Before the 2016 election season even concluded, the 2018 campaign season for one small Montana community had already started heating up. Robin Benson, the Clerk and Recorder of Lincoln County, a small county of less than twenty thousand people, announced on October 18, 2016, in a lawsuit filed in the U.S. District Court of Montana, that she plans on running for reelection in 2018. In the suit, Ms. Benson challenges Montana’s nonpartisan election laws as a violation of candidates’ free speech rights.

The current disagreement over the law began during Ms. Benson’s 2014 campaign for office. In 2009, the voters of Lincoln County elected to switch to nonpartisan elections for their local officeholders. Nonpartisan elections have a long history in the State of Montana. Along with requiring nonpartisan judicial elections, Montana has allowed counties to choose whether to conduct local government elections on a partisan or nonpartisan basis since the 1970’s. Under Montana’s statutory scheme and MCA § 13-10-602, nonpartisan candidates are prohibited from using the name of a political party in their campaigns. Any violations of Montana election law are criminal misdemeanors.

During the 2014 campaign, Ms. Benson prominently identified herself as a Republican in her campaign materials and on her campaign Facebook page. After complaints from her opponent and voters in the county, the Montana Commissioner of Political Practices John Motl and the Montana Secretary of State’s office both informed Ms. Benson that her campaign materials and online statements were in violation of Montana’s election law. Benson removed the references to the Republican party from her materials and Facebook page in the week before the 2014 election in order to comply with the law.  Ms. Benson now challenges that law as a violation of her First Amendment right to free speech and argues that she has a right to identify herself as a Republican in her campaign for reelection in 2018.

The State will likely have to defend the law under exacting strict scrutiny review. The United States Supreme Court has repeatedly upheld the importance of the First Amendment right to free speech in the context of political elections. For example, in Brown v. Hartlage, the Court held that the First Amendment right to free speech “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” This means that the State will have to identify a compelling government interest for restricting candidate speech and that the restriction must be narrowly tailored so that the restriction does not “unnecessarily circumscribe protected expression.”

Montana’s unique statutory scheme, which allows counties to chose whether to run their local elections as partisan or nonpartisan, may spell doom for both compelling state interest and narrow tailoring arguments. In 2014, only fourteen of the fifty-six counties in Montana ran nonpartisan elections. This means that in the other forty-two counties, candidates were allowed to identify themselves as members of a political party. The State may find it difficult to argue that a non-mandatory law serves a compelling government interest. As of this writing, no briefs had yet been filed in the case, so we must wait for the State to articulate its compelling interest and how this scheme is narrowly tailored to meet it.

The stakes are high for the State. A successful suit for Ms. Benson will have repercussions well beyond Lincoln County; the challenged law governs all nonpartisan elections in the State. Beside the fourteen counties that held nonpartisan local elections in 2014, the law also governs all judicial elections from the county-level to the Montana Supreme Court.

Nonetheless, an adverse holding for the State may not have an immediate impact on judicial elections. Depending on how the issue is ultimately resolved by the court, Montana Code of Judicial Conduct Rule 4.1(A)(6), which prohibits judicial candidates from identifying as a candidate of a political organization, may still preserve the nonpartisan character of judicial elections in the State. This is especially true if the challenged statute’s non-mandatory nature for counties plays a role in the district court’s decision, because unlike a county’s choice to opt-in to nonpartisan local elections, Rule 4.1(A)(6) is not optional for judicial candidates. Regardless of any impact on judicial elections, the suit has potential to change the political landscape of local elections across the State.

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