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)
Robert Barb, the Green Party candidate for Montana’s U.S. Senate seat, is on November’s ballot after a Lewis and Clark County District Court judge on Tuesday denied a request from the Montana Democratic Party for an injunction to try to keep him out of the election.
Judge Mike McMahon denied the Democratic Party’s injunction request and dissolved a temporary restraining order issued by another district court judge that temporarily prohibited Secretary of State Christi Jacobsen from certifying the November ballot to include Barb’s name.
But the Montana Democratic Party’s chairperson said the party planned to appeal the decision to the Montana Supreme Court, meaning if the state’s high court sides with the Democrats’ forthcoming appeal, Barb could potentially still be taken off the ballot.
“I’m pleased that the court sided with the election officials for following the law and certifying the 2024 General Election ballot by the deadline,” Jacobsen said in a written statement Tuesday. “This lawsuit was nothing more than bogus political games meant to undermine Montana law with complete disrespect to county election officials during one of their busiest stretches of an important election year. The Montana Elections Team will continue its work preparing to serve Montana voters this fall.”
The Democratic Party sued to stop Jacobsen from certifying the ballot with Barb’s name on it hours before the certification deadline, arguing that the Green Party had not followed its bylaws in appointing Barb and that the appointment should have gone to a vote of party members, not been made by the party’s central committee. It said that having to educate voters about a different candidate than Democratic U.S. Sen. Jon Tester would have faced otherwise in November would cost the party extra time and resources.
Barb intervened in the lawsuit ahead of a hearing last Friday that came a week after another Lewis and Clark County District Court judge had issued a temporary restraining order that said Jacobsen could not certify the ballot with Barb’s name on it.
But McMahon’s order said the Democratic Party’s argument that the Green Party had not followed its bylaws in appointing Barb as the replacement U.S. Senate candidate after primary winner Michael Downey dropped out of the race “conveniently ignores” that the Democratic Party had not informed Barb it was challenging his nomination as is required by Montana Code Annotated 13-36-102.
That statute, as Barb’s attorney told McMahon in court on Friday, requires a person or organization contesting a candidate’s nomination, like the party’s appointment of Barb for the Senate race, 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.
Because he denied the Democratic Party’s request for a preliminary injunction, he also dissolved the Aug. 22 temporary restraining order issued by Judge Kathy Seeley about 50 minutes after Jacobsen certified the November ballot.
McMahon rendered moot Barb’s motion to dismiss the case as well. Jacobsen and the state’s motion for summary judgment is not fully briefed and McMahon did not issue an order on that request.
Barb’s attorney, Rob Cameron, told the Daily Montanan that he and Barb were pleased with the court’s quick decision so his client will be on the ballot and so county election officials can get ballots out to overseas and military voters on time.
“We view it as very well-reasoned and thoughtful, and we were also gratified to see it come out this quickly, particularly in light of the election calendar requirements that are coming up for the local elections officials to print ballots,” Cameron said, adding he would not seek attorneys’ fees in the case.
Montana Democratic Party chairperson Robyn Driscoll said the party would appeal the decision and that it still believes Barb’s appointment was done illegally and that his sworn attestations to adhere to the Green Party’s platform were not true.
“Today’s ruling does not reflect what we know to be true: Robert Barb’s placement on the ballot was done in violation of Montana law, and no Green Party candidate should appear on the ballot as a U.S. Senate candidate,” Driscoll said in a written statement. “Robert Barb is a Republican, with a history of donating to Republicans, promoting right-wing conspiracy theories, and calling climate change a ‘B.S. fake narrative.’”
The Secretary of State’s Office did not immediately respond Tuesday to questions about whether it would continue to seek summary judgment in the district court case or seek attorneys’ fees.