Secretary of State Corey Stapleton said on Thursday — the deadline for him to certify the Montana general election ballot — that he would ask the U.S. Supreme Court to reverse a Montana Supreme Court decision issued a day earlier affirming the Green Party should be removed from that ballot.
The Montana Supreme Court upheld a lower court's decision that Stapleton erred when he refused to accept signature withdrawal forms after he certified the Green Party to appear on the ballot, and by not accepting withdrawals submitted electronically. The lower court decision came from Helena District Court Judge James Reynolds.
Earlier this year, hundreds of people requested their signatures be removed from the petitions that qualified the Green Party. The requests, with help from the Montana Democratic Party, came after it became public that the qualification effort was financed by the Montana Republican Party.
Anthony Johnstone, a professor of law at the Alexander Blewett III School of Law at the University of Montana, said Thursday if the certification deadline is missed, it could mean military and overseas voters would not get ballots on time. The deadline for those ballots to go out is Sept. 18.
"(It) takes time to print ballots and code vote counting machines, and any delays now will be compounded by the other jurisdictions who already are lined up for ballots in a presidential election year," Johnstone wrote in an email. "The logistics of military and overseas voting requires additional advance work."
Johnstone also said the U.S. Supreme Court only hears cases that raise questions about federal law, and "lacks the power to decide questions of state law, such as the administrative procedures the Secretary did or did not follow in the withdrawal of signatures."
In a separate matter, the state Commissioner of Political Practices has said the Montana GOP broke campaign finance laws by not registering as a minor party qualification committee when it paid for the effort. The state GOP disputes the commissioner's findings.
The Montana Democratic Party and a handful of people who wanted their signatures removed from the petitions filed the lawsuit earlier this year against Stapleton, a Republican. After Reynolds' order, there were not enough remaining signatures to keep the Green Party on the ballot.
"It’s become crystal clear that in order for me to enforce important election deadlines and for Montana’s Constitution to be respected, we’re going to need a senior court to intervene and break the stranglehold the Montana Democratic Party has on Montana’s legal system," Stapleton wrote in a three-paragraph press release Thursday morning.
"Retiring Judge Reynolds’ tortured logic of insisting that I retroactively decertify election milestones in order to eliminate political competition for the Democrats is an assault on the intelligence of all Americans."
Stapleton's office did not respond to repeated emails Thursday asking whether the secretary would certify the ballot by that day's deadline.
Reynolds is retiring in October. This year is the second time he has removed the Green Party from the ballot in the last two years, both times on challenges from the Montana Democratic Party. It's still unknown who paid for the 2018 signature-gathering effort that qualified the Greens.
The Montana Democratic Party released a statement Thursday criticizing Stapleton's announcement.
"Yesterday the Montana Supreme Court affirmed that the Secretary of State's office violated Montana law as it rushed to certify the Montana GOP's massive fraudulent effort to mislead Montana voters and tamper with our elections. If Secretary Stapleton wants to expose his embarrassingly partisan, illegal behavior to judgment from the highest court in the land, he has every right to do so," said executive director Sandi Luckey in the statement. "Montana Democrats will continue to defend the integrity of our elections."
The Green Party has said it was not involved in the petition effort. A handful of people were running under the Green Party name, including in the hotly contested U.S. Senate race.
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 off enough votes from the GOP candidate.
It's unclear whether Stapleton has filed a petition with the U.S. Supreme Court. The nation's high court only accepts 100-150 of the more than 7,000 cases it is asked to review each year, according to the court's website. Four of the nine justices must decide to accept a case.
Missoula County Elections Administrator Bradley Seaman said Thursday he is waiting for guidance from the Secretary of State.
Seaman said that last-minute challenges to ballots are nothing new and that elections administrators have had to be extremely flexible this year. He also added it's too early to know if there will be concerns about meeting deadlines to get ballots to voters.
The District Court case Reynolds decided generally dealt with whether Stapleton followed his administrative duties laid out in state law. The state Supreme Court's full order is not available to see what they considered in their ruling.
Also Thursday, Stapleton asked the state Supreme Court to stay its own order, acknowledging the Thursday deadline and saying if ballots went out without the Green Party included, and if the U.S. Supreme Court later said the party should be on the ballot, there wouldn't be a way to remedy ballots. In the filing, the secretary said ballots including the Green Party could be remedied by "marking out or covering up listed Green Party candidates" if necessary. The state Supreme Court quickly denied that request.