Montana C-48, Search Warrant for Electronic Data Amendment (2022)

Montana C-48, Search Warrant for Electronic Data Amendment
Election date November 8, 2022
Topic Law enforcement
Status a Approved
Type Constitutional amendment	Origin State legislature

The Montana C-48, the Search Warrant for Electronic Data Amendment, was on the ballot in Montana as a legislatively referred constitutional amendment on November 8, 2022. The ballot measure was approved.

A "yes" vote supported amending the state constitution to require a search warrant to access electronic data or electronic communications.

A "no" vote opposed amending the state constitution to include electronic data or communications in the section that governs searches and seizures.

Election results

Montana C-48
Result		Votes	Percentage
Yes		365,091	82.33%
No		78,334	17.67%

Results are officially certified.

Source

Overview

What did C-48 do?

See also: Text of measure

C-48 added language to the Montana Constitution that requires a search warrant to access electronic data or electronic communications. The amendment also states that electronic data and electronic communications would be secure from unreasonable searches and seizures.

Have other states included similar protections for electronic data?

See also: Related ballot measures

At the time of the election, Michigan and Missouri were the only states to provide explicit protection from unreasonable searches and seizures in their respective state constitutions. In 2020, Michigan voters passed Proposal 2, which amended the state constitution to require a search warrant to access a person's electronic data and electronic communications. In 2014, Missouri approved Amendment 9, which added electronic communications and data to Missouri constitutional prohibition against unreasonable searches and seizures.

How did C-48 get on the ballot?

See also: Path to the ballot

C-48 needed a two-thirds (66.67 percent) supermajority vote in both the Montana State Senate and the Montana House of Representatives to be referred to the ballot. Senate Bill 203 (SB 203) was introduced on February 9, 2021, by Sen. Kenneth Bogner (R). The state Senate approved the bill on February 23, 2021, in a vote of 50 to 0. On April 22, 2021, the state House approved the bill in a vote of 76-23 with one absent. One Republican representative and 22 Democratic representatives voted against it.

Sen. Bogner, the amendment's sponsor, said, "Senate Bill 203 is about updating Montana’s Constitution to reflect life in the 21st Century and make it explicitly clear that our digital information is protected from unreasonable government searches and seizures. Today, so much of our private lives—financial information, communication with family and friends, medical information, and much, much more—is contained on and transferred electronically among many devices and computer systems. The government should need a warrant before accessing or gathering Montanans electronic data or communications."

Text of measure

Ballot question

The ballot question was as follows:

“

An act submitting to the qualified electors of Montana an amendment to Article II, section 11, of the Montana Constitution to explicitly include electronic data and communications in search and seizure protections. [ ] YES on Constitutional Amendment [ ] NO on Constitutional Amendment

”

Constitutional changes

See also: Article II, Montana Constitution

The measure amended section 11 of Article II of the state constitution. The following underlined text was added, and struck-through text was deleted:

Searches and Seizures

The people shall be secure in their persons, papers, electronic data and communications, homes and effects from unreasonable searches and seizures. No warrant to search any place, or to seize any person or thing, or to access electronic data or communications shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.

Readability score

See also: Ballot measure readability scores, 2022

Using the Flesch-Kincaid Grade Level (FKGL) and Flesch Reading Ease (FRE) formulas, Ballotpedia scored the readability of the ballot title for this measure. Readability scores are designed to indicate the reading difficulty of text. The Flesch-Kincaid formulas account for the number of words, syllables, and sentences in a text; they do not account for the difficulty of the ideas in the text. The state legislature wrote the ballot language for this measure.

The FKGL for the ballot title is grade level 21, and the FRE is -2. The word count for the ballot title is 31.

