning candidates with
opposition for the primary and general election in 1998 was $56,322 for
the House and $113,518 for the Senate. This requirement is a barrier to
the majority of citizens who do not possess or have access to wealth.
The non-wealthy are denied a meaningful chance to even get on the ballot.
Likewise, the non-wealthy who cannot financially support a candidate at
the level to win the wealth primary are denied a candidate who will voice
their interests. The non-wealthy - the vast majority of citizens - are
denied the equal and meaningful opportunity to seek representation of
their interests in the General Assembly. This denial violates equal protection
and the most fundamental right of the people as a whole to self-government.
The majority of people cannot pay the admission price
to what is labeled democratic self-rule.
1. it violates Equal Protection;
The relief requested is to declare the wealth
primary unconstitutional and require the state and the Board of Elections
to provide adequate public financing that will allow qualified citizens
to compete meaningfully for the General Assembly, regardless of their
economic status or personal association. No monetary damages are requested.
Lewis Pitts is Director of the Mental Health Unit of Legal Services of North Carolina in Raleigh and represents a low-income voter in the lawsuit. The opinions expressed in this article are his and not necessarily those of Legal Services of NC.
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