On May 25, U.S. District Court Judge Sam Haddon ruled that Montana’s March petition deadline for non-presidential independent candidates is unconstitutionally early. The case is Kelly v McCulloch, cv-08-25. Montana’s petition deadline for non-presidential independent candidates had been in June between 1973 and 2007, but in 2007 the legislature moved it to March. Here is the 22-page opinion. UPDATE: here is a newspaper story about the decision.
Steve Kelly, who desired to be an independent candidate for U.S. Senate in 2008, had then sued to overturn the new early deadline. Judge Haddon had initially ruled that Kelly lacks standing, because he had not attempted to petition in 2008. But the 9th circuit had reversed the standing decision, and had sent the case back to the U.S. District Court for a ruling on the merits. That decision has now been issued. The Montana legislature won’t be in session until 2013, so presumably the Secretary of State will administratively set a new deadline to be in effect for the 2012 election. In this lawsuit, Kelly was represented by the ACLU.
The Montana independent candidate procedure is also a means for unqualified parties to appear on the general election ballot. Montana has always permitted independent candidates to choose a partisan label, which appears on the ballot in place of the word “independent”. So, in effect, the Montana independent petition procedure functions as a means for unqualified parties to also get on the ballot. The decision upholds the number of signatures for independent candidates, which is 5% of the vote for the winning candidate in the previous election. The number of signatures averages out to 3% of the last vote cast. The opinion says nothing whatsoever about the plaintiff’s point that the full party petition is only 5,000 signatures, and it doesn’t seem rational to require an independent candidate for statewide office to collect approximately twice as many signatures as are needed for a new qualified party. Also, independent presidential candidates just need 5,000 signatures.
The opinion also upholds the filing fee, which is 1% of the salary for the office. Montana law provides a way around the filing fee for candidates who can’t afford it.
The Montana decision is the third one this year to strike down, or enjoin, a too-early petition deadline for independent candidates or newly-qualifying parties. The others have been in Tennessee (April too early) and California (January too early).