Challenge to Montana Ban on Ministers' and Other Group Leaders' Election-Related Advocacy in Private

(Eugene Volokh)

As I mentioned last month, Montana law provides that,

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person's religious duty or the interest of any corporation, church, or other organization.

The law is now being challenged, in Zastrow v. Bullock (D. Mont. filed Feb. 21, 2012). One possible obstacle to the lawsuit is that it's not clear whether the law is at all being enforced, and, in the absence of a credible threat of enforcement, the lawsuit might be dismissed on standing grounds. But note, for whatever it's worth, that this statute (among others) is included on a one-page poster that, "[b]y law … must be posted in conspicuous places in [every] polling place."

The lawsuit also challenges the arrest of plaintiff based on his signature gathering. The arrest might or might have not had anything to do with Zastrow's status as a minister, but may have violated the First Amendment in any event, depending on whether the place where he was gathering signatures was private or public property.