The mainstream media in Montana still haven’t mentioned the court order from yesterday evening that radically shrunk the ballot access barrier in the upcoming special congressional election.
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On April 8, a few minutes before midnight, U.S. District Court Judge Brian Morris issued an order in Breck v Stapleton, 9:17cv-36. The order says it is almost certainly unconstitutional for Montana to require 14,268 signatures for independent candidates, and the nominees of unqualified parties, to get on the ballot in the upcoming special election for U.S. House.
The order replaces 14,268 with 400, for this election only. The order does not say when the 400 signatures must be obtained. Because the ballots have been printed in some counties, and are about to be printed in other counties, it is likely that the 400 signatures must be collected in the next few days in order for any of the three plaintiff candidates to get on the ballot.
The order seems to rebut the state’s argument that the candidates should have started collecting signatures as soon as it was announced that President Trump had nominated Congressman Ryan Zinke to be in the cabinet. The order says, “The State could point to no court decision, however, that suggested putative candidates should start collecting signatures based on the mere possibility of an election.” Obviously there is no vacancy until a member of Congress resigns, and of course Congressman Zinke did not resign his seat until after the U.S. Senate had confirmed him.
The Ohio State Court of Appeals will hear Libertarian Party of Ohio v Husted on Tuesday, May 9, at 9 a.m. This case is over whether the 2013 ballot access law violates the State Constitution. The State Constitution appears to require that all qualified parties nominate by primary. But the 2013 ballot access law says newly-qualifying parties should nominate by convention, and then each convention nominee must submit his or her own small ballot access petition.
This case was filed January 19, 2016, and has moved very slowly. Before the 2016 election, the trial court had ruled that the law comports with the State Constitution. The briefs were filed in the State Court of Appeals months ago. The Ohio Constitution says, “Article V, sec. 7. All nominations for elective state, district, county and municipal office shall be made at direct primary elections or by petition as provided by law.” Past rulings of state courts in Ohio have made it obvious that “by petition” refers to independent candidates. If it is true that the legislature is free to provide that new parties may avoid a primary, then it seems obvious that the legislature could extend that exemption to all parties, new and old alike. But that would completely nullify any reason to even have that provision in the State Constitution. That Constitutional provision was passed over 100 years ago, and seems to have been passed to make it certain that the major parties could only nominate by primary.
Ohio is the only state with a State Constitutional provision that requires all parties to nominate by primary. Oklahoma’s Constitution gives the legislature authority to provide primaries for all parties if the legislature desires, but the Oklahoma Constitution does not compel the legislature to do that.
It is conceivable that the Ohio Supreme Court’s lengthy delay in ruling on reconsideration in the other Libertarian Party lawsuit is indirectly connected to this lawsuit.
New Hampshire State Senator Scott McGilvray, a Democrat, died on March 21. A special election will be held in either June or July to fill the vacant seat, which includes part of Manchester. Filing closes on April 14.
So far, a single candidate from each of the three ballot-qualified parties has announced an intention to run. If there is only a single candidate from each party, there will be no special primary and the special election will be June 6. If there is a primary contest, then the primary will be June 6 and the special general election will be July 25.
Former Republican state house member Joseph Lachance says he will seek the Libertarian nomination. He was a Republican nominee for the State House in 2012 but lost to a Democrat. In 2014, he was again a Republican nominee for State House and he was elected. In 2016 he ran for re-election and was defeated by a Democrat.
The Republican nominee will probably be former State Senator David Boutin, who held this Senate seat through 2016; he did not run for re-election in 2016. The Democratic nominee will probably be Jim Normand, who served in the State House many decades ago, when he was a college student. Thanks to Michael for this news.
No order was entered in the Montana ballot access case involving the upcoming special U.S. House election, on Friday, April 7, at least as of 7 p.m. Montana time.