HELENA – The Montana Supreme Court on Tuesday blocked the state from placing on the November ballot a legislative referendum to change how 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 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 Democratic and Republican candidates 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 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 elections, 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, others 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.

Chuck Johnson is chief of the Lee Newspapers State Bureau in Helena. He can be reached by email at chuck.johnson@lee.net or by phone at (406) 447-4066 or (800) 525-4920.

(4) comments


OR: from the non-fantasy side of reasoning, this would prevent Democrats from entering a Libertarian with absolutely no chance of winning, only to be a spoiler to take votes from the conservative. Or: since when is a number a word, especially when the numbers are linked with hyphens? Inexcusable for totally politically motivated Supreme Court Justices, even a 5th grader knows that that is a stretch. Another Democrat ploy to win at all costs, in any way possible. When was the last time that the Democrats ever put something on a ballot that wasn't worded in a confusing fashion with the singular purpose of confusing the low-information voters. Only a Democrat can be proud of their bag of dirty tricks. The Democrats will only retort with the flippant "more Republican whining." From the state (sic) Supreme Court & down the dribble line. Winning with a minority of votes is never fair or just; but it is one of the favorite methods of the fading Montana Democrat Party. This next election is going to be Beautiful !!! Would it be a stretch, montanamuralist, to put the "D" after your candidates names in red, to reduce confusion? walter12 would probably be in favor of that, too. We like to think of it as a bulls eye.


This is what you get when you elect tea party members to the legislature. They will pound through legislation, whether it's legal or not. Elect the far right tea party candidates of the Republican party this election versus the regular Republican candidates, and the next legislature will be total anarchy. Essmann, Wittich, and company need to go. They are not interested in what's best for Montana, only what's best for the tea party.

Greg Strandberg
Greg Strandberg

Woops! This almost seems like a joke now. How are they writing these bill up there - pin the tail on the donkey?


So the Republicans now have to go out and work to convince voters their ideas are better than the Libertarian candidate. What a shame...sorry, you can't cheat your way to power Mr. Potter Party. Nice try but just let people vote and if they like your candidate, he will get elected...no need to start playing games with that concept. Oh, I forgot, it is about power and forget fairness. Same principle you operate in voter suppression when there is no problem with voter fraud. There is a problem with the employment rate though. If you want to focus attention on something why not help people get jobs???? I know, you have no interest in that issue...just voter manipulation...

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