The state Court of Appeals on Tuesday upheld a state law that forces third political parties to collect tens of thousands of signatures to get on North Carolina's ballot, but the court's split decision means the case will likely be heard again.

Two of the three judges who heard the case filed by the Libertarian and Green parties and their candidates supported the law. But a third judge said North Carolina's rules are unconstitutional and place the groups under overly burdensome restrictions.

The law also says a party must start the petition process over if neither its candidate for governor nor president fails to receive 2 percent of the vote.

The 2-1 ruling means the state Supreme Court automatically would have to consider the issue if party leaders file an appeal.

Despite being on the losing end, "the split decision is encouraging," said Barbara Howe, the state Libertarian Party's chairwoman. "I see no reason not to go forward" and appeal the decision, she added.

The Libertarian Party of North Carolina sued in 2005, saying the threshold to become officially recognized by the state as a political party is one of the highest in the country and puts a restriction on its members' rights to freedom of speech, association and due process. The Green Party of North Carolina later joined the lawsuit.

"We're doing this for the people of North Carolina so they can have more choices on the ballot," Howe said.

The Libertarian Party was required to collect nearly 70,000 signatures to get its candidates on the ballot in 2008, spending as much as $140,000 in part to pay signature collectors, Howe said. A candidate for president or governor had to receive 10 percent of the vote for the party to remain on the ballot until the threshold was reduced to 2 percent in 2006.

Libertarian gubernatorial candidate Mike Munger received almost 3 percent of the vote in 2008, so the party doesn't have to go though the petition process to stay on ballots through 2012.

But the Green Party has yet to surpass the petition threshold, which will increase to more than 85,000 signatures for 2012.

A trial court judge last year upheld the ballot access laws because the "state has a compelling interest in requiring a preliminary modicum of support before recognizing a political party and placing its candidates on the ballot."

Court of Appeals Judge Chief Judge John Martin, writing the majority opinion, said he and Judge Sanford Steelman disagreed with the smaller parties' contention that the state's 2 percent requirement is not narrowly tailored to meet that interest.
That interest, according to Martin in citing other federal court cases, could be to prevent a confusing or an overcrowded ballot that frustrates the democratic process.

While acknowledging the case burdens the rights of party members to associate and voters to learn about the party, Martin wrote that the party gets 3 1/2 years to collect the signatures. The Libertarian Party has surpassed the signature requirement for all but one presidential election since 1976.

Judge Ann Marie Calabria dissented, calling the petition an "onerous process" that harmed "fundamental rights" to vote for the candidate of one's choice and for citizens to run for office.

Similar state laws that set requirements for unaffiliated and write-in candidates to get on a local or statewide ballot "demonstrate that the state could regulate ballot access for political parties in a less restrictive way while still allowing the State to uphold its compelling interest."

The state's lawyers had argued that there's no fundamental right for the party of a voter's choice to be on the ballot.

Attorneys for the state were reviewing Tuesday's opinions, a spokeswoman for Attorney General Roy Cooper said.