Montana State Senator Greg Hertz (R-Polson) has introduced SB 565, which drastically curtails ballot access for minor parties and independents. On April 3 it passed the Senate State Administration Committee and then passed on second reading in the State Senate. UPDATE: on April 4 it passed the State Senate on third reading, 26-24.

It raises the number of signatures for a newly-qualifying party from 5,000 signatures, to 5% of the current number of registered voters. The number for 2024 could not be known while the petition was circulating, but a year ago, Montana had 743,710 registered voters, so in 2022 the requirement would have been 37,186 signatures.

The bill makes the definition of a qualified party more restrictive. It raises the vote test from 5% of the winner’s vote for Governor, to 5% of the number of registered voters. Because the bill takes effect immediately after it has passed, it would remove the Libertarian Party from the ballot before the 2024 election. The Libertarian Party’s highest vote in 2020 was 31,267 votes, and in 2018 its highest vote total was 28,760. There were no statewide races up in 2022 so the vote test doesn’t apply to any parties in 2022.

The bill also raises the independent presidential petition from 5,000 signatures to 5% of the number of registered voters. It raises the number of signatures for a non-presidential independent candidate from 5% of the winner’s vote for that office to 5% of the number of registered voters.

It imposes a $15 “signature-gathering fee” on any of these petitions, which must be paid before the petition begins to circulate.

Whether the Green Party is still on the ballot in Montana is not settled. It was on the ballot in 2022. It couldn’t meet the vote test in 2022 because there was no statewide race up in 2022, so it is reasonable to assume that it is still on the ballot. But the Secretary of State has been refusing to issue an opinion on that all this year.

There are many precedents that it violates due process for a state to stiffen the definition of a qualified party, without giving a ballot-qualified party a future election in which to try to surmount the new requirement. That alone makes part of SB 565 unconstitutional. If the bill passes, it seems likely the Libertarian Party would sue.

The bill also violates due process by setting the number of signatures as a moving target, while the petition is circulating. Generally due process requires that a petitioning group be told how many signatures it needs, before it starts. A U.S. District Court in Nevada once invalidated a Nevada initiative law because the initiative backers could not know while they were petitioning, how many signatures they needed.

The bill retains the distribution requirement for petitions to qualify a new party, making it 5% of the number of registered voters in each of one-third of the 100 state house districts. It removes the cap of 150 signatures. Thanks to Fairvote for news about the bill.