Breck et al v. Stapleton

Filing 24

ORDER granting in part and denying in part 21 Motion to Stay. Signed by Judge Brian Morris on 4/11/2017. (APP)

Case 9:17-cv-00036-BMM-JCL Document 24 Filed 04/11/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

THOMAS BRECK, DANIELLE
BRECK, DOUG CAMPBELL, and
STEVE KELLY

CV-17-36-M-BMM

Plaintiffs,
ORDER REGARDING MOTION
FOR STAY PENDING APPEAL
vs.

CORY STAPLETON, in his official
capacity as Secretary of State of the
State of Montana,

Defendant.

Plaintiffs have filed a Motion for Stay Pending Appeal. (Doc. 21.) Plaintiffs’
motion requests that the Court issue a stay pending appeal and order Defendant
Montana Secretary of State (“the State”) not to print ballots or send ballots to
overseas voters until the Ninth Circuit resolves the appeal. (Doc. 22 at 3.)
Plaintiffs’ appeal challenges the Court’s injunction against the State’s enforcement
of “ballot access laws to the extent that it requires an independent or minor party
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candidate to obtain in excess of 400 valid signatures in order to appear on the
ballot for the May 25, 2017, special election for the United States House of
Representatives.” (Doc. 19 at 26.)
Plaintiffs request an injunction pending appeal that would prohibit the State
from printing ballots or sending overseas ballots until the Ninth Circuit resolves
their appeal. The standard of review for an injunction pending appeal proves the
same as the standard for a preliminary injunction motion. Lopez v. Heckler, 713
F.2d 1432, 1435 (9th Cir. 1983). A plaintiff must demonstrate “that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest” in order to obtain a preliminary injunction.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs make no
effort to demonstrate that they meet any of these factors except likelihood of
success on the merits. (Doc. 22.)
Plaintiffs argue that the Court has provided no remedy for the State’s
constitutional violation of Plaintiffs’ ballot access rights. Id. at 4. The Court
concluded in its Order on Plaintiffs’ Motion for a Temporary Restraining Order
and Preliminary Injunction that the State’s ballot access laws violated Plaintiffs’
constitutional rights. (Doc. 19 at 19.) The Court declined, however, to place the
Plaintiff-candidates’ names on the ballot and instead barred the state from
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enforcing the signature requirement in any amount over 400 signatures. Id. at 1926. Nothing prevented Plaintiffs from collecting signatures during the period of
March 1, 2017, to March 6, 2017. Plaintiffs opted not to attempt any concentrated
efforts and instead followed a strategy that deemed any effort to achieve the 5
percent as futile.
Plaintiffs now claim that the Court’s remedy proves inadequate and ask for
extra time to gather signatures or otherwise demonstrate a substantial modicum of
support. Plaintiffs seek an appeal on that basis. Plaintiffs argue that they have
demonstrated a likelihood of success on the merits of this appeal. (Doc. 22 at 4-7.)
The court’s opinion in Jones v. McGuffage, 921 F. Supp. 2d 888 (N.D. Ill. 2013),
offers guidance for evaluating the Court’s remedy in this case.
The court in Jones likewise determined that Illinois’s ballot access laws
likely proved unconstitutional in the context of a special election. Id. at 901. The
court there also declined to place the plaintiff-candidates’ names on the ballot and
instead decreased the signature requirement three days before signatures were due.
Id. at 903. The court acknowledged that its ruling might have had “no practical
effect” on the plaintiffs. The court justified the potential ineffectiveness, however,
by stating that it was not “the [c]ourt’s place any more than it is the State’s to help
any particular candidates get on an election ballot.” Id. Rather it is the court’s “sole

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function . . . to make sure that the state does not erect insurmountable barriers to
access.” Id.
The Court in this matter likewise chose a remedy—the same type of remedy
that the court issued in Jones—that prohibits the State from erecting
insurmountable barriers to ballot access. The collection of 400 signatures would
have been surmountable based on the evidence presented at the hearing on April 4,
2017. The Constitution requires nothing more. An order to place the names of
Breck, Campbell, and Kelly on the ballot improperly would have subverted the
State’s compelling interest “in requiring any candidate for office to first show a
substantial modicum of support.” Id. at 902.
Plaintiffs claim that Justice Powell’s chambers opinion in McCarthy v.
Briscoe, 429 U.S. 1317 (1976) (Chambers Opinion), stands for the proposition that
the Court should consider alternative demonstrations of support rather than
maintain a reduced signature requirement. (Doc. 22 at 5-6.) Plaintiffs argue that
Justice Powell’s willingness to consider presidential candidate Eugene McCarthy’s
alternative evidence of support places an onus on this Court to consider alternative
evidence of support for Breck, Campbell, and Kelly. Id.
The Court addressed this issue in its order. The Court determined that Breck,
Campbell, and Kelly have failed to demonstrate the level of support that prompted

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Justice Powell to order the State of Texas to place Senator Eugene McCarthy’s
name on the 1976 presidential ballot. (Doc. 19 at 20.) Plaintiffs concede that the
putative candidates “may not be Eugene McCarthy.” (Doc. 22 at 6.) The Court
agrees. Senator McCarthy won election for office twice to the United States Senate
and five times for the United States House of Representatives. McCarthy v.
Briscoe, 429 U.S. at 1317. Plaintiffs seek to have their names placed on the ballot
for a special election to the United States House of Representatives for Montana’s
at-large seat. Only Kelly previously has run for any electoral office at any level.
Kelly never has won an election for any office at any level. Breck and Campbell
have never run for office. All three failed to point to present evidence of statewide
name recognition or other indicia of support.
Plaintiffs have failed to demonstrate a likelihood of success on the merits for
the reasons stated. The Court declines to grant Plaintiffs’ Motion to the extent that
it requests an injunction pending appeal that would have required the State to
refrain from printing ballots or sending overseas ballots. The Court determines that
granting the Plaintiff’s motion to the extent that it requests to stay the case pending
resolution by the Ninth Circuit proves appropriate.
Accordingly, IT IS ORDERED:

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1. Plaintiffs’ Motion for Stay Pending Appeal (Doc. 21), is DENIED to the extent
that it requests an injunction pending appeal that would have required the State to
refrain from printing ballots or sending overseas ballots.
2. Plaintiffs’ motion is GRANTED to the extent that it requests a stay pending the
Ninth Circuit’s resolution of the Plaintiffs’ appeal.
3. This case shall be stayed pending the Ninth Circuit’s resolution of the Plaintiffs’
appeal.
DATED this 11th day of April, 2017.

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