Mont. Green Party v. Jacobsen

• Decision Date: 08 November 2021
• Docket Number: No. 20-35340,20-35340
• Parties: MONTANA GREEN PARTY; Danielle Breck; Cheryl Wolfe; Harry C. Hoving; Doug Campbell; Steve Kelly; Antonio Morsette; Tamara R. Thompson; Adrien Owen Wagner, Plaintiffs-Appellants, v. Christi JACOBSEN, in her official capacity as Secretary of State for the State of Montana, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

17 F.4th 919

MONTANA GREEN PARTY; Danielle Breck; Cheryl Wolfe; Harry C. Hoving; Doug Campbell; Steve Kelly; Antonio Morsette; Tamara R. Thompson; Adrien Owen Wagner, Plaintiffs-Appellants,

v.Christi JACOBSEN, in her official capacity as Secretary of State for the State of Montana, Defendant-Appellee.

No. 20-35340

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2021 Portland, Oregon

Filed November 8, 2021

James C. Linger (argued), James Carter Linger Law Offices, Tulsa, Oklahoma; Quentin M. Rhoades, Rhoades Siefert & Erickson PLLC, Missoula, Montana; for Plaintiff-Appellant.

Hannah E. Tokerud (argued) and Patrick M. Risken, Assistant Attorneys General; Austin Knudsen, Attorney General; Attorney General's Office, Helena, Montana; for Defendant-Appellee.

Before: William A. Fletcher and Michelle T. Friedland, Circuit Judges, and Frederic Block,^* District Judge.

W. FLETCHER, Circuit Judge

The Montana Green Party ("Green Party") and eight registered Montana voters (collectively, "Plaintiffs") brought suit against the Montana Secretary of State¹ , seeking declaratory and injunctive relief against certain provisions of Montana's primary ballot access scheme. See Mont. Code Ann. § 13-10-601(2)(a), (b), (c), & (d) (2007). The district court granted summary judgment to the Secretary, holding that the challenged provisions of the scheme (1) do not violate the right of association and the right to cast an effective vote under the First and Fourteenth Amendments, and (2) do not violate the right to equal protection under the Fourteenth Amendment.

We affirm as to the first holding, but reverse as to the second.

I. Mootness

While this case was on appeal, Montana amended its election law, changing in some respects the provisions challenged by Plaintiffs. See 2021 Mont. Laws, ch. 399 (S.B. 350). We asked the parties to submit supplemental briefs addressing whether the amendments mooted Plaintiffs' appeal. Plaintiffs contend that the amendments have not rendered their appeal moot. In Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville , 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), a challenged ordinance was amended during the course of litigation, lessening the burden imposed on the challengers. The Court held that the amendment did not render the challenge moot, writing, "The new ordinance may disadvantage [the challengers] to a lesser degree than the old one, but ... it disadvantages them in the same fundamental way." Id. at 662, 113 S.Ct. 2297. In the case before us, the amended law disadvantages the Plaintiffs to a slightly greater degree than the previous law. The amendments do not fundamentally change either the challenged provisions or the applicable legal analysis. We therefore conclude that the amendments do not render Plaintiffs' appeal moot.

II. Background

Montana law offers two methods for a political party to qualify to hold a primary election. First, a party shall hold a primary to nominate its candidates if, for any statewide office in one of the last two elections, it received votes totaling 5% or more of the total votes for the last successful gubernatorial candidate. Mont. Code Ann. § 13-10-601(1) (2021). (This provision was not changed by the 2021 amendment.) 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 five-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.

Alternatively, a political party may qualify for a primary if it submits a petition to the Secretary of State that is:

signed by a number of registered voters equal to 5% 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% 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.

2021 Mont. Laws, ch. 399 (S.B. 350), § 1(2) (emphasis added). (The only change effected by the 2021 amendment was to replace "more than" with "at least." See Mont. Code Ann. § 13-10-601(2)(b) (2009).) The petition alternative is used only by minor political parties such as the Green Party.

