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Constitutional Challenge in GOP Primary Race

HELENA, Mont. (CN) - A Republican primary candidate claims an unconstitutionally vague election law forces Montana political candidates to engage in compelled speech, under threat of prosecution.

Plaintiff Matthew Monforton, a Bozeman attorney, seeks Republican nomination for Montana House District 69 in Gallatin County. He wants to rent a billboard and send letters to the county's 9,000-plus residents, accusing incumbent Ted Washburn of a "flip-flop" voting record on Obamacare and a state-mandated health exchange.

But Montana's "Compelled-Vote-Reporting Provision" on political speech makes that difficult, he says in the federal lawsuit against the state.

Monforton claims in the lawsuit that publishing his opponent's voting history would "improperly camouflage Rep. Washburn's overall support for Obamacare."

The law requires that candidates who publish an opponent's voting record must also publish the vote(s) on which the information is based, disclose contrasting votes on the same issue for the previous six years and a signed statement the information is accurate, Monforton says in the complaint.

He claims the law "chills his speech and association" in violation of the First and Fourteenth Amendments, is unconstitutionally vague and an unconstitutional prior restraint.

He claims the law's vagueness forces candidates to seek approval of their speech before publication, forcing them to ask permission to "speak."

"While the law does not require those wishing to speak about candidates' voting records to seek an advisory opinion first, the practical effect of the law is that those wishing to speak must do so or face the threat of civil fines and removal from office or nomination," he says in the complaint. "This constitutes a prior restraint on speech."

Complying with the law could force him to spend money on extra pages in mailers, to include the required information, Monforton says.

"Candidate Monforton does not intend to include in his letters each and every one of Rep. Washburn's flip-flops regarding his Obamacare votes," the complaint states. "Candidate Monforton believes that doing so would improperly camouflage Rep. Washburn's overall support for Obamacare."

Named as defendants are Montana Commissioner of Political Practices Jonathan Motl, Attorney General Tim Fox, Lewis and Clark County Attorney Leo Gallagher, and Gallatin County Attorney Marty Lambert.

Monforton says the defendants have the authority to investigate and prosecute violations of the Compelled-Vote-Reporting Provision.

"The statute requires challengers such as candidate Monforton to disclose all of an incumbent's contrasting votes during the previous six years regarding 'the same issue,'" Monforton says.

He claims he can only "guess" what the state considers the "issue" concerning Washburn's votes, and guesswork could leave him vulnerable to prosecution.

"For example, the 'issue' involved in HB 590, SB 395 and HB 623 could reasonably be characterized as 'Medicaid," thereby requiring candidate Monforton to publish and explain all of Rep. Washburn's votes over the past six [years] concerning Medicaid and make a campaign letter far more lengthier and confusing," the complaint states.

Monforton seeks declaratory judgment that the law is unconstitutional, and wants its enforcement enjoined.

He is represented by Anita Milanovich, of the Bopp Law Firm in Bozeman.

Monforton appears to come from the right wing of the Republican Party. He called the prophet Muhammad "a seventh-century pedophile" in an Oct. 4, 2011 letter to the editor of the Bozeman Daily Chronicle. The letter also criticized "Stanley McCrystal [sic] and his successor, David Petreaus [sic], who recently lectured us about respecting the 'Holy' Qu'ran (a book whose author married a 9-year-old), [and] straightjacketed [sic] American troops with absurd rules of engagement." (Parentheses, but not brackets, in letter, as published by the newspaper.)

Monforton was a prosecutor for Los Angeles County but left California in 2006 after filing a whistleblower lawsuit that "essentially accused the district attorney - his former boss - for drumming up business for a former district attorney turned defense lawyer," the Bozeman Daily Chronicle reported in a May 17, 2009 story. Monforton, then 40, returned to his native Montana and got part-time work as a Bozeman Municipal Court judge.

Monfort's opponent, incumbent Washburn, also is extremely conservative. He received 100 percent ratings from the Montana Family Foundation and the Montana Chamber of Commerce, and only 7 percent from Montana Conservation Voters, 17 percent from the Montana Human Rights Network, and 33 percent from the Montana Education Association, according to votesmart.org.

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