Court blocks ‘top-two’ primary referendum from appearing on 2014 ballot – Lee State Bureau, March 26, 2014

March 26, 2014

Categories: Legislature, News

By Chuck Johnson

HELENA — The Montana Supreme Court on Tuesday blocked the state from placing on the November ballot a legislative referendum to change how the state’s primary elections work.

The Republican majorities in the House and Senate in 2013 put Legislative Referendum 127 on the ballot.

Some unions and another group went directly to the Supreme Court to ask that it be stripped from the ballot on legal grounds.

In a 6-1 decision, the court majority ruled that the title of the referendum “does not comply with the plain meaning of the Legislature’s 100-word limit” in state law.

The title’s listing of approximately 100 separate laws — not the actual laws themselves, but their numbers in state law books, such as 13-1-1-1 — that would be amended by the referendum, along with 11 laws subject to repeal, increased the word count to far more than 100, the court said.

“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 the vote,” Chief Justice Mike McGrath wrote in the majority opinion. “Furthermore, the title of LR-127 is not a mere technical violation of the statute, but is substantially in excess of the 100 word limit imposed by the Legislature.”

The court also found the referendum’s title to be “complicated and confusing.”

McGrath said the majority disagreed with Attorney General Tim Fox’s conclusion that the referendum didn’t conflict with another ballot issue and was “legally sufficient.”

In her dissent, Justice Laurie McKinnon said she believed the attorney general’s statement of purpose satisfied the legal requirements.

Fox’s spokesman, John Barnes, said later, “Based on this new guidance from the Montana Supreme Court, the legislature will need to revisit its rules governing the submission of referendums to voters.”

This referendum sought to change Montana’s primary elections by having the names of all candidates for a particular office — Democratic, Republican, Libertarian and other minor-party candidates — appear on the same ballot in the June primary. Voters would cast their ballot for someone from the full list of candidates.

The top two vote-getters for each office, regardless of party, would advance to the November general election, under the referendum.

Under Montana’s current primary system, each major political party has its own primary election ballot. The Democrat and Republican candidate who get the most votes for each office in each party primary then move on to the general election. The names of third-party candidates such as Libertarians are added to the Democratic and Republican candidates’ names on the general election ballot.

Eric Feaver, president of the MEA-MFT, the union that was the lead plaintiff, was pleased by the court’s decision.

“The Legislature has to comply with its own laws,” he said. “If you’re going to propose a legislative referendum, then do it according to your own rules.”

Feaver said he believes Republican legislators proposed the referendum “to eliminate third-party candidates in general election, plain and simple.”

The “top-two” primary referendum was based on a similar primary law in California, he said. “Bless the court for sparing us from another California event in Montana.”

Senate President Jeff Essmann, R-Billings, criticized the decision.

“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,” he said.

Essmann said that the new primary system was not intended to eliminate third-party candidates.

“The purpose of the referendum was to give Montana voters the decision on whether they wished to elect the elected officials in Montana by a majority of the vote,” not a minority, he said.

In 2012, Democrat U.S. Jon Tester was re-elected with 49 percent of the vote, while Democrat Steve Bullock won the governor’s race with 49 percent.

Besides MEA-MFT, other joining in the challenge of the referendum were the Montana AFL-CIO, Montana Public Employees Association, Montana Human Rights Network and American Federation of State, County and Municipal Employees.

Passage of this legislative referendum and another involving voter registration led to one of major partisan fights in the 2013 Legislature.

Democratic senators pounded their desks in protest as Republicans rammed the two referendum bills through the Senate. Republican leaders ignored a Democratic motion intended to stall the votes, which would have caused the bills to miss a key deadline.

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