Democratic Party weighs legal options in turbulent Senate race

Montana Democratic Party leadership has received legal advice about its options should U.S. Senate nominee Alani Bankhead withdraw from the race. Bankhead has publicly stated multiple times that she will not withdraw.

The state party’s executive board was briefed over the weekend that it cannot be forced to produce a replacement if Bankhead withdraws before the Aug. 10 deadline for having her name removed from the November ballot. The advice, solicited by party Chair Shannon O’Brien, was delivered by Washington D.C.-based Elias Law Group just days after Republican Secretary of State Christi Jacobsen suggested she could require the party to name a replacement.

“This was Shannon getting legal analysis. It was sent to the board, sort of like fait accompli,” party spokesperson Sofia Perez told Montana Free Press Monday. There had been questions about the party’s legal obligations, but board members had not voted to seek opinion, she said.

A faction of the party’s most prominent members is advocating that Bankhead clear a path for independent candidate Seth Bodnar by leaving the race. The Democrat entered the summer with $21,000 in the bank, a fraction of the amount raised by Bodnar and Republican Kurt Alme, who have raised roughly $2 million each, more typical early summer amounts for a U.S. Senate campaign in Montana. Campaign finance reports show Bankhead with just 42 donors who have contributed more than $50.

After the board was briefed on the matter by an Elias attorney, O’Brien shared a document marked “private and confidential” with the party’s county-level leadership. The document was then repeatedly posted on social media by Democrats insisting that O’Brien was attempting to drive Bankhead out of the race.

Sunday, roughly a dozen executive board members met again, this time unofficially, and so without the ability to take action. Some Bankhead supporters on the board were upset enough about the document being shared that they suggested O’Brien be removed from office. Board member Pat Noonan, a former state legislator from Ramsay, confirmed the discussion took place, saying he suggested the group review the chair’s performance instead.

Elias Law Group is known for its work on election law, particularly its opposition to President Donald Trump’s attempt to obtain unredacted, state-controlled voter information in an attempt to build a national database. The Saturday consultation was preceded by an unsolicited advisory from several Montana Democratic attorneys, who in mid-July told the party that its First Amendment right to association prevents the state from compelling it to select a replacement, or to support Bodnar.

Bodnar is part of a wave of independent candidates running for Congress in red states where Democrats aren’t competitive. Since 2014, Montana Democrats have won two of 26 races for statewide or federal office.

Behind the scenes, Bodnar and Bankhead have met twice since late July to discuss whether one of them should withdraw, Perez confirmed. Those meetings, with Montana Democratic Party Director Emily Marburger present as an observer, follow a request by several Democratic state legislators that one of the two candidates bow out. 

The talks between Bankhead and Bodnar have been inconclusive.

“You know, they just wanted to make sure that at least they were coming to the table,” Perez said.

Republicans have consistently suggested that despite being grossly underfunded, Bankhead is the strongest non-Republican candidate in the race, offering conservative political analysis and poll summaries commissioned by conservative organizations as evidence.

News that Montana Secretary of State Christi Jacobsen intended to require Democrats to provide an alternative candidate in the event of Bankhead’s withdrawal was circulated by Republican Kurt Alme’s campaign.

Monday, the conservative news website Washington Reporter reported hearing from anonymous Republican sources that Democrats were polling on former Gov. Steve Bullock as a party replacement for Bankhead under a scheme in which both Bankhead and Bodnar withdraw.

“It was just amusing,” Perez said of the Bullock report. “Like, where are you guys getting that? Where is that sourced from?”