MT for Elections Reform v. State of MT ( 2023 )

11/22/2023
OP 23-0634
Case Number: OP 23-0634
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 226MONTANANS FOR ELECTION REFORM
ACTION FUND, ROB COOK, FRANK GARNER,
BRUCE TUTVEDT, DOUG CAMPBELL,
TED KRONEBUSCH, and BRUCE GRUBBS,
Petitioners,
v.
AUSTIN KNUDSEN, in his official capacity as
MONTANA ATTORNEY GENERAL; and
CHRISTI JACOBSEN, in her official capacity as
MONTANA SECRETARY OF STATE,
Respondents.
ORIGINAL PROCEEDING: Petition for Declaratory Judgment
COUNSEL OF RECORD:
For Petitioners:
Rob Cameron, Jackson, Murdo & Grant, P.C., Helena, Montana
Sean T. Morrison, Morrison Law Firm PLLC, Helena, Montana
Martha Sheehy, Sheehy Law Firm, Billings, Montana
For Respondents:
Austin Knudson, Montana Attorney General, Michael Russell, Assistant
Attorney General, Helena, Montana
Emily Jones, Jones Law Firm, PLLC, Billings, Montana
Decided: November 22, 2023
Filed:
' ,-6A•-if
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion and Order of the Court.
¶1 Petitioners Montanans for Election Reform Action Fund, et al. (“MER”), seek
declaratory judgment on original jurisdiction under M. R. App. P. 14(4). MER argues it is
entitled to declaratory judgment that: (1) the Attorney General’s determination that the
subject ballot issue is legally insufficient is incorrect; and (2) the Attorney General shall
prepare a ballot statement pursuant to § 13-27-226, MCA, and forward the statement to the
Montana Secretary of State within five days of this Court’s decision. At our invitation,
Attorney General Austin Knudsen has responded to the petition.
¶2 We consider the following issue:
Did the Attorney General err in concluding that MER’s proposed ballot issue is
legally insufficient because it violates the separate-vote requirement of Article XIV,
Section 11, of the Montana Constitution?
¶3 On August 16, 2023, MER submitted the text of a proposed constitutional initiative
and proposed ballot statements for the 2024 ballot to Secretary of State Christi Jacobsen.
The Secretary designated the submission as Ballot Issue 12 (“BI-12”). BI-12 proposes to
amend Article IV of the Montana Constitution to add a new Section 9. This section would
change Montana’s current party primary election system to a primary election for specified
offices open to all candidates and voters, and the top four candidates for each of the
specified offices would then advance to the general election.
¶4 MER submitted finalized initiative text and ballot statements to Jacobsen on
September 5, 2023, and Jacobsen referred the matter to the Attorney General the following
day. On October 13, 2023, the Attorney General determined that BI-12 is legally
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insufficient because it violates Article XIV, Section 11, of the Montana Constitution. On
October 16, 2023, the Secretary provided notice of the Attorney General’s determination
to MER. MER then petitioned this Court for declaratory relief on original jurisdiction on
October 26, 2023.
¶5 Section 3-2-202(3)(a), MCA, provides this Court original jurisdiction to review the
Attorney General’s legal sufficiency determination in this matter. It is within the Attorney
General’s authority to determine whether a proposed ballot issue complies with the
separate-vote provision of Article XIV, Section 11, of the Montana Constitution.
Monforton v. Knudsen, 2023 MT 179, ¶ 11, 413 Mont. 367, ___ P.3d ___. Thus we
consider whether the Attorney General correctly concluded that BI-12 violates Article
XIV, Section 11, of the Montana Constitution, because it proposes multiple constitutional
amendments.
¶6 BI-12 would amend Article IV of the Montana Constitution by adding a new Section
9 that would provide as follows:
Section 9. Top-four primary election for certain offices. (1) As used in
this section, the term “covered office” means the office of governor,
lieutenant governor, secretary of state, auditor, attorney general,
superintendent of public instruction, state representative, state senator,
United States representative, United States senator, and other offices as
provided by law.
(2) The election for a covered office must consist of a primary election
followed by a general election in which each of the four candidates for a
covered office who receive the most votes in the primary election, and only
those candidates, shall appear on the general election ballot.
(3) In an election for a covered office, the following conditions apply:
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(a) All candidates, regardless of political party preference, affiliation,
nomination or lack of political party preference, affiliation, or nomination
shall appear on the same primary election ballot separated by office.
(b) Qualified electors, regardless of political party preference or
affiliation or a lack thereof, may participate in the primary election for each
covered office for which they are eligible to vote.
(c) Each qualified elector may vote for no more than one candidate for
each office in the primary election.
(d) If it cannot be determined which four candidates received the most
votes in the primary election because two or more candidates are tied, the tie
shall be broken as provided by law.
(e) If four or fewer candidates for a covered office qualify for the primary
election ballot, a primary election is not required and all candidates shall
appear on the general election ballot.
(f) A space for write-in candidates may appear on the primary election
ballot as provided by law.
