Last year, the Montana Republican Party filed a lawsuit against state law that requires the party to nominate candidates for public office in an open primary. On December 14, U.S. District Court Judge Brian Morris, an Obama appointee, ruled that the lawsuit can’t be decided without more evidence. The Republican Party already provided evidence that in open primaries in other states, a certain percentage of voters who are not loyal to the Republican Party nevertheless choose to vote in Republican primaries.
The ruling, which is 37 pages long and has a comprehensive history of other lawsuits on the issue of primaries, says the case needs evidence from Montana. In order to win the case, the Montana Republican Party will now need to find evidence that votes who don’t really like the Republican Party still choose to vote in Republican primaries.
In Montana, the voter registration form doesn’t ask about party membership, and it isn’t easy for anyone on either side of this lawsuit to define what a Republican is. The state argues that if a person requests a Republican primary ballot, by definition the person is a Republican. Thanks to Rick Hasen for news about the decision.
In Montana, a voter does not request a party ballot. They are given a ballot for each party, and they choose which one to fill out in private. When Washington had the infamous Pick-A-Party primary, they would sometimes refer to it as a Montana-style ballot, even though in Washington, the party selection was done with a mark on the ballot.
The opinion from the judge spent a lot of time discussing ‘Jones’, but did not mention the follow-on litigation in Washington. Washington had argued that their blanket primary was different from that in California because they didn’t have party registration, plus the different manner of nominating minor party candidates.
But the district court and 9th Circuit concluded that voters in Washington thought of themselves as Republican or Democrat, and thus were able to cross-over as readily as they could in California where there was public record of affiliation.
If that logic were applied in Montana, then voters who think of themselves as Republican vote a Republican ballot.
Of course, the fundamental problem is partisan nomination.
http://www.kpax.com/story/30751067/montana-gop-lawsuit-to-force-closed-primary-election-is-going-to-trial
Another link with some updated information on this case.