For the second time in two years, the fate of the Green Party's place on the ballot in Montana is in the hands of a Helena judge.
In June, the Montana Democratic Party sued the secretary of state. The Democrats said enough people had asked for their signatures to be removed from the petitions that got the Green Party on the ballot this March that the effort no longer met the threshold to qualify.
The secretary of state's office, however, contends not enough signature withdrawal forms were submitted by the deadline and in the correct fashion.
Through the two-day hearing in a sweltering courtroom, Judge James Reynolds repeatedly said in some ways the case is a mechanical exercise of counting the forms.
But the Montana Democratic Party also asked the judge to decide some trickier questions. That includes the actual cutoff date to submit withdrawals and if electronic documents should be accepted, especially during a pandemic.
An attorney working for the Democrats also posed a bigger question: What's the moral responsibility, if any, of the secretary of state to take into consideration that the Montana Republican Party financed the effort to qualify the Greens? And in a fashion the state Commissioner of Political Practices decided broke finance disclosure laws?
Absent from the courtroom and the entire case, as Reynolds pointed out, was anyone associated with the Montana Green Party. Reliably contacting the party has been a challenge for the media. Most of the information about their thoughts on the entire process have been culled from Facebook posts. That's the platform the Greens used to say they were in no way involved with any petitioning.
It's where they said they haven't endorsed any candidates running as Greens this year, and even disavowed one candidate for bigoted statements in 2018. It's also where the Greens said a political action committee backing the Green candidate for U.S. Senate this year was funded by a conservative group, pointing out the association of a PAC with the Green Party should be evidence enough of something squirrelly.
Green Party candidates can be seen as drawing votes from Democrats, which the Montana Democratic Party pointed out in court makes it harder to get Democrats elected in a state where that can already be a heavy lift. Libertarians, who were already on the ballot, can draw votes from Republicans. In 2012, a liberal group spent $500,000 on ads for a Libertarian candidate in a move some argue helped elect a Democrat to the U.S. Senate by picking up off enough votes from the GOP candidate.
Reynolds is expected to decide how this year's ballot will look soon.
"It's a case about the integrity of Montana elections and about Montanans' rights to not be forced to be associated with a party they don't support, a deceptive effort they don't approve of and a goal of putting forth minor parties solely to siphon votes," said Matthew Gordon, a lawyer with Perkins Coie in Seattle, who represented the Montana Democratic Party and a handful of voters who wanted their signatures removed. Mike Meloy, a Helena attorney, also represented the Democrats.
Austin James, an attorney in the secretary of state's office who defended his boss alongside Matt Meade, of Smith, Oblander and Meade based in Great Falls, argued it's not the secretary's role to weigh the motives behind the effort. He pointed out the plaintiffs who signed the petition knew they were taking action to get the Greens on the ballot, which was the outcome.
"Every witness signed that petition because they believe the Green Party should have candidates. So no, I can't be a moral police officer," James said in his closing argument.
Reynolds opened the two-day hearing by saying he didn't believe the case was about who paid for the petition effort, nor did he want to start a "purity test" of anyone's motives to qualify a party.
"That is beyond the scope of this court or any court," Reynolds told the lawyers at the outset. He added the same applies to the motivations behind people who want their signatures off the petition.
"I just want to know if there's a mechanism out there that says if you signed, you're allowed to withdrawal by this mechanism, by this date, through this method," Reynolds said. "That's what this case is about."
A timeline helps track the complicated progression of events.
Going back two years, a still-unidentified group paid people to gather petitions to get the Green Party on the 2018 ballot in Montana, the year Democratic U.S. Sen. Jon Tester won reelection against Republican state Auditor Matt Rosendale. The state Democratic Party went to court then challenging the validity of some of those signatures. In July 2018, Reynolds found enough signatures invalid that the Greens no longer qualified and ordered them off the ballot.
In response to that case, lawmakers in 2019 passed a bill that requires any group working to qualify a minor party for the ballot to register as such a committee and report what they spend on the effort.
Jumping forward to this February, people with clipboards appeared in cities and towns around Montana seeking signatures again for a petition to get the Green Party on the ballot in 2020. The petitioners refused to tell people, including journalists, who they were associated with.
Reporters around the state tried to figure it out, including attempting to contact the Montana Republican Party and its operatives with no success. Initially a national group called Club for Growth Action, a conservative political action committee, filed as a minor party qualification committee but almost immediately after said they had no intention of turning in signatures.
