                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          DEC 10 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

STEVE KELLY; CLARICE DREYER,                     No. 10-35174

               Plaintiffs - Appellants,          D.C. No. 2:08-cv-00025-SEH

  v.
                                                 MEMORANDUM *
LINDA McCULLOCH, in her official
capacity as Secretary of State of the State
of Montana,

               Defendant - Appellee.



                    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.**




          *
             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.
      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


                                           2
      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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