Primary ballots land in Montana absentee voters' mailboxes this week, but two candidates for U.S. Senate's names won't be on them.
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. Instead, both candidates -- Dan Cox of Hamilton and Jerry McConnell of Missoula -- will be on the general election ballot.
The ACLU of Montana opposes that decision and is looking forward to a meeting later this week with an attorney from the Secretary of State's office to discuss a solution.
Though McCulloch's ruling will save Montana's counties as much as $390,000 in primary election costs and may be in line with Montana law, it fails to uphold the rights of political parties under the First Amendment of the U.S. Constitution as interpreted by federal courts because it does not allow the Libertarian Party to pick its own candidate.
The ACLU of Montana sent a letter to McCulloch in April pointing out this issue, and urged 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.'"
Putting both candidates' names on the November ballot would divide that party's vote, creating an impediment that no other party on the ballot faces.