The ACLU of Montana objected to a Montana Secretary of State decision which would have split the general election Montana Libertarian vote for U.S. Senate by placing both candidates' names on the general election ballot.

Putting both candidates -- Dan Cox of Hamilton and Jerry McConnell of Missoula -- on the November ballot would divide that party's vote, creating an impediment that no other party on the ballot faces.

Secretary of State Linda McCulloch decided in March that the Libertarian Party did not meet the threshold requiring the state to prepare a primary ballot for the party because it did not field candidates for at least half the races on the entire ballot. After the primary election, one of the Libertarian candidates dropped out of the race, but we still believe a primary should have been held.

While McCulloch's ruling may be in line with Montana law, it failed to uphold the rights of political parties under the First Amendment of the U.S. Constitution as interpreted by federal courts.

The ACLU of Montana sent a letter to McCulloch in April pointing urging her to allow the Libertarian Party to choose its preferred candidate for U.S. Senate, if not on the ballot than through a party convention.

In his letter to McCulloch, ACLU Legal Director Jon Ellingson wrote, "The United States Supreme Court addressed the rights of a political party to select its nominee in the case of California Democratic Party et al. v. Jones, 530 U.S. 567. In that case the court held that 'when the states regulate parties' internal processes they must act within the limits imposed by the Constitution.' These limits 'vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer who best represents the party's ideologies and preferences. The moment of choosing the party's nominee... is the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.'"

McCulloch's office responded in a May 10, 2012 letter that it must presume that all laws passed by the Montana Legislature are constitutional.