The petition provision has two requirements. First, the total number of petition signatures statewide must be at least the lesser of: (a) 5,000, or (b) 5% of the total votes cast for the most recent successful gubernatorial candidate. Because the most recent operative 5% threshold in 2018 (based on the 2016 election) was 12,797, the lesser number of 5,000 satisfied the requirement. Second, the provision includes a geographic distribution requirement tied to the 100 districts of Montana's House of Representatives. The district boundaries were redrawn after the 2010 Census, and will be redrawn again in light of the 2020 Census. The populations in each district are very close to equal immediately after redistricting in the wake of a census, but can become less equal in the subsequent ten years due to population movement. A petition complies with the distribution requirement if, for 34 of the 100 house districts, it includes signatures numbering the lesser of (a) 150, or (b) 5% of the votes cast in that district for the most recent successful gubernatorial candidate.

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. This may be illustrated by a comparison of the votes received in 2016 in House District ("HD") 35, a rural district on the border with North Dakota, with those received in HD 100, a district in downtown Missoula.² In HD 35, Steve Bullock, the Democratic gubernatorial candidate, received 1,085 votes, while Greg Gianforte, the Republican candidate, received 3,577 votes. In HD 100, Bullock received 4,916 votes, while Gianforte received 894 votes. As a result, the "votes cast for the successful candidate for governor at the last general election" in these districts varied dramatically—from 1,085 in HD 35 to 4,916 in HD 100. HD 35 therefore required only 55 petition signatures, while HD 100 required 150 signatures (the ceiling number). In the lead-up to the 2018 election, 21 house districts required between 55 and 99 petition signatures, 53 house districts required between 100 and 140 signatures, and 26 house districts required 150 signatures.

When Montana first adopted its distribution requirement in 1981, the signature requirement in each district could only be satisfied by 5% of the votes for the previous gubernatorial winner. See Mont. Code Ann. § 13-10-601 (1997). In 1999, the legislature added the 150-signature ceiling as a disjunctive option. See Mont. Code Ann. § 13-10-601 (1999). Montana has no petition distribution requirement for statewide independent candidates or independent presidential candidates.

Under the law in effect for the 2018 election, a political party had to present the signed petitions and accompanying affidavits to the relevant county election administrators no later than 92 days before the date of the primary. Mont. Code Ann. § 13-10-601(2)(c), (2)(d) (2009). Election administrators were required to verify the signatures and forward petitions to the Secretary of State no later than 85 days before the primary. Id. If a party qualified for listing in a primary, the Secretary approved the petition and certified the party for the primary. If a party did not qualify, voters remained free to write in a vote for a candidate from that party. Id. § 13-10-211.

Sections 13-10-601(2)(c) and (2)(d) were modified by the 2021 amendment. Petitions now must be submitted to county administrators no later than 123 days before the election. Petitions and accompanying affidavits must be submitted to the relevant county officials "no later than 4 weeks before the final date for filing the petition with the secretary of state as provided in [section 4(2)]." Section 4(2) requires election administrators to verify the signatures and forward petitions to the Secretary "at least 95 days before the date of the primary."

2021 Mont. Laws, ch. 399 (S.B. 350), §§ 1(3), 4(2).

In 2018, the deadline for filing petitions was March 5. Before that date, the Green Party had submitted 10,160 signatures to county election administrators, collected from at least 38 house districts. (As will be discussed in a moment, the signatures from eight of those districts were challenged. The record reveals the identity of those districts. The record does not reveal the identity of the other 30 districts.) Of the 10,160 signatures, 699 were collected by the Green Party and its representatives. The other 9,461 were obtained by a Nevada political consulting organization called Advanced Micro Targeting ("AMT"). Larson v. State , 394 Mont. 167, 434 P.3d 241, 248 & n.2 (2019). AMT collected these signatures by employing thirteen signature-gatherers working for three weeks in four populous counties: Cascade, Missoula, Lewis and Clark, and Yellowstone. Id. at 248. It is not clear in the record who hired AMT. According to a stipulation filed in the district court:

The Green Party was aware of the theory that AMT was trying to get the Party on the ballot to affect the United States Senate race in Montana. The Green Party never spoke with AMT, did not

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