Attorney Caitlin Boland Aarab argues the Montana Democratic Party’s case as to why a Green Party candidate should be off the U.S. Senate ballot in front of Judge Mike McMahon on Aug. 30, 2024. (Photo by Blair Miller, Daily Montanan)
A Lewis and Clark County District Court judge will have to decide whether or not there should be a Green Party U.S. Senate candidate on Montana’s November ballot after hearing arguments Friday morning from lawyers for the Democratic Party, which is trying to keep the candidate off the ballot, and attorneys for the state who say the party followed the rules for replacing their primary winner when he dropped out of the race earlier this month.
The Montana Democratic Party’s lawyer for the case, Caitlin Boland Aarab, told Judge Mike McMahon he should uphold the temporary restraining order granted last week by Judge Kathy Seeley that enjoins Secretary of State Christi Jacobsen from putting Green Party candidate Robert Barb on the November ballot.
She also asked him to issue a preliminary injunction doing the same because she contends the Green Party did not follow state law and its own bylaws when it appointed Barb to replace Michael Downey, who dropped out of the race on the last day he was eligible to do so earlier this month.
Austin James, an attorney for the Secretary of State, told McMahon that Jacobsen had fulfilled her ministerial duties in allowing Barb on the ballot because the Green Party had attested that it had appointed him in line with state law a day before the ballot had to be certified last Thursday.
James also said that it would be overly burdensome for county elections officials to have to reformat and reprint ballots, some of which he said have already started that process, should McMahon order Barb be removed from ballots across the state.
The arguments from both sides boil down to the Green Party’s bylaws and a series of statutes containing procedural steps in the ballot certification process. Depending on how McMahon interprets them based on both sides’ arguments, his decision could have broad ramifications because Barb, in theory, could siphon votes away from the two major-party candidates in the race, incumbent U.S. Sen. Jon Tester, a Democrat, and his Republican challenger, Bozeman businessman Tim Sheehy, whom recent polls show are in a neck-and-neck race as Republicans try to win back the Senate majority this November.
Democratic Party says Green Party didn’t follow state law
Boland Aarab told McMahon that the Democratic Party will have to spend extra resources convincing voters to support Tester over Barb, as it had planned on having to do so against Downey until he dropped out of the race on the last day it was possible for candidates to do so earlier this month.
She said the Democrats would be harmed if Barb is placed on the ballot because they allege the Green Party did not convene a meeting of its members to vote to appoint Barb for the party’s nomination, which she interprets as being a requirement under the party’s bylaws. State law says a party must follow its bylaws filed with the Secretary of State when replacing a candidate that died or dropped out after winning the primary.
She posed to McMahon what she called an “absurd hypothetical” that she said could occur if Jacobsen’s and Barb’s arguments prevail in the case. Since the Green Party’s ballot access coordinator signed off on appointing Barb, she said he could also nominate Donald Duck in the same fashion, and the Secretary of State would have to put Donald Duck on the ballot since her role in that process is ministerial, she argued.
“Why do we have election laws at all? Why do we have an executive official whose job is to enforce those laws?” she said. “…The secretary, without oversight, certifies Donald Duck for the ballot. And by doing so, has immunized herself from judicial review.”
She said she was asking McMahon to invoke his power “to ensure the election laws of our state are upheld because the secretary is refusing to do so.”
Endorsements vs. appointments in Green Party bylaws
James, on behalf of the Secretary of State’s Office, said the secretary must presume that a candidate affirmation and appointment is valid since it is sworn under the penalty of perjury, and that it requires a court order to prove otherwise. He said the Democratic Party has not shown proof, only speculation, that the Green Party lied, adding that it is not the office’s duty to “prove a negative.”
The Green Party’s bylaws contain language about requiring a vote of members for “endorsements” of statewide candidates, which the two sides argued back and forth about for much of the meeting. The bylaws contain no language about appointments, and the two sides and Barb’s attorney disagreed about whether the bylaws were followed.
Rob Cameron, the attorney for Green Party U.S. Senate candidate Robert Barb, argues in court on Aug. 30, 2024. (Photo by Blair Miller, Daily Montanan)
Barb’s attorney, Rob Cameron, who intervened in the case on Thursday on Barb’s behalf, said the Democratic Party was attempting to “insert what’s been omitted” into those bylaws, saying the concepts of endorsements and appointments are different things.
