Montana Green Party nabs win in Ninth Circuit

The Green Party, or any minor political party, may have an easier time getting candidates qualified for the ballot after a U.S. Court of Appeals for the Ninth Circuit opinion reversed and remanded part of a decision in a case against the Montana Secretary of State.

“Montana’s approach (to qualifying candidates) results in a significant disparity in how much each signature is ‘worth’ in its house districts,” the court panel said in an opinion this week.

Therefore, the court said it agreed with the argument made by the plaintiffs, the Montana Green Party and eight registered voters, that the standard in the state violated their Fourteenth Amendment right to equal protection.

“I’m so ecstatic,” said Danielle Breck, one of the plaintiffs in the case, on Wednesday.

Breck said she and her family moved from Montana to Michigan a couple of years ago, but the case has remained important to her. She said she’s pleased to see the court protected the principle of “one man, one vote,” and she’s still in touch with friends in Montana and suspects the decision will energize the Green Party in the Treasure State.

“We felt a little bit betrayed by our state, and we had opportunity elsewhere, so we left,” Breck said. “But it’s important. We have friends and family out there.”

The Montana Secretary of State’s Office did not respond to an email requesting whether it would appeal the decision.

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The plaintiffs went to court after the Secretary of State decertified the Green Party from the 2018 ballot because the party didn’t collect enough signatures in enough districts based on the state’s standards, according to the opinion. In part of its ruling, the Ninth Circuit panel agreed with the Secretary of State’s argument that Montana’s “ballot access scheme,” its requirements for qualifying, made sure a new party had broad support and was “nonfrivolous.”

However, the panel found that part of the requirement for a petition submission didn’t have a valid justification and violated the one person, one vote principle in the Equal Protection Clause of the Fourteenth Amendment. The petition needed to be “signed by a number of registered voters equal to 5 percent or more of the total votes cast for the successful candidate for governor at the last general election or 5,000 electors, whichever is less.

“The number must include the registered voters in at least one third of the legislative districts equal to 5 percent or more of the total votes cast for the successful candidate for governor at the last general election in those districts or 150 electors in those districts, whichever is less,” the opinion said.

But the equation made it so that a signature in one district was worth as much as 2.73 times  as one from another district, depending on its population and support for the governor, the court said. 

“The panel concluded that the State provided no reason, much less a compelling reason, for requiring far more signatures in some equal-population districts than in others,” the opinion said. “Nor had the State explained why the number of signatures should be indexed to votes for the last successful gubernatorial candidate, a rule that arbitrarily devalued the signatures of voters in house districts that most strongly supported the current governor.”

The opinion said tying the signature requirement to the partisan character of each district rather than total number of votes cast was a “non-neutral criterion that results in substantial partisan-based variation from district to district.”

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Quentin Rhoades, who represents the plaintiffs, said the panel offered a straightforward analysis in its opinion, and it didn’t plow new ground or endorse novel legal theories. Rhoades, with Missoula-based Rhoades, Siefert and Erickson, also said the court’s ruling that supports one person, one vote, is significant in Montana.

“I think it’s really important for the Green Party to have a victory with respect to its efforts,” Rhoades said. “And I think it’s super important that the courts uphold that principle of one person, one vote, and that they have really zero tolerance for schemes that undermine it.”

He said the decision should make it easier for the Green Party to get on the ballot. That’s because members can collect more signatures that count in progressive and populous places such as Missoula County.

“They always had to run out into the hinterlands, and I’m telling you, they’re not welcome in Philipsburg,” Rhoades said. “And this way, they don’t have to face those lions as much.”

The lawyer said neither the Green Party nor the Republican Party is paying him for the work, but a win will mean he’s awarded fees, and the state will pay. He said he does the work on a pro bono basis because he wants to see fairness in elections.

Rhoades also said he believes the opinion will provide a boost to a group that had seen its morale suffer in Montana — and one that should be part of the political discourse. The most recent registration for the Montana Green Party on file with the Commissioner of Political Practices is dated 2018.

“I mean, they’re progressive. I’m not,” Rhoades said. “But they’re still my clients. And so I think it’s really important to try to come back and say, ‘You’re part of the electorate. We love you. We want you to be swinging for the fences too. Maybe you win, maybe you won’t.’”

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Lee Banville, a political analyst and professor at the University of Montana, said he was interested to see that the decision called out the state’s total lack of justification for the petition requirements: “What’s striking to me is not only the court saying they don’t have a good reason for this, they don’t have any reason.”

If it stands, he said the opinion means the state will need to go back to the drawing board to update its rules for qualifying candidates. So the equation needs to change, and the question at hand is what is a fair way to determine if a party has a legitimate following in the state.

“How are we going to measure the broad-based nature of a party?” said Banville, with the UM School of Journalism. “Because the way we’re doing it right now just got partially zapped by the court.”

Although the court decision should make qualifying a minor party candidate more straightforward, he said Montana’s process for getting on the ballot is complicated: “It makes it slightly easier, but not that easy.”

In its opinion, the panel also noted minor parties don’t have it easy in Montana. In addition to the method in question, the court said a party can hold a primary if it received votes for any statewide office in one of the last two elections totaling 5 percent or more of the total votes for the last successful gubernatorial candidate.

“As of 2018 (the relevant date when this case was presented to the district court), the last successful gubernatorial candidate had been Steve Bullock, who had received 255,933 votes in the 2016 election,” the opinion said. “The 5-percent threshold required a minor party to have received 12,797 votes statewide in order to qualify for a primary.

“Neither the Green Party nor any other minor party qualified for a primary under this provision in 2018. Indeed, no minor party has qualified for a primary under this provision since 2004, when the Green Party held a primary by virtue of its strong showing in the 2000 election.”