On November 2, a U.S. District Court Judge in Montana ordered both sides to submit briefs in Kelly v Johnson, the case over Montana’s March petition deadline for non-presidential independent candidates. Both sides will file simultaneously, on November 25. Then, each side will respond to the other side’s brief on December 9.
This case had been filed in 2008 by Steve Kelly, an independent candidate for U.S. Senate. In 2007 the Montana legislature had moved the petition deadline for non-presidential independent candidates from June to March. The Montana primary is in June. The U.S. District Court had ruled on February 3, 2010, that plaintiffs lack standing, but the 9th circuit had reversed that conclusion on December 10, 2010, and sent the case back to U.S. District Court for a ruling on the merits.
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In the cases involving term limits, the Federal Courts have essentially ruled that “federal law trumps state law”. The Montana Constitution, Article IV, Section 8, still has the term limit provision which applies to election of US Senators and Representatives. The Federal ruling, a political decision given the color of law, expanded the concept that the Montana Constitution did not comply with the Federal Constitution. The Federal Constitution says nothing about term limits. The Tenth Amendment reserved the right to the States to develop election procedures. Assuming reserved States rights prevail, the primary deadline issue should have been conducted in the Montana Courts where Mr. Kelly would have had standing. The reversal ruling in the 9th District Federal Court reflects the contradiction raised by the State vs Federal sovereignty issue. If Montana can’t determine term limits for Senators and Representatives, then consistency would hold that Montana’s Legislature can’t determine deadlines for US Representative primary elections. Montana should have right to determine how representatives are elected.
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A petition deadline in March is horrible, particularly in a cold weather state like Montana. Anyone legilator who supports this deadline ought to be forced to sit outside in the cold while doing their job. If they had to do this I’d be willing to bet that they’d push the deadline to a warmer weather month really fast.