On November 8, the Ninth Circuit issued an opinion in Montana Green Party v Jacobsen, 20-35340. It struck down the unequal distribution requirement that has existed for Montana petitions for new party recognition ever since 1981. The unequal distribution requirement was responsible for the Green Party’s petition failure in both 2018 and 2020. It requires signatures from one-third of the State House districts. The fatal flaw is that it requires almost three times as many signatures from some districts as from others, even though all districts are approximately equal in population.

The decision says, “The State has provided no reason, much less a compelling reason, for requiring far more signatures in some equal-population districts than in others.”

The decision upholds the March petition deadline for new party petitions that had existed in 2018 and 2020, but it would have been surprising if the decision had struck down that deadline, because the Montana Green Party complied with the March deadline in both 2018 and 2020. Thus there was no evidence that the early deadline injured the party. Another case from any state in the Ninth Circuit against such a similar deadline might win someday, if the plaintiff-party fails to meet the deadline and presents evidence about how the deadline injured it. The decision is by Judge William Fletcher, a Clinton appointee; it is also signed by Judge Michelle Friedland, an Obama appointee; and Judge Frederic Block, a Clinton appointee. The lower court had upheld the distribution requirement.

The decision erroneously seems to say that the new deadline of February 4, created this year, is also constitutional. It says that an earlier deadline was upheld in 2016 in Arizona Green Party v Reagan, 838 F.3d 983, but actually in that case the upheld deadline was February 27, 2014, whereas the 2022 Montana deadline (under the new law passed this year) will be February 4. Also the only reason the Ninth Circuit upheld the Arizona deadline was that the Green Party did not submit any evidence that the early deadline injured it. Furthermore the weather is very different in winter in Montana compared to Arizona. The decision also seems to have a typographical error concerning the deadline law. On page sixteen it correctly says the deadline is 123 days before the primary, but on page sixteen it says the Montana deadline is 128 days before the primary. The Montana primary is the first Tuesday after the first Wednesday in June.

Other states with unequal distribution requirements for candidate or party petitions are Arizona and Iowa. Neither state’s distribution requirement has ever been challenged in court; they are both new.