On November 8, the Montana Green Party filed this 19-page brief in Montana Green Party v Stapleton, 6:18cv-87. The issues are two aspects of the petition procedure for new parties: (1) the March 15 deadline is too early; (2) the distribution requirement violates one person, one vote.
Courts have been unanimous (except for one peculiar Utah decision from 1972) that distribution requirements for statewide petitions are unconstitutional, if the distribution requirement gives the voters of some geographical areas more power than it gives the voters of other areas. Generally an unconstitutional distribution requirement offends one person, one vote, if the number of signatures required inside each area is the same, but the population of the areas varies.
Montana’s distribution requirement, unique in the history of state ballot access laws, is the opposite. The areas have equal populations, but the required number of signatures inside each area varies widely. Montana requires signatures inside at least 34 state house districts to equal 5% of the winning candidate for Governor’s vote inside that district. That requirement varies hugely, from 55 signatures, to 150 signatures. So the voters of the districts with only 55 signatures have more power to get a party on, than the voters in the districts that require 150 signatures.
This may sound arcane, but it is firmly established in precedent, including the U.S. Supreme Court’s 1969 decision Moore v Ogilvie. Thanks to Jim Riley for news that this brief had been filed.
ALWAYS unequal number of Electors/Voters in different areas
— due to folks passing away, new 18, move ins/outs.
Too many really STUPID judges — due to too many really STUPID so-called lawyers
— all going to lots of really STUPID so-called law skooools.
If your analysis is correct, then Evenwel v Abbott was wrongly decided. If it requires more voters in some equal-population areas to demonstrate popular support for a new party, than in others, then it requires more voters in those areas to actually elect a representative than others.
In 2016 in California, the assembly district with the largest number of presidential votes had 189% more votes than the assembly district with the fewest number. This is not quite a 3 to 1 ratio.
There is nothing wrong with measuring modicum of support among voters, so long as we are willing to accept equal population districts as not violating a principle of one voter, one vote. It is a more reliable indicator of actual voters, than registered voters – since that includes non-voters and persons who have moved.
But Montana does not use the number of votes cast for governot, but rather the number of votes cast for the winning candidate. If the race was lopsided, the requirements will increase; if there was a viable 3rd party or indepndent candidate, the requirement would drop. The percentage for the statewide test is 5%. If that were the actual value, used the requirement statewide would be about 12,500. But instead it is capped at 5,000.
Montana statute could tell the SOS to take the number of votes for the winning candidate, multiply by 5%, and write the product on a sheet of paper. Then fold the sheet of paper into a paper airplane and throw it out the window. Take a new sheer of paper and write “5000” on it, and circle it. This is the final answer.
Montana also uses a 5% value for the district distribution requirement, but sets a cap of 150. This cap just takes effect in a small number of districts. The requirement is calculated, but it is uncommon for it to be tossed out the window. It is quite arbitrary and capricious to use the number of votes cast for the statewide candidate, for calculating the number of signatures in a district.
Q. Why do we need so many signatures for this district out on the plains?
A. Because we have a Republican governor.
Q. Uh … Steve Bullock is a Democrat.
A. Oh! You’re right! (Calculating) You only need half as many.
And the opposite dialogue would happen in the cities where Democratic votes concentrate, But if Bullock had lost, or the presidential results used, the distribution requirements would be entirely different. Bullock only won by 4%. Montana has alternated party control of the governorship every 16 to 20 years since Eisenhower was president.
The pool of potential signers is not Democrat-leaning voters or Republic-leaning voters but all voters. If Montana were to use total votes cast, and reduced the percentage to 2%, it would at least not be arbitrary and capricious.
But there would still be the (mal)distribution requirement caused by the inconsitent caps.
Imagine if the Diversity Party set out to represent the interests of all Montanans – miners, ranchers, tourist industry, Earth First ecofreaks, loggers, university academics, oil field workers, business owners, Native Americans, and lawyers, even Anoconda. They recruit 100 house candidates across the state and have each collect 50 signatures from their neighbors. They would have collected 5000 signatures across the state but not met the maldistribution requirement in ANY district.
In fact, the Green Party collected 7300 verified signatures, 46% more than the statewide requirement, and failed the maldistribution test, and this despite the fact that they gathered zero signatures in 53 districts (more than half the state).
So, now the SOS should take the sheet of paper that had “5000” on it, write LOL on it, cross out the “5000”, wad up the paper and throw it in trash, and on a 3rd sheet write “8000 signatures, concentrated in 40 districts.”
Montana’s population distribution makes it impractical to collect signatures statewide. In a larger county, a small team of circulators (let’s say 10) could spend a couple of weeks and collect enough signatures for a half dozen to dozen house districts. In a smaller county you might be able to have one circulator do the same for one district – but perhaps not, because the circulator might have to move around. They could capture Walmart shoppers on Thursday, and post office or library patrons on Wednesday. Meanwhile in a larger county a circulator could go the Walmart or post office, etc., for several days.
In rural districts it would be even more difficult, as the circulator might have travel from county to county.
The Green Party did concentrate their effort on just a few counties. Montana does not require signatures to be collected by districts, but does require collection by county. When verifying signatures, election officials determine how many are from each house district. The signer probably has no idea of their house district number. They might know the name of their representative, at least think they do. The person they named retired 4 years ago, or is a state senator, or is from a neighboring district who is always being quoted in the newspaper. Invariably their would be a district or two in a county that had relatively few signatures. This was because the district extended into neighboring counties, and no attempt was made to collect signatures from those areas.
When collecting signatures, one always has to collect more signatures than are needed, because some signers will not be registered, or will scribble the wrong address, or have some other fault, such as being a duplicate. The Green Party collected over 10,000 raw signatures, with 7300 verified.
If you estimate that one in three signatures will be invalid, you would be foolish to collect only 50% extra, because you will fail half the time to have enough valid signatures. This is elementary statistics.
If you assume a random sample of signers, you need to collect 50 valid signatures you should collect 91 raw signatures to be 99% chance that 50 will be valid. That is, 82% extra.
If you need 100 valid signatures, you would need 172 raw signatures to be 99% certain that 100 will be valid. That is 72% extra.
If you need 150 valid signatures, you would need 251 raw signatures, 67% extra.
If you need 5000 signatures, you would need 7644 raw signatures, 53% extra.
The Green Party petition would either be successful or fail in each district. If they get 98% in one district, and 102% in an adjacent district, you can’t transfer the excess to the other district.
And the above assumes random samples of signers. If you decide to collect 250 signatures from each of 10 districts in Missoula, can you simply collect 2500 signatures? NO! You won’t get 250 signatures from every district, even if Missoulans randomly decided to go to the location where signatures were being collected. In addition, there will be systemic differences among the district. There will be variation based on economic status, education level, and ethnicity. Citizens in wealthier, whiter districts, are more likely to be ragistered to vote, and perhaps the leisure time to stop and sign a petition. A mother working split shifts as a waitress, whule shuttling children from school to home or day care with a trip to the store for food may not have time to sign a petition.
In fact the Green Party originally was judged to have enough signatures from 38 districts, but by knocking off a handful of signatures in just a few districts, this was reduced to 30 districts, four short of the 34 needed.
The Green Party was wise to completely ignore half the state. Their mistake was collecting signatures in 13 districts that did not help them meet the maldistribution requirement.