Montana Dems sue to keep Green Party off November ballot

In a last-minute attempt to block the Green Party from Montana’s U.S. Senate race, Montana Democrats on Thursday sued to prevent Secretary of State Christie Jacobsen from adding 11th-hour Green candidate Robert Barb to the November ballot.

Thursday, Aug. 22, was the secretary of state’s deadline for certifying candidates for the ballot. Jacobsen did certify Barb, according to spokesperson Richie Melby. Both Jacobsen and the state were served with the lawsuit by Friday afternoon, but the case had not advanced further. The lawsuit marks the third U.S. Senate election in a row that the Montana Democratic Party has sued to block Greens from fielding a candidate. Democratic Party lawsuits disqualifying Green candidates in 2018 and 2020 succeeded.

The Democrats’ latest complaint cites past instances of the Montana GOP working to qualify Greens for Montana elections, including Barb in 2020 — a move the party argues siphons votes away from Democratic candidates. Montana Democratic Party chairperson Robyn Driscoll affirmed that assessment in a press release Friday morning. 

“There is no question that the Montana Republican Party has a history of Green Party meddling — funding efforts to qualify the party for the ballot, recruiting signature gatherers, and installing Republicans to run as Green Party candidates,” Driscoll said. “Robert Barb is without a doubt a Republican, having donated to Republicans, promoted social media posts that call climate change a ‘B.S. fake narrative,’ and amplified right-wing conspiracy theories. Robert Barb’s placement on the ballot was done in violation of Montana law, and no Green Party candidate should appear on the ballot as a U.S. Senate candidate.” 

During the Green primary, fellow Green candidate Micheal Downey pointed to Barb’s social media posts on Instagram, which included anti-conservation memes, as proof Barb wasn’t a real Green. A resident of Darby, Barb also has a short record of donations to the Republican National Committee.

The state Republican Party said it’s Democrats playing shenanigans with Green Party candidates.

“The only shenanigans going on here are from the Montana Democrats. Jon Tester planted Michael Downey in the Green Party primary and had him drop out minutes before the deadline. And now they’re suing while ballots are practically out the door,” Montana GOP spokesperson Madison Atkinson said in an email. “Jon Tester and Montana Democrats are actively trying to disenfranchise Green Party voters, so it is bizarre that they would lob these accusations at us.”

The gist of the lawsuit is that Montana Green Party directors submitted Barb’s Senate candidacy to the secretary of state without a vote of party membership, per party rules. Democrats argue that by not following those party rules, the directors invalidated Barb for submission to Jacobsen. The lawsuit does not include a Green Party member claiming disenfranchisement by Barb’s appointment as the party’s candidate. 

Barb’s attorney, former Deputy Attorney General Rob Cameron, told MTFP shortly after the candidate’s name was submitted to the secretary of state that Barb is a Green running on the core Green Party platform, including an end to Israeli occupation of Palestine and a ceasefire in the Israel-Gaza war. 

Steve Kelly, the longtime leader of the Montana Green Party, said the party accepted the candidacies of both Barb and Michael Downey, who won the Green Party primary for U.S. Senate but withdrew on Aug. 12, the last day a Montana candidate could drop out. Kelly said that after Downey dropped out, several Democrats asked Greens not to appoint a replacement.

Barb had filed a lawsuit against the Green Party arguing that he had a right to replace Downey by virtue of having received 38% of the primary vote. 

Downey told MTFP he ended his campaign because he didn’t want to be considered a spoiler in a tight race between incumbent U.S. Sen. Jon Tester, a Democrat, and Republican challenger Tim Sheehy. 

Montana’s Senate race is considered one of the most competitive in the country, with the winner potentially deciding majority control of the Senate.

Downey, like Barb, was accused of being a major-party plant. Downey was a regular contributor to the Democratic small-donation aggregator ActBlue from 2018 through 2020. Some of those donations were earmarked for Joe Biden, who didn’t have a Green Party opponent on the Montana ballot. Downey also donated to Democrat Kathleen Williams’ candidacy for Montana’s at-large U.S. House seat in 2018.

Like Montana’s major parties, the Greens don’t pre-approve candidates’ party credentials, Kelly said earlier in this week.

The Democrats’ lawsuit also seized on the Green’s late-summer candidate switch as an unfair burden on Democratic strategizing.

“MDP will be required to divert staff time and resources to developing new messaging strategies that appeal to voters choosing between the Democratic and Green Party candidates. It will then have to make additional campaign expenditures to disseminate this new messaging to the electorate, including by deploying additional staff, volunteers, literature, and advertisements,” the Democrats argued. “In turn, MDP will have to undertake additional fundraising efforts to support its new expenditures.”

Several of the arguments regarding the burden of campaigning against a new opponent resemble those made by Republican candidate for president Donald Trump regarding the ascension of Vice President Kamala Harris as the Democratic nominee after President Joe Biden dropped out. Harris accepted her nomination by Democratic delegates Thursday night. 

Montana’s smaller political parties have repeatedly been targeted by outside forces attempting to either amplify or scuttle the influence of small-party candidates, particularly in U.S. Senate races.

Earlier this month, Republicans flew Libertarian Senate candidate Sid Daoud from Kalispell to a Donald Trump rally for Tim Sheehy in Bozeman, Daoud said he was pressured to drop out the race, a move the national Libertarian Party was willing to facilitate in exchange for the appointment of Libertarians to a future Trump administration. Daoud, chairman of the Montana Libertarian Party, told KGEZ radio in Kalispell that he had to look Trump in the eye and turn the former president down.

The legitimacy of Downey’s campaign became an early part of Barb’s candidacy. 

In 2020, District Court Judge James Reynolds disqualified Green Party candidates from the Montana ballot after concluding that Republicans had orchestrated a petition drive to qualify the Green candidates for the election. Several people who signed the petition withdrew their support after learning Republicans had orchestrated the drive. The Greens denied any knowledge of the assistance. 

Similarly, in 2018 Democrats successfully sued to invalidate several signatures required to qualify a Green candidate for the election. 

In 2012, a dark money group managed by Democrats promoted the candidacy of Libertarian Dan Cox, who received 31,000 votes in a tight Senate race that incumbent Democrat Jon Tester won over Cox and Republican Denny Rehberg.

Montana Hunters and Anglers funded a late-in-the-race ad campaign to boost support for Cox. Cox garnered 13,000 more votes than the next Libertarian on the 2012 ballot. The group’s treasurer was Barrett Kaiser, a partner in the liberal campaign consultancy Hilltop Public Solutions. 

Democrats have sued the Green Party in several states this year. In Wisconsin, Democrats have sued to remove Green Party candidate for president Jill Stein from the ballot, the Associated Press reported. A similar challenge is playing out in Georgia.  In a Nevada court, Democrats argue the Green Party’s petition to qualify candidates for the ballot as a minor party was done incorrectly and should be rejected.

Tom Lutey is a reporter for the Montana Free Press, a nonprofit newsroom, and can be reached at tlutey@montanafreepress.org.