On February 3, U.S. District Court Judge Sam Haddon issued an opinion in Kelly v Johnson, cv-08-25, the case filed in 2008 against Montana’s ballot access laws for independent candidates for office other than President. The judge ruled that neither the candidate-plaintiff, nor the voter-plaintiff, have standing to challenge that ballot access law. The plaintiff, Steve Kelly, will appeal.

The opinion is only 7 pages. It says that because the candidate-plaintiff had not made a certain decision to run for U.S. Senate in Montana on the date he filed his complaint (April 8, 2008), therefore he lacks standing. And the voter-plaintiff lacks standing because she said she wanted to vote for Kelly, whom the judge characterized as a non-candidate. UPDATE: it turns out that the judge’s conclusion that Kelly had not decided whether to run when he filed the complaint is not factually accurate. The quotation from Kelly’s statement on the witness stand does not really say what the judge said he said. Also, Kelly’s verified complaint, under oath, says he had decided to run.

The decision cites many cases on standing, but none of them are ballot access cases. The decision does not mention the U.S. Supreme Court opinion Burdick v Takushi, in which a voter challenged Hawaii’s ban on write-in voting and never named any particular candidate he wanted to cast a write-in vote for. The decision also does not mention Erum v Cayetano, a 1989 decision of the 9th circuit in which the plaintiff challenged a ballot access law in Hawaii. Although the plaintiff in that case, Ted Erum, lost the case, the 9th circuit said he had standing. It said, “The Lieutenant Governor contends that Erum lacks standing to challenge the 10% reqirement of section 12-41 because it did not come into play to exclude him in his 1984 bid to gain access to the general election ballot. But Erum brought this action in his capacity as a registered voter of the State of Hawaii as well in his capacity as an erstwhile and potentially future candidate. Candidate eligibility requirements implicate basic constitutional rights of voters as well as those of candidates. Erum possesses standing to challenge the whole of section 12-41’s ballot access restrictions in his capacity as a registered voter.”

Montana is in the 9th circuit, so the Erum controls. The judge knew about the Erum precedent but he chose not to mention it in his opinion.

The Montana case challenges the March petition deadline for independent candidate petitions (for office other than president), and the number of signatures, 5% of the winning candidate’s vote in the last election for that office. Judge Haddon has a reputation for virtually always ruling in favor of the government in any cases before him in which an individual is challenging a government policy or a law.