He said that the party would have had to violate its own bylaws, which suggest issuing a meeting notice 14 days in advance, in order to vote on appointing Barb ahead of the Secretary of State’s ballot certification deadline or bow out of the race entirely.
McMahon pointed out that the bylaws also said the three officers for the party have ministerial duties as well and are granted no power, but Cameron contended that their authority can go beyond what is written into the bylaws because it is not a “complete list” of all officers’ duties.
James spent time telling McMahon that siding with the Democratic Party would harm “exhausted” election officials as well as military voters living overseas by having the election officials reformat and reprint ballots if they have already printed them as certified last week. The secretary must send out military and overseas ballots on Sept. 20.
“If you want to contest a nomination at the end, there’s probably recourse there, but asking the court for the relief that they’ve asked, at this stage of the game, at this point of where it’s moot, with the tremendous costs and harms it has, in the face of a statutory requirement to certify upon those things and a statutory requirement for both the Secretary of State and the court to presume the validity … I believe that this case is very one-sided, and the preliminary injunction should be denied,” James said.
Dems’ attorney: Barb not ‘entitled’ to appearing on ballot
After the defendants’ attorneys made their arguments, Boland Aarab had the chance to rebut them. She noted that a statute says the Secretary of State should determine whether someone is entitled to appear on the ballot before certifying the ballot, and that the only remedy if that did not occur is judicial review.
Speaking to the defendants’ contention that it was too late to redo ballots without Barb’s name, she pointed out that four years ago, when the Secretary of State was enjoined from putting the Green Party on the ballot by a district court, the Montana Supreme Court did not affirm the injunction until Sept. 23, and there were “no issues” getting ballots to overseas and military voters.
She also noted that state statute includes a section that spells out how a ballot can be corrected, which includes correcting the ballot, redoing the entire ballot, or creating a separate ballot only for that race.
And she said state law does not impose a duty on a political party to participate in an election, and the legislature cannot compel them to do so under the First Amendment, arguing that Barb’s insistence that he has a right to appear on the ballot was incorrect.
“It is inequitable to the Democratic Party to have to educate voters about a brand-new candidate in the race, especially a candidate who appears to have qualified for the ballot in violation of election laws. You compare that with the equities to the secretary – and there is no harm to the secretary if the court enjoins the conduct here; the secretary should celebrate the strict enforcement of our election laws. And then you compare that to Mr. Barb, the intervenor, who is not entitled as a matter of right to appear on any ballot,” Boland Aarab said. “It cannot be the case that the hardship to Mr. Barb is strict compliance with election laws.”
Final arguments
The Attorney General’s Office also called Assistant Attorney General Thane Johnson to the stand to discuss the timing of Boland Aarab’s filing and whether attorneys for the office and the Secretary of State were properly noticed of the request for a temporary restraining order last Thursday before Seeley granted it at 7:57 p.m.
The state contends that the restraining order should be dissolved because it did not receive proper notice. Boland Aarab got Johnson to acknowledge that he respected Seeley’s ex-parte order despite disagreements about the notice.
Montana Secretary of State’s Attorney Austin James argues in front of Lewis and Clark County District Court Judge Mike McMahon on Friday, Aug. 30, 2024. (Photo by Blair Miller, Daily Montanan)
McMahon said he had concerns that ordering the dissolution of the restraining order would just lead to the Democratic Party refiling the case and the parties ending up back in the same place. He said an order on the preliminary injunction would effectively moot the restraining order anyway.
Cameron told him that granting a preliminary injunction could lead to a “slippery slope” regarding candidate replacements. And Boland Aarab closed her argument by saying the concerns voiced about the reprinting of ballots by the Secretary of State’s Office could have been avoided if it abided by the restraining order last week, which was issued within an hour of the ballot being certified.
“This TRO is in place, and it will be in place until the court issues its order on the preliminary injunction. And the court should issue that order because the concern about the certification of ballots and the printing that may have happened, that came after the TRO was issued in this case, enjoining the secretary from certifying or putting Robert Barb on the ballot,” she said. “And so, this is a fiasco of the secretary’s own making, and a preliminary junction would return us to the status quo prior to her certification.”
McMahon thanked all of the attorneys for meeting “strict deadlines” and their efforts over the past week. He had not issued an order as of 3 p.m. Friday.