Such a motion could result in a win for Montana. Only one of the five conservative justices need join with the four justices who oppose Citizens United in order to dismiss the case for lack of jurisdiction based on sovereign immunity and to allow the Montana Supreme Court decision to stand.
Alternatively, if jurisdiction
is found, the avoidance of summary reversal and the briefing and hearing so
afforded may at least provide Montana and its amicus supporters the chance they
need to present their case on the merits in the full daylight of public
attention. They may persuade at least
one more justice through briefing and oral argument that facts about elections
since 2010 and facts about Montana warrant a different decision than the one
reached in Citizens United.
James Marc Leas is a patent attorney in Vermont