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Montana top-two primary measure removed from the ballot by Supreme Court

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March 26, 2014

By Ryan Byrne

A legislative referral which faced fierce opposition from Democrats in the Montana Senate was thrown off the ballot by the Montana Supreme Court, in a six to one decision, on March 25, 2014.[1] The Montana Primary Election Revision Measure, known in the legislature as Legislative Referendum No. 127, would have established a “top-two” primary election system.[2] On November 27, 2013, a lawsuit was filed in the Montana Supreme Court by the MEA-MFT, AFL-CIO, Montana Public Employees Association, Montana Human Rights Network and the American Federation of State, County and Municipal Workers. They asked the court to remove the measure from the upcoming general election ballot on account of the measure's title not meeting word-length requirements. A ballot title, in Montana, cannot be longer than one hundred words. The petitioners also claimed that the referral contained more than one subject, as the measure would have both adopted an open primary system and a top-two primary system. Therefore, they concluded that the legislatively-referred state statute was “legally insufficient as a ballot measure.”[3] The following text is the contested ballot title:[2]
AN ACT GENERALLY REVISING ELECTION LAWS; PROVIDING THAT THE TWO CANDIDATES WHO RECEIVE THE MOST VOTES IN CERTAIN PRIMARY ELECTIONS FOR PARTISAN OFFICES ADVANCE TO THE GENERAL ELECTION IRRESPECTIVE OF PARTY AFFILIATION; ELIMINATING SEPARATE PARTY BALLOTS AND PROVIDING FOR ONE PRIMARY BALLOT CONTAINING ALL PRIMARY RACES; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA; AMENDING SECTIONS 2-16- 615, 5-2-402, 5-2-403, 5-2-404, 5-2-406, 7-2-2219, 7-3-176, 7-3-218, 7-3-313, 7-3-412, 7- 3-512, 7-3-704, 7-3-1256, 7-4-2106, 7-4-2206, 7-4-2302, 7-4-2310, 7-4-4112, 13-1-101, 13-1-103, 13-4-102, 13-10-201, 13-10-203, 13-10-204, 13-10-209, 13-10-211, 13-10-301, 13-10-325, 13-10-326, 13-10-327, 13-10-402, 13-10-403, 13-10-404, 13-10-405, 13-10- 501, 13-10-504, 13-10-505, 13-12-201, 13-12-202, 13-12-203, 13-12-205, 13-12-207, 13- 13-214, 13-13-225, 13-13-241, 13-14-111, 13-14-112, 13-14-113, 13-14-114, 13-14-115, 13-14-117, 13-14-118, 13-15-201, 13-15-205, 13-15-206, 13-15-208, 13-15-405, 13-15- 406, 13-15-507, 13-16-101, 13-16-201, 13-16-211, 13-16-412, 13-16-418, 13-16-419, 13- 16-501, 13-17-103, 13-19-205, 13-21-205, 13-25-101, 13-25-201, 13-25-205, 13-25-303, 13-35-106, 13-35-205, 13-35-206, 13-35-207, 13-35-214, 13-35-218, 13-35-221, 13-35- 225, 13-35-226, 13-36-101, 13-36-102, 13-36-103, 13-36-104, 13-36-201, 13-36-202, 13- 36-203, 13-36-206, 13-36-207, 13-36-209, 13-36-210, 13-36-211, 13-36-212, 13-37-127, 13-37-216, 13-37-218, 13-38-101, AND 13-38-201, MCA; REPEALING SECTIONS 13-10-302, 13-10-303, 13-10-305, 13-10-311, 13-10-502, 13-10-503, 13-10-507, 13-10- 601, 13-10-602, 13-10-604, AND 13-38-204, MCA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE.[4]

The primary disagreement between the two parties is whether or not the above “numbers,” which are listed statutes, count as “words.” According to the Supreme Court, there were three possible ways to count the statutes: "[1] ignore all the statutory citations; [2] count each of the statutory citations as one word; or [3] treat each of the statutory citations as the number of words required to say the citation (“13-12-203” would be counted as “thirteen, twelve, two zero three” for a total of five words)." The only way," however, "to find that the title complies with § 5-4-102, MCA, is to ignore each of the statutory citations." After examining similar court cases and consulting with a number of dictionaries, the majority concluded, "The usual and ordinary meaning of a “word” includes any character or set of charters separated by whitespace, which includes numbers. This definition of “word” is widely supported." They also noted, "The Legislature chose to place the 100-word limitation into the statute and must comply with its own law when referring a matter to the people for a vote." Secondly, the Supreme Court found the ballot title "complicated and confusing." The point of the ballot title requirement is "to insure that voters are not misled or confused by complex titles of the measure in the ballot language." They stated that understanding all the "numbers" would take even "persons well-versed in the law a substantial amount of time and study to understand the details and implications of these changes."[5] Thus, they removed the measure from the ballot.

The author of the court's decision was Chief Justice Mike McGrath. Justices Patricia Cotter, Michael E Wheat and Jim Rice all concurred. The lone dissenting judge was Justice Laurie McKinnon.[5]

Senate President Jeff Essmann (R-28) argued, "It seems like the court has taken an extremely technical approach toward interpretation of these statutes by counting every listed number as a word, therefore once again frustrating the popularly elected Legislature from placing a measure before voters for their consideration."[1]

Two legislative referrals remain on the ballot in Montana and a number of initiative campaigns are currently attempting to collect sufficient signatures by June 20, 2014 to get their measures placed on the ballot.

See also