Support

Supporters

Officials

• State Sen. Kenneth Bogner (R)
• State Sen. Jason Ellsworth (R)
• State Rep. Daniel Zolnikov (R)

Organizations

• Americans for Prosperity Montana
• Frontier Institute
• Libertas Institute

Arguments

• State Sen. Ken Bogner (R): "Senate Bill 203 is about updating Montana’s Constitution to reflect life in the 21st Century and make it explicitly clear that our digital information is protected from unreasonable government searches and seizures. Today, so much of our private lives—financial information, communication with family and friends, medical information, and much, much more—is contained on and transferred electronically among many devices and computer systems. The government should need a warrant before accessing or gathering Montanans electronic data or communications."
• Kendall Cotton, president and chief executive officer of the Frontier Institute: "Montanans are overwhelmingly concerned about the privacy of their personal information and they want more protections from mass government surveillance. Lawmakers ought to listen to them. Updating Montana’s Constitution with expanded privacy protections will send a strong message that state government is making our rights a priority."
• State Sen. Jason Ellsworth (R): "SB 203 updates our outdated laws that have not yet caught up to the realities of the 21st Century. ... We've already required a warrant to access cellphone location data, a warrant to access electronic devices, and a warrant to access digital communications in state law. Senate Bill 203 would make those protections even more substantial by asking voters to insert them into the Montana Constitution rather than just in law."

Opposition

If you are aware of any opponents or opposing arguments, please send an email with a link to editor@ballotpedia.org.

Arguments

• Mark Murphy, representing the Montana Association of Chiefs of Police: Murphy said that the Association opposed the amendment because it could produce unintended consequences, especially with regards to investigating internet crimes against children. He said, "What I see in this change is a fairly large opportunity for unintended consequences."

Campaign finance

See also: Campaign finance requirements for Montana ballot measures

If you are aware of a committee registered to support or oppose this measure, please email editor@ballotpedia.org.

	Cash Contributions	In-Kind Contributions	Total Contributions	Cash Expenditures	Total Expenditures
Support	$0.00	$0.00	$0.00	$0.00	$0.00
Oppose	$0.00	$0.00	$0.00	$0.00	$0.00
Total	$0.00	$0.00	$0.00	$0.00	$0.00

Background

Carpenter v. United States (2018)

In Carpenter v. United States (2018), the U.S. Supreme Court ruled in a 5-4 decision that law enforcement must obtain a warrant to access cell phone tracking data. Chief Justice John Roberts authored the opinion for the majority and said, "The Government's acquisition of the cell-site records was a search within the meaning of the Fourth Amendment . . . [and] the Government must generally obtain a warrant supported by probable cause."

Justice Anthony Kennedy dissented from the court's opinion and judgment, joined by Justices Clarence Thomas and Samuel Alito. Kennedy argued that the court's ruling "puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government but also by law enforcement in every State and locality throughout the Nation."

Riley v. California (2014)

In Riley v. California (2014), a unanimous U.S. Supreme Court ruled that a warrant is necessary to search a suspect's cellphone during an arrest. Chief Justice John Roberts wrote that while a police officer can inspect the "physical aspects of a phone to ensure that it will not be used as a weapon," a police officer cannot search a phone's data without a warrant. Chief Justice Roberts stated, "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life'… The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."

Related ballot measures

As of November 2022, Michigan and Missouri were the only states to provide explicit protection from unreasonable searches and seizures in their respective state constitutions.

• a Michigan Proposal 2 (2020): The constitutional amendment requires a search warrant to access a person's electronic data and electronic communications.
• a Missouri Amendment 9 (2014): The constitutional amendment added electronic communications and data to the Missouri Constitution's prohibition against unreasonable searches and seizures.

In 2018, New Hampshire approved a similar amendment that stated, "An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent."

Ballot measures in Montana

See also: History of Initiative & Referendum in Montana and List of Montana ballot measures

• A total of 65 measures appeared on statewide ballots in Montana from 1996 to 2020.
• From 1996 to 2020, the number of measures on statewide ballots during even-numbered years ranged from two to eight.
• Between 1996 and 2020, an average of between five measures appeared on the ballot in Montana during even-numbered election years.
• Between 1996 and 2020, about 64.6% (42 of 65) of the total number of measures that appeared on statewide ballots were approved, and about 35.4% (23 of 65) were defeated.

Path to the ballot

See also: Amending the Montana Constitution

To put a legislatively referred constitutional amendment before voters, a two-thirds (66.67%) vote of all members of the Montana State Legislature was required.

