As previously reported, the Montana Green Party has been kept off the ballot in both 2018 and 2020, even though both years, the Secretary of State said the party petition had enough valid signatures and conducted a primary for the party. The party was removed both times after activism by Democrats. In 2018 the Democrats persuaded a state court that the party petition lacked enough valid signatures, contrary to the Secretary of State’s finding. In 2020, the party petition was not challenged, but Democrats got a list of the signers and persuaded about 600 of them to retract their signatures. Thus the petition was nullified, six months after it had been validated.

The Green Party filed a federal lawsuit in 2018 against the unequal distribution requirement. The law requires signatures from 34 of the 100 state house districts. Instead of requiring an equal number of signatures in these equal-population districts, the law irrationally requires as few as 55 signatures in some districts, but up to 150 in others. This violates a U.S. Supreme Court precedent, Moore v Ogilvie. Nevertheless, on March 20, 2020, a U.S. District Court upheld the unequal distribution requirement. That case is Montana Green Party v Stapleton, now pending in the Ninth Circuit, 20-35340. The briefs in that case will all be submitted by November 13, 2020, and a decision is likely in 2021.

There was also a federal case involving the 2020 events, Davis v Stapleton. That was filed by some Green Party nominees for congress and state office in August 2020, charging that it violates the rights of the party’s nominees, and also the rights of the 13,000 voters who signed the petition and who did not retract their signatures, to remove a party because some of the signers recanted. That case failed to get injunctive relief from all three levels of federal court, and the Green Party nominees voluntarily dismissed that case on September 15, 2020. In the U.S. Supreme Court, the party had requested relief from Justice Elena Kagan on September 11, but she had denied it on September 14 without asking for a response from the other side and without asking the other justices.

If the 2020 Green Party nominees had not dismissed their case, the Ninth Circuit would have eventually ruled on the constitutional due process issue. This had been a case of first impression. In all history, in all states, there had never before been an incident in which people who signed a petition to get a party on the ballot were permitted to remove their names months later, thus cancelling the party’s legal existence. We will get a decision on this point from the Montana Supreme Court, however. That court denied injunctive relief on August 19, 2020, and said it would explain its reasoning “in due course.” That opinion still hasn’t emerged.