On November 29, the Montana Secretary of State filed this response brief in Montana Green Party v Stapleton, 6:18cv-87. Like the state’s opening brief, the new brief does not mention any election law precedents. The issues in the case are the unequal distribution requirement for the party petition, and the early deadline. There are dozens of precedents on both these issues, but the state doesn’t discuss any of them.
MT — one more post Civil War I State which should still be a USA Territory.
IE – govt lawyers with ZERO brains – esp about SCOTUS ops.
The unequal distribution requirement argument is weak. Because of the SCOTUS decision in ‘Evenwal v. Abbott’, it is not unconstitutional to have legislative districts of equal population but with differing numbers of voters. Thus it requires different numbers of voters to elect legislators. It should not be a problem having different numbers of voters to demonstrate a modicum of support in each district. It would certainly be constitutional to base the number of signatures in a district for an independent candidate on the number of active voters in the district, even if the districts are supposedly for a OMOV body.
But Montana does not base its number of signatures on the number of active voters in a district, but rather on the number of votes for the winning statewide candidate in the district. The 2016 gubernatorial election was quite close, not quite into recount territory, but close. Fewer than half of Montana voters in 2016 voted for the statewide winner Steve Bullock.
But Bullock’s support varied wildly from district to district, even between adjacent districts. In HD-4 in Flathead County, a petition would require 90 signatures. But if Greg Gianforte were now governor, 150 signatures would be needed in that district. Meanwhile, in adjacent HD-5, 150 signatures are needed. But if Gianforte were governor, the requirement would drop to 118. These are adjacent districts within a single county. Statewide the disparities are even greater.
This is so arbitrary and capricious that no official with a modicum (lick) of common sense, could defend it. I can see a Secretary of State like Linda McCulloch trying to explain the logic behind it, but Cory Stapleton is more intelligent and should order his attorneys to stop defending this provision of Montana statute. Stapleton and Attorney General Tim Cox have sworn to uphold the US Constitution, they can not do that and defend this law.
Stapleton should agree to a statewide requirement of 1% of the ballots cast in the last gubernatorial election. This would be 5170 signatures. The state now has nominally 2.5% of the statewide electorate
as a requirement, since a winning gubernatorial candidate will presumably receive 50% of the vote. But by capping that at 5000, is admitting that 12,923 is a ridiculous number.
The current procedure is fully equivalent to calculating the number of signatures on a sheet of paper, folding it into a paper airplane and launching it out the window – and then taking a clean sheet and writing 5000 on it.
Montana’s distribution requirement is inverted.
The purpose of a distribution requirement is to ensure that support for a party is not extremely concentrated.
In Montana, the law in effect requires support to be concentrated. The Green Party had 45% more verified statewide signatures than required, despite not collecting ANY signatures in more than half the state’s house districts. Montana is not saying that the party should have collected signatures in additional areas, but rather piled up more signatures in areas where they already collected them.
If the Montana Equanamity Party collected 50 signatures in every district in the state, they would meet the statewide requirement, but not have met the district standard in even one district. The main reason for this inversion is that the caps work differently. The statewide cap of 5000 is much less than the requirement of 5%, but the district cap of 150 is typically higher than the 5% for the district.
If Montana were to adopt a statewide requirement of 1% of the total gubernatorial vote, it would be reasonable to require 1% in a reasonable number of districts, say 1/3 of districts. The median threshold for a district would be 52. If a party set out to gather the minimum number of signatures, in the minimum number of districts, they would fail the statewide requirement miserably. A distribution requirement simply ensures some breadth of effort.
Montana House districts are quite small, with around 10,000 persons per district. This makes distribution requirements more challenging.
Imagine that there is 2/3 chance of a signature being valid (some signers will not be registered, there may
some duplicates, some may sign with a name or address that is illegible, or does not match registration records. If there were a requirement of 100 signatures, then a naive assumption would be that if 150 raw signatures were collected, then 2/3, or 100 would be valid. But, this would be true only half the time. To be 99% sure, you should collect 173 signatures. If you fall one signature short it is a failure. If there were two districts side-by-side that together form a senate district you should collect 175 signatures from each, a total of 350, enough to 99% sure that you will have enough verified signatures in both districts.
If the goal were to collect 200 signatures in the senate district you would only need 331 signatures to be sure to collect enough signature, 19 fewer than if you were trying to get 100 signatrures in both halves of the district.
It is not equally easy to gather signatures in all districts. One could have a team of circulators in Cascade (Great Falls), Missoula(Missoula), or Yellowstone(Billings) who could go to the Walmart, court house, post office, or other gathering places and collect signatures for 8, 11, or 13 districts, respectively at a time. A circulator does not need a separate sheet for each district, but only for the county. The county election officials will sort the signatures by district. On a single sheet there might 6 signatures from one district, seven from another, etc.
But there would always be a district with much fewer signatures. This would be a district that was only partially in a county. To get enough signatures in such a district might require a separate effort in another county.
Flathead and Gallatin counties have large populations, but it is not as concentrasted in Kalispell and Bozeman as other counties. Qualifying in these counties is more difficult.
Montana has many small counties. 12 of the 56 have fewer than 2000 persons. Collecting in these counties would be near impossible. Even if a circulator went door to door, it would be miles down country roads between ranches or farms, and then finding the resident who might out taking hay to the cattle, or mending fence, or welding in the barn.
Collecting in Havre in February may involve making sure not only that the petition sheets don’t blow away, but also the clipboard, the circulator’s hat and gloves, even the circulator themselves, while dodging frozen cattle blowing in from Alberta.