Senate Bill 203 (SB 203) was introduced on February 9, 2021, by Sen. Kenneth Bogner (R). The state Senate approved the bill on February 23, 2021, in a vote of 50 to 0. On April 22, 2021, the state House approved the bill in a vote of 76-23 with one absent.

Vote in the Montana State Senate February 23, 2021
Requirement: Two-thirds (66.67 percent) vote of all members of the legislature as a whole, whether in a joint session or separate sessions
	Yes	No	Not voting
Total	50	0	0
Total percent	100%	0%	0%
Democrat	19	0	0
Republican	31	0	0

Vote in the Montana House of Representatives April 23, 2021
Requirement: Two-thirds (66.67 percent) vote of all members of the legislature as a whole, whether in a joint session or separate sessions
	Yes	No	Not voting
Total	76	23	1
Total percent	76.0%	23.0%	1.0%
Democrat	10	22	1
Republican	66	1	0

How to cast a vote

See also: Voting in Montana

Click "Show" to learn more about voter registration, identification requirements, and poll times in Montana.

How to cast a vote in Montana

Poll times In Montana, polling place must be open from 7:00 a.m. to 8:00 p.m., although in areas with fewer than 400 registered voters, polling places may open as late as 12:00 p.m. Registration Check your voter registration status here. To register to vote in Montana, each applicant must be a citizen of the United States, a non-temporary resident of Montana for at least 30 days prior to the election, and at least 18 years old by the day of the election. People serving a felony sentence in a penal institution and those who have been declared by a court to be of unsound mind are not eligible to vote. An individual can register to vote in person by completing a registration application at their county election office. They can register by mailing the application to their county election administrator or submitting it when applying for or renewing a driver’s license or state ID. Applicants may also register to vote at their county election offices, certain designated locations, or at their designated polling location on Election Day. Automatic registration See also: Automatic voter registration Montana does not practice automatic voter registration. Online registration See also: Online voter registration Montana does not permit online voter registration. Same-day registration See also: Same-day voter registration Montana allows same-day voter registration. An eligible voter may register before noon on Election Day. Residency requirements In order to register to vote in Montana, applicants must have lived in the state for at least 30 days prior to the election. Montana law says an individual does not gain residency if they relocate for, "temporary work, training, or an educational program, without the intention of making that county or the state the individual's permanent home at the conclusion of the temporary work, training, or educational program." Verification of citizenship See also: Laws permitting noncitizens to vote in the United States Montana does not require proof of citizenship for voter registration. An individual applying to register to vote must attest that they are a U.S. citizen under penalty of perjury. All 49 states with voter registration systems require applicants to declare that they are U.S. citizens in order to register to vote in state and federal elections, under penalty of perjury or other punishment. Seven states — Alabama, Arizona, Georgia, Kansas, Louisiana, New Hampshire, and Wyoming — have laws requiring verification of citizenship at the time of voter registration, whether in effect or not. In three states — California, Maryland, and Vermont — at least one local jurisdiction allows noncitizens to vote in some local elections. Noncitizens registering to vote in those elections must complete a voter registration application provided by the local jurisdiction and are not eligible to register as state or federal voters. Verifying your registration The site My Voter Page, run by the Montana secretary of state’s office, allows residents to check their voter registration status online. Voter ID requirements Montana requires voters to present identification while voting. Montana's voter identification requirements are outlined in Section 13-13-114 of Montana Code. The law states, "Before an elector is permitted to receive a ballot or vote, the elector shall present to an election judge one of the following forms of identification showing the elector's name that is current, valid, and readable:" “ (i) a Montana driver's license, Montana state identification card issued pursuant to 61-12-501, military identification card, tribal photo identification card, United States passport, or Montana concealed carry permit, or student photo identification card issued by the Montana university system or a school that is a member of the national association of intercollegiate athletics; or (ii) (A) a current utility bill, bank statement, paycheck, government check, or other government document that shows the elector's name and current address; and (B) photo identification that shows the elector's name. ”

See also

2022 measures

• 2022 ballot measures
• Law enforcement on the ballot

Montana

• Montana ballot measures
• Montana ballot measure laws

News and analysis

• Ballot measure lawsuits
• Ballot measure readability
• Ballot measure polls

External links

• SB 203 full text