Steve Kelly; Clarice Dreyer v. LINDA McCULLOCH, in her official capacity as Secretary of State of the State of Montana

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable James P. Jones, United States District Judge for the**
Western District of Virginia, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE KELLY; CLARICE DREYER,
Plaintiffs - Appellants,
v.
LINDA McCULLOCH, in her official
capacity as Secretary of State of the State
of Montana,
Defendant - Appellee.
No. 10-35174
D.C. No. 2:08-cv-00025-SEH
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 5, 2010
Portland, Oregon
Before: W. FLETCHER and FISHER, Circuit Judges, and JONES,
District Judge.**
FILED
DEC 10 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Steve Kelly and Clarice Dreyer appeal the district court’s grant of summary
judgment to the State of Montana. We reverse and remand.
The district court held that Kelly did not have standing because one portion
of his testimony indicated that he did not decide to run for office until after the
complaint was filed. The district court also found that Dreyer did not have
standing because her claim was derivative of Kelly’s claim. At several other
points, however, Kelly testified that he decided to run before filing the lawsuit.
Kelly’s conflicting testimony was not a reason to find for Montana at the summary
judgment stage. At most, it indicated a genuine dispute of material fact to be
resolved by the factfinder.
Under our precedent, however, Kelly and Dreyer both have standing as a
matter of law as registered voters, whether or not Kelly has standing as a would-be
candidate. As Judge O’Scannlain wrote in Erum v. Cayetano, 881 F.2d 689 (9th
Cir. 1989), overruling on other grounds recognized by Lightfoot v. Eu, 964 F.2d
865, 868 (9th Cir. 1992),
Erum brought this action in his capacity as a registered voter of the
State of Hawaii as well as in his capacity as an erstwhile and
potentially future candidate. Candidate eligibility requirements
implicate basic constitutional rights of voters as well as those of
candidates. Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983); see
also Lubin v. Panish, 415 U.S. 709, 716 (1974). Therefore, even if
the Lieutenant Governor’s contention [that Erum lacked standing in

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his capacity as a candidate] is meritorious, Erum possesses standing to
challenge the whole of [the] ballot access restrictions in his capacity
as a registered voter.
Id. at 691. There is no dispute that Kelly and Dreyer are registered voters in
Montana. Their “basic constitutional rights” as voters are implicated, and they
therefore have standing to challenge Montana’s ballot access requirements.
We reverse. We remand to the allow the district court to reach the merits of
Kelly and Dreyer’s claims.
REVERSED AND REMANDED.

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