Serving the Flathead Valley & Montana since 2006. A reality based independent journal of observation & analysis. © James Conner.

 

11 January 2014

Conservative attorney challenges 2013 MT election law

An important First Amendment lawsuit was filed against Montana in federal district court yesterday by a conservative attorney from Bozeman, Matthew Monforton. He’s challenging the constitutionality of SB-392, passed in the 2013 legislature by wide margins and codified as MCA 13-35-225, Election materials not to be anonymous — statement of accuracy — notice — penalty, which mandates that a candidate’s printed campaign materials describe an opponent’s votes in a particular way. Charlie Johnson has the long story at the Missoulian:

Monforton is targeting the 2013 law that requires all “printed election material” mentioning a candidate’s voting record also includes a reference to the votes upon which the information is based.

The law also requires disclosure of “contrasting votes known to have been made by the same candidate on the same issue if the contrasting votes were made in any of the previous six years.”

In addition, under the law, the person mentioning the other candidate’s voting record must provide a signed statement that the statements are “accurate and true.”

U.S. District Court Charles Lovell in 2012 found the previous version of this state law unconstitutional as part of a broader challenge of state election laws that included Montana’s contribution limits. The Legislature passed a new version last year.

Incumbents like this law. They argue it protects them from distortions of their records. Monforton, reports Johnson, contends that telling candidates what they must say amounts to telling them what they must not say, which amounts to prior restraint. Based on Johnson’s story — I want to read the briefs and complaint before I draw a firm conclusion — I think there’s a high probability the court will grant the relief Monforton seeks.

That would not make incumbents and progressives happy. With few exceptions, Democrats and Republicans are not all that much in favor of free speech. They prefer regulated speech, especially in political campaigns, and especially near the end of campaigns (which used to be election day, but now is the period between the first day of absentee voting and election day). So the First Amendment takes a battering when the legislature convenes, when incumbents look for ways to remain incumbents, and when city planning zealots seek ways to bring spit and polish order to political discourse.

Besides the mandated political speech Monforton is challenging, Montana has clearly unconstitutional durational limits on political yard signs. “House for Sale” signs can clutter a neighborhood forever, but political signs of the same size are forbidden until a few weeks before the election, and must be removed shortly after election day. That’s a distinction based on content, an unconstitutional distinction. The durations vary from town to town, from county to county. A good many of these obnoxious limits are imposed through zoning regulations, which I suspect are written by urban planners who received special training in suppressing First Amendment rights. Planners highly value order and are repelled by the occasional disorder that attends the free expression of political opinion.

When durational limits are taken to court, they are invariably struck down. But they’re seldom taken to court because not only are candidates and political parties pusillanimous about challenging the limits (might offend a voter; Lord, let’s not do that), they’re often in agreement with the limits. That’s especially true for incumbents, who never miss an opportunity to make it harder for challengers to get their names out. And so the assault on free speech continues, unfettered by a decent regard for the First Amendment.