On August 27, Patty Lovaas filed a federal lawsuit, challenging Montana’s March petition deadline for non-presidential independent candidates. The case is Lovaas v Johnson, Missoula, 9:08-cv-127. The case was assigned to Judge Donald Molloy, a Clinton appointee. Lovaas is an independent candidate for U.S. Senate from Montana.
The U.S. District Court in Butte has been asked to set a hearing date to consider injunctive relief against that deadline, on behalf of another independent candidate for U.S. Senate, Steve Kelly. That case, Kelly v Johnson, was filed in April 2008.
The story failed to mentioned that she had run in the Republican primary and lost to socialist Bob Kelleher.
State law says that a person can’t simply jump back into the race as an independent after running in the primary. Write-ins are possible.Lovaas did file before the deadline to run for the U.S. Senate and paid the nearly 1,700 filing fee. Lovaas has a problem with Kelleher , which she says isn’t Republican enough. But out of six primary candidates republican voters picked Kelleher, who finished some 10,000 votes ahead of the 2nd place candidate. Kelleher now faces the head of the Senate Finance committee Max Baucus. Lovaas will lose this case. Kelly would probably lose his case as well because he hadn’t collected any signatures and he waited until after the primary to decide to run, when Kelleher got the nomination. Kelleher’s last run for the Senate was in 2002 as a Green party candidate.
I expect Kelly to win his lawsuit. No court has ever upheld a petition deadline as early as March for independent candidates, except that the 6th circuit upheld Ohio’s March deadline because Ohio holds its primary for all office (not just president) in March. But Montana’s primary is in June.
States in which courts have said some independent or minor party petition deadline are too early include Alabama, Alaska, Arizona, Arkansas, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Missouri, Montana (a state court in 1990), Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Utah. This is one area of the law in which the precedents are quite good.
For independent Presidential candidates, the last date to turn in signature was August 20. With Montana having 4 major parties on the ballot, would that make a difference on the issue of hardship that Kelly is fighting? Kelly has run both as a Republican and Democratic candidate.
If the voters are supposed to choose their US representatives and senators in November, how can any procedure that restricts the persons from whom they may choose on November 4, 2008 be constitutional?
This would include any party selection or nomination procedure, early filing deadline, and anything more than nominal petition requirements.