UPDATED Thursday, March 24:  This application was denied by the full Court on March 23, without explanation.  The order is here.  (The state’s response filed on March 22, but not previously linked, is here.)


The Montana Republican Party and eight of its county-level committees have asked the Supreme Court to bar non-Republicans from crossing over and casting GOP ballots in the state’s “open primary” election on June 7.  The application (Ravalli County Republican Central Committee v. McCulloch, 15A911) seeks action by the Court by March 31.  The state has been told to reply by Tuesday afternoon.

Potentially, this dispute over cross-over voters could affect all of the eleven states that now have an “open primary” — that is, one in which voters are not restricted to vote only for a specific party’s candidates for state and congressional offices.

The request was filed with Justice Anthony M. Kennedy, who handles emergency legal matters from the geographic area that is the Ninth Circuit, which includes Montana.  Kennedy has the option of acting on his own or sharing the request with the other Justices.

The specific request is for a order by the Court that would free the Montana GOP to conduct a primary in which only members of its party could participate.  If such an order were issued by March 31, the GOP groups said, they would have time to write rules for the party’s nomination process that would confine it to registered Republicans only.   Ballots for military and overseas voters who will be absent on election day will start going out in the mail on April 22.

Montana has had an “open primary” since the state’s voters approved that approach in 1912.  As it currently operates, a voter goes to the polls to vote, and is free to choose either a ballot on which only Republican candidates are listed, or one  listing the Democratic candidates.

No proof of party affiliation is necessary, and the voter has the option of requesting both parties’ ballots.  In that case, the voter must choose one, and throw the other away.  But election officials do not know whether any particular voter has cast a ballot for the GOP or for the Democrats.  No one is asked which of the two ballots he chose.

The idea behind the “open primary” — typical of the political reform agenda of the early 1900s — was to make elections more democratic (small “d”) by encouraging all to participate, regardless of their party preferences.

Because Republican tend to dominate Montana politics, the GOP groups told the Court, organizations that favor Democratic candidates — like the largest labor union in the state, representing 18,000 teachers  — have told their members to cross over and to vote for the more moderate GOP candidates, presumably less likely to support the party’s platform than committed conservatives.

The case against the Montana primary system has been unfolding for most of the past two years, and has not yet actually gone to trial in a federal district court in Helena.  But, in advance of that trial, U.S. District Judge Brian M. Morris has turned down two requests by the GOP groups to temporarily bar cross-over voting.   The U.S. Court of Appeals for the Ninth Circuit refused to do so, too, on March 3.

Judge Morris found that the GOP organizations had not offered evidence, specific to Montana, about what the party affiliation is of voters who cast Republican or Democratic ballots, and, in fact, have not even clarified just what it takes for a voter to be treated as a Republican or Democrat.  Without such hard evidence, for Montana elections, the judge said, there is no way the party can prove that it is actually being harmed by the cross-over phenomenon.  Mere theories, or data from other states, is not sufficient, the judge declared.

In taking the issue on to the Supreme Court, seeking to block cross-over voting temporarily as a prelude to a coming appeal by the GOP to the Justices, the Montana organizations argued that they have a right to associate politically with only those who are Republicans, under the First Amendment concept of “free association.”

With GOP candidates knowing that they might attract votes from those who otherwise would vote Democratic, some candidates actually are altering their campaign messages, thus straying from the policy principles that are preferred by Montana party leaders and party regulars.  That can dilute the party’s electoral message, the groups contended.

“Forced association in an open primary between a political party and non-members constitutes a substantial intrusion into the associational freedom of party members, and can be devastating to the party,” the GOP application asserted. “A single election in which the party nominees is selected by non-party members could be enough to destroy the party.”

After state officials have answered the application, the Montana GOP will have the option of filing a reply.  After that, Kennedy or the full Court could act at any time.


Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Montana GOP challenges cross-over voters (UPDATED), SCOTUSblog (Mar. 21, 2016, 12:09 AM), http://www.scotusblog.com/2016/03/montana-gop-challenges-cross-over-voters/