On June 6, the Montana Secretary of State filed a 7-page brief in U.S. District Court in Kelly v McCulloch, defending her decision, made on May 29, to set a May 29 petition deadline for non-presidential independent candidates.
On Friday, late in the day, May 25, the U.S. District Court had invalidated the statutory March petition deadline. No one was aware of this decision until Tuesday morning, May 29 (May 28 was a holiday). The Secretary of State’s decision, saying, in effect, “OK, the new deadline will be today” obviously gave no potential independent candidate a chance to take advantage of the new deadline. Therefore, the plaintiffs then asked the Court to set an August 15 deadline instead.
The Secretary of State’s brief says that the plaintiffs’ brief cites no legal authority for its argument that what the Secretary of State decided on May 29 is invalid. However, the Secretary of State’s brief doesn’t cite any precedent arguing that what she did is valid. There are no precedents, because never before in history has any state made a decision like this. Early petition deadlines have been struck down, or enjoined, 51 times in the past. Never before did a state election official then set a new deadline that was impossible for anyone to meet. Generally, when a state loses a constitutional ballot access lawsuit, it tries to offer meaningful relief. For example, when the New Jersey April petition deadline was enjoined on July 21, 1997, the state accepted petitions until July 28, 1997.
Montana’s brief is also deceptive. It implies that the new deadline is in June, which is not true; the new deadline is May 29.