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)
The Montana Democratic Party on Wednesday asked the Montana Supreme Court to take control of its case challenging the appointment of the Green Party’s U.S. Senate candidate and the Secretary of State’s certification of the ballot, appealing a judge’s decision that denied the Democrats’ effort to keep the candidate off the ballot.
The party’s attorney in the case, Caitlin Boland Aarab, filed the notice of appeal of Lewis and Clark County District Court Judge Mike McMahon’s order denying the party’s request for a preliminary injunction on Tuesday evening, then filed the emergency petition for a writ of supervisory control over the case on Wednesday morning, according to the filings.
In an order issued Tuesday morning, McMahon sided with the state and intervenor Robert Barb, the newly appointed Green Party U.S. Senate candidate, denying the injunction based on his interpretation of Montana Code Annotated 13-36-102.
McMahon said the Democratic Party’s arguments in filings last week and in court on Friday ignored that statute, which requires a person or organization contesting a candidate’s nomination to notify the candidate within five days of the candidate being certified.
“Since the Democratic Party failed to comply with the Legislature’s exclusive nomination ‘contest’ procedure, this court finds, at this juncture in this proceeding, that the Montana Democratic party is not likely to succeed on the merits in this matter and therefore, a preliminary injunction is neither permitted nor authorized,” McMahon wrote in his order.
In Wednesday’s petition for a writ of supervisory control, Boland Aarab wrote that McMahon’s interpretation of that statute, in conjunction with others surrounding how a party replaces a candidate when a primary winner dies or drops out of the race, was incorrect.
“That conclusion was wrong—so wrong that the Secretary herself never raised it and the district court offered no analysis whatsoever in support,” she wrote. “As is clear from the statutory text, the Chapter 36 procedures govern election contests challenging a candidate’s nomination in a primary election, not appointments that occur outside of an election.”
She contends that Chapter 36 of Montana Code Annotated “has no application” if a person or group challenges the appointment of a replacement candidate under MCA 13-10-327, which she argues “takes place outside of the election contest” and is the statute utilized in replacing a candidate before the ballot is certified.
The request says that Montana law distinguishes between a nomination of a candidate and the appointment of a candidate and that the party’s contention that the Green Party did not follow its bylaws in appointing Barb when primary winner Michael Downey dropped out falls squarely into the appointment bucket.
“In short, none of these provisions use the terms ‘nomination’ and ‘appointment’ interchangeably. Rather, they are distinct terms that trigger distinct procedures for challenge: Chapter 36 governs challenges to ‘nominations’ that result from primary elections, but does not extend more broadly to allow challenges to ‘appointments’ under § 13-10-327,” Boland Aarab wrote. “And only challenges to a candidate’s access to the general ballot that follow a primary election are subject to eh election contest procedures; challenges to candidates who are chosen through other means must abide by Section 13-10-327 instead.”
She wrote that the plain language of the election statutes at hand “makes clear that election contests are limited to challenges to primary and general elections and do not reach vacancy appointments outside of an election.”
Boland Aarab goes on to argue many of the same points she did in district court filings and at Friday’s hearing – that the Green Party did not follow its bylaws and hold a vote of members in deciding a “statewide issue” to replace Downey, instead relying on its central committee to pick Barb, the runner up in the primary, for appointment to the ballot by the deadline.
“Even if the rules were silent on the specific question of ‘who makes the replacement appointment decision when a candidate withdraws,’—which they are not—it is unreasonable to interpret them as somehow allowing the officers to unilaterally determine the party’s candidate for U.S. Senate,” she wrote in the filing.
Boland Aarab wrote the Green Party “forfeited” its opportunity to have a candidate in the U.S. Senate race by not following statute and meeting the required deadline. And she argued the balance of equities tips in the Democratic Party’s favor, saying the party will be harmed absent an injunction, but if one is granted, it would meet the party’s request and further the Secretary of State’s duties to maintain uniformity in the application and interpretation of the state’s election laws.
“Certifying a Green Party candidate despite the party’s violation of Montana’s election laws and Party bylaws would not only undermine the fairness of the election but also invite political parties to disregard Montana law in the pursuit of their electoral goals (or, here, the electoral goals of their losing candidates),” Boland Aarab wrote. “At bottom, the faithful application of Montana’s election laws serves the interest of the State and the electorate alike.”
As of early Wednesday afternoon, the state and Secretary of State’s Office had not filed a response to the appeal, and the court had not issued any orders on the request for supervisory control.