The February 22 issue of the Billings Gazette has this brief story about the pending Montana ballot access case, Kelly v McCulloch. The case challenges the March petition deadline for non-presidential independent candidates.
U.S. District Judge Sam Haddon had ruled earlier this month that the plaintiff, Steve Kelly, lacks standing, because, so the Judge said, Kelly had not made up his mind to be a candidate when he filed his lawsuit. The judge is mistaken. Kelly’s attorneys submitted a verified complaint, which means a signed statement by Kelly that his complaint is accurate. The complaint says he was an independent candidate for U.S. Senate in 2008. There is no equivocation in his complaint. The judge appears to have overlooked that document.
The newspaper story is not accurate when it says the judge found a lack of standing because Kelly’s campaign wasn’t serious enough. If the judge had said that, that would also have been an error. Three decisions of the U.S. Supreme Court, and numerous decisions of lower courts, have held that candidates do not need to have tried to comply with a ballot access law in order to have standing. Also, a 9th circuit decision, Erum v Cayetano, says even a voter has standing to challenge a state ballot access law, and the existing Montana lawsuit has a voter-plaintiff as well as a candidate-plaintiff.
The three plaintiff parties or candidates whom the U.S. Supreme Court felt had standing to challenge ballot access laws, even though they hadn’t tried to comply with the laws, are the Socialist Labor Party (which was a co-plaintiff in Williams v Rhodes), Gus Hall (who was a co-plaintiff in Storer v Brown), and Jim Lendall (in Lendall v Jernigan I, which received a summary affirmance from the U.S. Supreme Court, striking down an April petition deadline for independent candidates).
To be a serious candidate Kelly would have been collecting signatures for the position. This story doesn’t mention any organization for Kelly except that he says he was serious about filing for the petition.
The judge’s opinion says that Kelly had not decided to run for senate as an independent candidate at the time he filed the complaint, and did not make that decision until at least a week later, and references hearing testimony. It sounds like the testimony at the hearing contradicted the complaint, at least in the judge’s mind.
The judge then notes that Kelly had not taken any overt action to become an independent candidate at the time of the complaint. But he only considered that supportive of his determination that Kelly had not yet decided to run at the time he filed his complaint.
If Kelly had not decided to run, then any harm to the voter by not being able to vote for Kelly, is caused by Kelly rather than the State of Montana. I doubt that a court would decide that a voter was harmed by someone not having decided to run, even if the voter had a desire to vote for the candidate.
The judge misquoted the testimony. The transcript shows this, as the 9th circuit briefs will soon show.
Kelly knows how to petition. In 1994, he got himself on the ballot as an independent candidate for U.S. House. Back then, though, the deadline was in June, not March.
The judge only referenced the testimony by line number, he did not quote it in his opinion. I’m assuming the judge had an accurate transcript. Maybe he or a witness misunderstood a question.
Kelly has also run under a few different banners over the years I think to include both Democrat and Republican for other positions.