Steve Kelly v. Linda McCulloch

MEMORANDUM

Steve Kelly and Clarice Dreyer appeal the district court’s grant of summary judg ment 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),

Id. at 691. There is no dispute that Kelly and Dreyer are registered voters in Montana. Their “basic constitutional rights” as…