On July 12, Montana’s Attorney General submitted this 72-page brief in Kelly v McCulloch, 10-35174, the ballot access case pending in the 9th circuit.  The case had been filed in U.S. District Court in 2008 on behalf of an independent candidate for the U.S. Senate, Steve Kelly.  The U.S. District Court had ruled earlier this year that Kelly lacks standing.

The chief complaint against Montana is that in 2007, the Montana legislature moved the petition deadline for non-presidential independent candidates from June to March.  The case also challenges the number of signatures, 5% of the winning candidate’s vote for that office in the last election.  No statewide independent candidates have qualified for office (other than President) in Montana since 1994, when Kelly himself qualified as an independent candidate for U.S. House-at-large.  Independent presidential candidate require fewer than half the number of signatures that are required for non-presidential independents, and also independent presidential candidates have a deadline that is five months later.

The U.S. Supreme Court has ruled three times that independent or minor party candidates have standing to challenge ballot access restrictions, even if that minor party or independent candidate submits no signatures.  Those three cases involved the Socialist Labor Party in Ohio in 1968, independent presidential candidate Eugene McCarthy in Texas in 1976, and independent presidential candidate Gus Hall in California in 1972.  Also, the 9th circuit in Erum v Cayetano in 1988 said that even a voter has standing to challenge a ballot access law, and Kelly’s case has a voter co-plaintiff.  Despite these precedents, the state labors at great length to persuade the 9th circuit that Kelly lacks standing because he didn’t submit any signatures, nor pay the filing fee, nor publicly announce his candidacy before filing the lawsuit on April 8.

The state also repeatedly emphasizes that Montana has had many minor party candidates on the ballot during the last 121 years.  However, this is not surprising, because Montana required no petition whatsoever for minor parties from the start of government-printed ballots in 1889, until 1969.  And even today, Montana requires fewer than half as many signatures for minor parties as for non-presidential statewide independent candidates.  In any event, the U.S. Supreme Court said in Storer v Brown in 1974 that states must have constitutional ballot access procedures for independent candidates, separate from ballot access procedures for new or previously unqualified parties.