(g) A candidate may not be required to obtain the endorsement or
nomination of any political party or organization in order to qualify for the
primary election ballot.
(h) If the legislature requires candidates to obtain signatures to qualify for
the primary election ballot, the number of signatures required may not exceed
5% of the total votes cast for the candidate elected for the same office in the
last general election for that office.
(i) A candidate may choose to have displayed next to the candidate’s
name on the ballot the candidate’s preference for a political party or that the
candidate prefers no political party. The format options must be as follows:
“Party Preference __________________” or “No Party Preference.”
(j) The ballot may not indicate that a candidate has been endorsed by or
nominated by any political party.
(k) Each ballot must include a clear and conspicuous statement informing
voters that a candidate’s indicated political party preference does not imply
that the candidate is nominated or endorsed by the political party or that the
political party approves of or associates with the candidate.
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(4) This section may not be construed to amend, repeal, or modify Article
VI, section 2 of the Montana constitution.
(5) This section does not apply to special elections for covered offices.
¶7 Recently, we addressed the requirements of Article XIV, Section 11, of the Montana
Constitution.
The proper inquiry is whether, if adopted, the proposal would make two or
more changes to the Constitution that are substantive and not closely related.
We have employed a definition of substantive as “an essential part or
constituent or relating to what is essential.” Then, numerous factors may be
considered in determining whether the provisions of a proposed
constitutional amendment are closely related, including: whether various
provisions are facially related, whether all the matters addressed by the
proposition concern a single section of the constitution, whether the voters
or the legislature historically has treated the matters addressed as one subject,
and whether the various provisions are qualitatively similar in their effect on
either procedural or substantive law. In summary, if a proposal would effect
two or more changes that are substantive and not closely related, the proposal
violates the separate-vote requirement because it would prevent the voters
from expressing their opinions as to each proposed change separately.
Monforton, ¶ 12 (cleaned up).
¶8 Here, in the Legal Sufficiency Review, the Attorney General asserted that BI-12
fails to comply with Article XIV, Section 11, of the Montana Constitution, in four ways:
(1) Section 3 adds provisions that are not closely related to the creation of a top-four
primary because these provisions collectively “represent a choice [as to] whether Montana
should allow political parties to nominate or endorse candidates on the ballot.”
(2) Section 1 provides a separate decision point for voters because it limits the applicability
of this process to certain public offices while omitting others. (3) Section 3(h) provides a
separate decision point because voters cannot vote for a top-four system that prohibits a
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signature requirement or requires a higher signature threshold. (4) BI-12, as a whole and
specifically within Sections 2 and 3(h), implicates Article IV, Section 3, of the Montana
Constitution, because it limits the Legislature’s constitutional authority to regulate the
administration of elections.
¶9 MER argues, however, that each of these four components is integral to a top-four
primary system. MER asserts that the proposed top-four primary system would not
function correctly if it did not eliminate political party endorsements or nominations as a
prerequisite to appearing on the ballot, identify the offices to which the system would
apply, and limit signature-gathering requirements.
¶10 MER first argues that the Attorney General has misconstrued the effect of
Section 3’s provisions on political party nominations. Although the Attorney General
concluded that these provisions affect political parties’ ability to nominate or endorse
candidates, MER asserts that they do not interfere with political parties’ ability to do so.
MER asserts that the Attorney General erroneously refers to the primary election under
BI-12 as an “all-party” primary when it would actually create an open primary. MER
points to Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 453, 128
S. Ct. 1184, 1192 (2008), in which the U.S. Supreme Court upheld the constitutionality of
a similar open primary system, explaining that Washington’s proposed primary system
“does not, by its terms, choose parties’ nominees. . . . The law never refers to the candidates
as nominees of any party, nor does it treat them as such. . . . Whether parties nominate
their own candidates outside the state-run primary is simply irrelevant.” We agree with
MER that the Attorney General is incorrect as to the effect that Section 3 would have on
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political party nominations; because it does not affect those nominations, it would not
create a separate decision point requiring a separate vote.
¶11 MER next argues that Section 1’s specification of offices to which the open primary
system would apply is closely related to BI-12’s purpose. It asserts that BI-12 would apply
to specific federal and statewide partisan offices but not to non-partisan or local offices. It
argues that the Attorney General erred in concluding that the question of which offices to
include or exclude from this system creates a separate decision point for voters because
non-partisan and local office elections are distinct from federal and state partisan offices,
and it would be impractical to require voters to vote on the inclusion or exclusion of every
office separately. MER argues that requiring a separate vote on each and every elected
office would unduly restrict constitutional change. Mont. Ass’n of Counties v. State, 2017
MT 267, ¶ 30, 389 Mont. 183, 404 P.3d 733 (“MACo”). Rather, MER argues, the
enumerated offices present the voters with a binary choice: apply the top-four system to all
federal and statewide partisan offices or reject it.
