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Montana Supreme Court Removes Top-Two Ballot Measure from 2014 Ballot

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.

6 Responses

  1. David

    Good news, but it would have been nice to have Republican candidates explain their reason for wanting this top two primary in front of the voters in Montana.

  2. Jim Riley

    Because the current governor is dependent on the anomalous results of the current system.

    Why do you think the MEA-MFT brought the lawsuit?

  3. Richard Winger

    Jim, you are a Texan. Does the Texas election system produce anomalous results? Both Montana and Texas are open primary states.

    • Jim Riley

      It is not so much the primary system, as the general election format.

      Texas does have primary runoffs, so at least there is not the risk of a candidate getting 20% of one minority faction and then winning with a minority of the total electorate.

      And one party or the other is dominant in most areas of the state, with one party having 80% or more of the votes cast in the recent primary in 80% of the counties. The Democrats had one county with two Democrats – did you ever hear the story about Alfred Packer and the Hinsdale County Democrats?

      Texas also uses an Open Primary format for special elections.

      Montana also uses secret party affiliation (like was formerly used in Idaho). Montana is just a lawsuit away from having that system enjoined. Top 2 would resolve that issue.

      • Richard Winger

        Texas is irrational for having primary run-offs. Texans should promote instant-runoff voting for primaries. Texas taxpayers are burdened by having to pay for two primaries. Texas Democrats have to trudge back to the polls soon for a primary run-off, including one for U.S. Senate in which Kesha Rogers, a Lyndon LaRouche supporter, is on the run-off ballot.

        • Jim Riley

          A runoff provides for an opportunity for debate between the front runners. Ranking candidates for 92 offices is much more of a burden.

          Rogers was the Democratic nominee for Congress in each of the previous two elections. Senate was the top of the ballot race. Surely you aren’t suggesting that Democrats are clueless are you?

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