Appeals court: Montana ballot access law unconstitutional

HELENA — Part of a Montana election law that states how many signatures minor parties must gather for their candidates to appear on ballots is unconstitutional, the 9th U.S. Circuit Court of Appeals has ruled.

The Montana Green Party in 2018 challenged the rules that require minor parties to gather signatures equal to at least 5% of the total votes cast for the winner in the most recent gubernatorial election in at least 34 of 100 state House districts.

Signature requirements are capped at 150 per House district and parties need a minimum of 5,000 total signatures.

The number and distribution of signatures are in place to require the party to make a showing of "a significant modicum of support" and to show more than localized support, state law says.

U.S. District Judge Brian Morris ruled in March 2020 that the ballot access law did not create an undue burden for minor parties and did not violate the right to equal protection under the 14th Amendment.

A three-judge panel of the 9th Circuit ruled Monday, however, that setting signature requirements based on the number of people in each House district who voted for the winning governor leads to petition signatures being valued differently in districts with similar populations.

"Because the distribution requirement is tied to the votes cast in each house district for the winner of the gubernatorial race, the required number depends on the political orientation of a district, and varies substantially from one district to another," the panel wrote.

For the 2018 election, there were 21 House districts in which a minor party would have had to gather between 55 and 99 signatures, another 53 districts required between 100 and 140 signatures, and 26 required the maximum of 150 signatures, court records said.

"The state has provided no reason, much less a compelling reason, for requiring far more signatures in some equal-population districts than in others," Judge William Fletcher wrote. "Nor has the state explained why the number of signatures required should be indexed to votes for the last successful gubernatorial candidate, a rule that arbitrarily devalues the signatures of voters in house districts that most strongly supported the current governor."

The case is being sent back to Judge Morris to determine the relief to which the Montana Green Party is entitled, Montana Green Party attorney Quentin Rhoades said Friday. He said he also plans to request attorney fees from the state.

An email to a spokesperson for Secretary of State Christi Jacobsen seeking comment was not immediately returned Friday.

The Montana Legislature could not change the law until it is scheduled to meet again in 2023. The judges said neither the state nor the plaintiffs addressed whether the now-invalid distribution requirement can be severed from the rest of the primary ballot access law.