On March 6, the Friday before the Monday deadline for candidates to sign up to run for office, the secretary of state certified the Green Party for the ballot. Several candidates filed under the party's name. At that point it was still unclear who paid to get the party qualified.
At the end of March, the state GOP announced they'd funded the effort, just before a campaign finance reporting deadline would have made it clear.
After that announcement, what Gordon called "a flood of petition signers" sought to remove their signatures, aided by an aggressive effort from the Montana Democratic Party.
State law doesn't clearly spell out when the deadline to accept those signature withdrawal forms is. It references "final action," which the secretary of state's office defined in an internal memo as the day Secretary Corey Stapleton certified the Green Party for the ballot.
James, who wrote that memo, said he drew from precedence in crafting it. He also said he was concerned if the Greens weren't certified quickly, someone else might have been the one taking the office to court.
Democrats contend the deadline decided by the secretary of state is wrong, especially given that voters had no way of knowing at the time the GOP was behind the effort. The also point out the secretary's office failed to publicize the deadline, which they say made it impossible for voters to exercise their right to have their signature removed.
"Denying the voters' rights here ... would reward the Republican Party's misleading conduct and encourage other parties to do the same thing here, sending the message of violating the statutory disclosure requirements ... that that's acceptable," Gordon said.
James countered some sort of deadline was needed.
"If you can endlessly withdraw, that means that you will constantly have attempts. We're paying for primary ballots to go out, (that could be) then be rendered void later," James said. "There has to be a point when the right to withdrawal ends."
In Montana, voters must pick just one party's ballot to vote in the primary.
James did, however, admit some sort of public information would have been helpful, but that a confluence of election deadlines and a pandemic was already stressing the office. He added he felt stuck in a position of "damned-if-you-do, damned-if-you-don't."
"Maybe putting PSAs out would have been great. The only thing is, at that time at least two of my bosses were running for office and they probably would have gotten dinged for doing that," James said.
It's also not entirely clear what forms of requesting to get a signature removed from a minor party ballot qualification petition are acceptable. Some people used the form that is specified for the removal of signatures from other types of petitions, but language on that form doesn't mention minor party qualification efforts. Others used DocuSign, an online electronic records management system.
Meade, the lawyer for the secretary of state's office, said that there was not a secure setup with DocuSign, so using it would have put the office's electronic security at risk. He also said there aren't ways to verify signatures through that system like elections workers do with so-called "wet signatures," meaning ones on a piece of paper.
Gordon, the Democrats' attorney, countered that state law doesn't rule out the use of something like DocuSign.
Meade also argued that while television stations, newspapers and online outlets were all writing stories about the unknown financier of the effort to get the Greens on the ballot, it was public information.
He pointed to filings with the Federal Elections Commission, not the typical place to look for state-level political spending, showing the Montana Republican State Central Committee's payed $50,000 to "ATM," as it was listed, or Advanced Micro Targeting, on Jan. 21. That's the company that paid petitioners to gather signatures.
That was the only disclosure clearly filed before the March 6 certification of the Green Party for the ballot.
The Montana Republican Party on March 30 filed a report showing a $100,000 in-kind contribution to a group called Montanans for Conservation. And while Montanans for Conservation registered as a political committee before March 6, they incorrectly filed as an independent committee, not a minor party qualification committee.
Montanans for Conservation also listed the year they were active, one of the ways to sort through hundreds of committees in the state campaign finance database, as "2000."
"The effect of this is it was very difficult to find this document," testified Trent Bolger, a longtime employee and senior adviser to the Montana Democratic Party.
The state Commissioner of Political Practices has found in a separate complaint process that the Montana Republican Party broke campaign finance law through the process. The state GOP, for its part, in a July 1 letter to the commissioner contends it has "properly, timely, fully and accurately reported all expenditures related to this matter." That issue is still pending.
In the case in front of Reynolds, the secretary of state's office argued it's not their place to weigh the motivations of political groups and that campaign finance law is outside the scope of their office.
"'My part of this is I've got petition signatures that are coming, I've got to do something with them. I've got to call balls and strikes," testified Dana Corson, the elections director for the secretary of state. "... These are somebody else's actions on our mission, which is not relevant to me. I would not do such a thing."
Gordon countered that the secretary of state's office was also, by setting the deadline and what forms were acceptable, in effect defining the strike zone.
In his closing arguments, he said Reynolds leaving the Green Party on the ballot would "undermine confidence in the petition process and in elections integrity." He pointed to the co-plaintiffs who testified they were "furious" upon learning the state GOP's connection.
"It would send a signal to others to do exactly what the Republicans did here, that it's OK to mislead people," Gordon said.
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