A five-justice Montana Supreme Court panel on Tuesday denied the Montana Democratic Party’s request that the court take over its casechallenging the appointment of the Green Party’s U.S. Senate candidate, saying the party had not convinced the justices that a lower court erroneously allowed the Green Party candidate onto the ballot.

The decision means U.S. Senate candidate Robert Barb remains on the ballot.

Daily Montanan
By Blair Miller
September 17, 2024

While the court panel denied the party’s request for a writ of supervisory control, it also found that the party had not shown it was likely to succeed on the merits of its argument for a preliminary injunction that would block Secretary of State Christi Jacobsen from certifying the November ballot to include Barb.

The denial of the writ does not outright put an end to the Democratic Party’s case; it has appealed Lewis and Clark County District Court Judge Mike McMahon’s ruling from Sept. 3, which denied the Democratic Party’s request for an injunction to keep Barb off the ballot. Barb and Libertarian Sid Daoud are the third-party candidates on the ballot alongside Democratic U.S. Sen. Jon Tester and Republican Tim Sheehy.

But the court panel wrote in its opinion Tuesday that it would “reach the same result as that court under a different analysis.”

In a statement, Jacobsen said she was happy with the court’s decision and that her office had followed the law when it certified the November ballot to include Barb’s name.

“I’m pleased that the Supreme Court unanimously rejected this hail Mary attempt to undermine Montana election law,” she said in a statement. “From the start, this lawsuit was a baseless political game from Washington elites that showed complete disrespect for Montana and our election officials.”

The Democratic Party’s attorney had argued in the request for supervisory control that McMahon had incorrectly interpreted statute that involves how a party replaces a candidate on the November ballot when the primary winner drops out of the race or dies prior to the election.

Green Party U.S. Senate primary winner Michael Downey dropped out of the race on the final day he was allowed to, and the party appointed Barb as his replacement just ahead of Jacobsen’s deadline to certify the November ballot. The Democratic Party sued, arguing the party did not follow its bylaws in accordance with the law that concerns how parties replace their candidates.

Lewis and Clark County District Court Judge Kathy Seeley originally granted a temporary restraining order less than an hour after Jacobsen certified the ballot, but after hearing arguments from the three sides in a preliminary injunction hearing a week later, McMahon vacated the restraining order and denied the Democratic Party’s request for a preliminary injunction.

Attorneys for the Democratic Party, Jacobsen and Barb all filed briefs with the court during the past week and a half, and a five-justice panel unanimously decided Tuesday not to grant the writ or preliminary injunction requested by the Democrats.

Much of the argument has involved the words “appointment” and “nomination,” where they are contained in various election and candidate statutes, and whether the Green Party properly followed the law in replacing Downey with Barb.

The court panel found the Legislature had made different procedures for challenging nominations than for appointing a replacement candidate. It also found that interpreting a section of law as requiring a party who wants to challenge the appointment of a replacement candidate to wait until after certification “would be at odds with allowing ballots to be printed and distributed in a timely fashion.”

“Although such would not be an absurd result, it would not give effect to the purpose of the statute, which in part requires political parties to comply with their own bylaws in appointing replacement candidates in the event of the death or withdrawal of a nominee after the primary election,” the court wrote.

But it found that the Democratic Party had not established that it is likely to succeed on the merits of its request for a preliminary injunction, for which four factors need to be met in order for one to be granted.

The court also agreed with the state’s argument that the Democratic Party’s contention that Barb was not appointed in accordance with the Green Party’s bylaws was “merely speculative.”

“MDP has thus failed to demonstrate that it is likely that the Montana Green Party violated its party ‘rules’ when its state central committee appointed Barb to fill the vacancy created by Downey’s withdrawal,” the court wrote.

The panel ruled that while it disagreed with McMahon’s application of a portion of state law, the Democratic Party did not establish it was likely to succeed on the merits.

“MDP has not convinced us that the District Court erred in its ruling in its Sept. 3, 2024 Order, although we reach the same result as that court under a different analysis,” the court wrote. “Since we have not concluded that the District Court is proceeding under a mistake of law, this matter is not susceptible to writ of supervisory control.”

Barb’s attorney, Rob Cameron, said he and his client felt the court got the decision correct that the Democratic Party was not entitled to an injunction.

“We’re gratified and encouraged by the Supreme Court’s prompt ruling here. Of course we agree that the Supreme Court got it right on the law, and that was the important issue – that the Democratic Party did not meet its initial burden of proving a likelihood of success on the merits of the case,” he said.

Cameron said he views the separate appeal as essentially moot because of the time that has passed and the state laws requiring county election officials to mail out ballots to overseas and military voters by Sept. 20 this year.

A spokesperson for the Democratic Party did not respond to a question of whether the party would continue with the appeal.

Robyn Driscoll, chairperson of the Montana Democratic Party, said the party would focus on educating voters about Barb, whom the party contends is a Republican who swore to run as a Green Party candidate in an attempt to sway the Senate race between Tester and Sheehy.

“While today’s ruling is disappointing, the Montana Democratic Party will continue to make sure that voters know the truth about Robert Barb: He is a well-known Republican who shares right-wing conspiracy theories and believes climate change is a ‘B.S. fake narrative,'” Driscoll said in a statement. “We strongly condemn the Montana Republican party’s blatant manipulation of voters and troubling refusal to follow Montana election law, and we will continue to share the truth from now until Election Day.”