On March 25, the Montana Supreme Court ruled 6-1 that the top-two ballot measure the legislature put on the 2014 ballot has technical flaws. MEA-MFT v State of Montana, OP 13-0789. Therefore, it cannot appear on this year’s November ballot. Here is the ten-page opinion, along with a two-page concurrence, and a 10-page dissent by Justice Laurie McKinnon.
Montana law says the title of a ballot measure put on the ballot by the legislature can’t exceed 100 words. The legislature had written a ballot title of almost 200 words. The title is lengthy because it includes all the election code sections being amended. The legislature had then defended itself in this lawsuit by saying that code section references, which are numbers, aren’t words. But the majority on the Supreme Court disagreed. Five of the justices also felt the title is confusing.
The 2013 session of the legislature had put the measure on the ballot because the majority of legislators are Republicans, and were upset that in 2012, the Libertarian Party nominees for Governor and U.S. Senator prevented either major party nominee from receiving a majority of the vote. Democrats won both elections. The Republican majority in the legislature in 2013 then determined that if Montana had a top-two system, there would be no more minor party candidates on the general election. The majority didn’t simply pass a bill for a top-two system because if it had passed an ordinary bill, the Democratic Governor would have vetoed it. But by putting a ballot measure on the ballot, the legislature was able to bypass the Governor.
If the legislature were in session in 2014, in theory the majority could pass a new top-two measure that has fewer than 100 words in its title. The opinion says there is no requirement that the title include all the code sections being amended. However, the legislature is not in session this year. Thanks to Mike Fellows for this news.