¶12 In MACo, ¶ 15, we explained that the separate-vote requirement of Article XIV,
Section 11, of the Montana Constitution, has two objectives: (1) to avoid voter confusion
by ensuring that proposals are not misleading, conceal their effects, or are not readily
understandable; and (2) to avoid “logrolling,” or combining unrelated amendments into a
single measure that might not otherwise obtain majority support. The specification of
offices to which BI-12 would apply does not run afoul of these objectives. Section 1 clearly
sets forth which offices’ elections would be affected by its enactment. It also does not
combine unrelated amendments. As MER explains, BI-12 would affect federal and
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statewide partisan offices but not nonpartisan and local offices. Moreover, in considering
whether the specification of offices is closely related to the creation of a top-four primary
system, we cannot envision how one could design a primary system without specifying the
offices to which it would apply. We therefore conclude that the designation of “covered
offices” in Section 1 does not violate the separate vote requirement of Article XIV, Section
11, of the Montana Constitution.
¶13 Next, MER argues that the Attorney General erred in concluding that the signature
gathering provision in Section 3(h) creates a separate decision point for voters because the
five-percent cap is an integral part of, and thus closely related to, the purpose of a top-four
primary. MER asserts that the purpose of a top-four primary is to ensure that candidates
can reasonably access the ballot. It argues that a reasonable signature cap is essential to
ensuring that the Legislature cannot functionally convert a top-four primary into a top-two
primary by requiring onerous signature gathering that would serve to bar candidates from
the ballot.
¶14 In response, the Attorney General asserts that the Montana Constitution sets
different signature requirements for different activities. It argues that this illustrates that
determining the appropriate signature requirement is a separate consideration for which
voters should be able to vote upon separately.
¶15 In Monforton, we upheld the Attorney General’s rejection of a proposed ballot issue
because, while amending only one section of the Montana Constitution, we observed, “To
say that [Ballot Issue 2’s] proposed amendments concern only one section of the
Constitution is correct only in the sense that all of them are parked there, turning a short
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constitutional section into a long one.” Monforton, ¶ 14. We concluded that the ballot
issue in that case would have both revised the existing language of Article VIII, Section 3,
of the Montana Constitution, and also added a “new function” on the State’s current
valuation duty by also capping ad valorem taxes. Monforton, ¶¶ 15-16. We agreed with
the Attorney General’s explanation that “voters cannot express support for limiting
increase in annual property valuations, while also opposing an overall cap on the level of
taxes levied against a property,” and we thus concluded that the proposed limitation on
property valuations required a separate vote from the limitation on property tax increases.
Monforton, ¶ 17.
¶16 Here, the signature-gathering limitation is not a separate function but is rather, as
MER asserts, an integral part of the top-four primary system BI-12 proposes. We thus
disagree with the Attorney General that the signature-gathering limitation is not closely
related to the remainder of BI-12.
¶17 Finally, MER disagrees with the Attorney General’s assertion that BI-12 is
essentially a separate amendment because it implicates the Legislature’s authority to
regulate elections. In its response to the present petition, the Attorney General asserts,
“BI-12’s implicit limitation of the Legislature’s constitutional authority amounts to yet
another separate amendment requiring a separate vote.”
¶18 Article IV, Section 3, of the Montana Constitution provides, “The legislature shall
provide by law the requirements for residence, registration, absentee voting, and
administration of elections. It may provide for a system of poll booth registration, and shall
insure the purity of elections and guard against abuses of the electoral process.” MER
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argues that BI-12 does not implicate Article IV, Section 3, of the Montana Constitution
because its adoption would not impede, hinder, or invade the Legislature’s authority to
regulate residence, voter registration, absentee voting, or the administration of elections.
¶19 While the Attorney General argues that BI-12 restrains the Legislature’s ability to
regulate primary elections, MER alleges that BI-12 would create a new primary system
that the Legislature would then administer. In MACo, we held that a constitutional
initiative that impliedly changed Montana’s Constitution in numerous ways that we
considered to be both substantive and not closely related was void for violating the
separate-vote requirement of Article XIV, Section 11, of the Montana Constitution. MACo,
¶¶ 52, 54. In the present case, however, we agree with MER that BI-12 does not implicate
Article IV, Section 3, of the Montana Constitution. Article IV, Section 3, grants the
Legislature the authority to “provide by law the requirements,” and BI-12 would not affect
the Legislature’s authority to “provide by law.” Thus there is no separate amendment that
would require a separate vote.
¶20 We therefore hold that the Attorney General erred in concluding that MER’s
proposed ballot issue is legally insufficient because it violates the separate-vote
requirement of Article XIV, Section 11, of the Montana Constitution.
¶21 IT IS THEREFORE ORDERED that the petition for original jurisdiction is
ACCEPTED and GRANTED as an original proceeding in the form of a declaratory
judgment action under M. R. App. P. 14(4).
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¶22 IT IS FURTHER ORDERED that the Attorney General shall prepare a ballot
statement pursuant to § 13-27-226, MCA, and forward the statement to the Montana
Secretary of State within five days of this Opinion and Order.
The Clerk is directed to send a copy of this Opinion and Order to all counsel of
record in this matter.
DATED this 22nd day of November, 2023.
/S/ MIKE McGRATH
We Concur:
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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