HELENA — Montana voters who head to the polls next month to choose a president may be surprised to also find ballot questions on medical marijuana, abortion, illegal immigrants, whether corporations are people and health insurance mandates.

Those five measures have been overshadowed in a packed ballot that also includes high-stakes U.S. Senate and governor's races, an open congressional seat and a lengthy list of legislative and judicial candidates.

Each measure deals with a contentious issue that has been the source of heated debate.

But two of them would not be enforceable if passed because they conflict with federal law, a constitutional scholar said. Those two measures deal with matters recently decided by the U.S. Supreme Court.

The first calls for a prohibition on governments from mandating that people buy health insurance. The second calls for a state policy that says corporations are not people entitled to constitutional rights and directs Montana's congressional delegation to introduce a constitutional amendment saying as much.

If there is any conflict between state and federal laws, the federal law wins. That's called the Supremacy Clause of the U.S. Constitution, said University of Montana law professor Anthony Johnstone.

"This means that while the Montana Legislature or the people of Montana may pass laws that conflict with federal law, such laws are unenforceable as a practical matter," Johnstone said in an analysis of the ballot questions in response to an Associated Press query.

The health insurance mandate question is a legislative referendum placed on the ballot by majority Republicans who thought the measure had a better chance of passing by popular vote than getting past Democratic Gov. Brian Schweitzer. The question was drafted in reaction to the health insurance mandate in President Barack Obama's Affordable Care Act, which was opposed by Republicans.

But the measure, called LR-122, was placed on the ballot before the Supreme Court ruled this summer that Obama's law was constitutional and Congress has the power to impose the insurance mandate and the tax penalty enforcing it.

"So if enacted as state law, LR-122 would offer no legal defense to avoid the federal tax imposed by the Affordable Care Act," Johnstone said.

The ballot question that opposes constitutional rights for corporations was spurred by the U.S. Supreme Court's 2010 Citizens United decision that ruled a ban on corporate spending in federal elections was a restriction of free speech.

This year, the Supreme Court upheld that decision and applied it to state election laws by ruling Montana's 100-year-old Corrupt Practices Act unconstitutional, and allowing some direct corporate spending in elections.

Given the Supreme Court's ruling, that provision also wouldn't be enforceable, Johnstone said. In addition, voters can't direct the congressional delegation to act because once elected, the powers and duties of members of Congress are determined by federal, not state law, he said.

A third ballot question is a voter referendum of a law passed last year, and only three other voter referenda have appeared on the ballot since 1993.

The ballot measure asks voters to affirm or repeal a law that restricts who qualifies to register for medical marijuana, limits the number of people a provider can distribute it to and bans profits or compensation for providing it. A yes vote is to keep the new law in place, while a no vote is to repeal the new law and reinstate the 2004 voter-approved medical marijuana law.

Supporters of the new law say the sudden boom in registered users and providers after 2009 created a retail industry not foreseen by voters who approved medical marijuana in 2004. The boom came after a Department of Justice memo that said prosecutors would not pursue individuals who follow state law, and supporters of the restrictions say a multimillion dollar industry rose due to gray areas in the law.

Opponents say the new law is too restrictive, and is a repeal bill in disguise that goes against the will of the people who voted in medical marijuana in 2004. The restrictions will prevent seriously ill people from receiving the drug they need to eliminate pain, initiative opponents Lori Burnam, Sarah Baugh Combs and Dr. Edwin Stickney said in a prepared statement.

Medical marijuana advocates challenged the new law in a lawsuit, and the Montana Supreme Court this summer upheld the constitutionality of the ban on profits and limiting the number of patients per provider to three.

The two remaining referenda were authored by Republican lawmakers. One would require parents to be notified prior to an abortion for a girl under 16. A doctor who provides an abortion without proper notification could receive a six-month prison sentence and a $500 fine, according to the initiative.

Supporters say parents should be involved in such an important decision, and the child can petition a youth court judge to obtain a waiver of that notification in some cases.

Opponents argue that the government should stay out of such decisions and the right to privacy extends to all Montanans in making private medical decisions. This initiative would re-enact a parental notification law that was found to be unconstitutional in 1999 without addressing any of the problems found then, opponents said.

The last ballot question would deny some state services to illegal immigrants. The initiative would require every person who seeks any state service — from student aid to disability benefits to a state job — to prove that he is a U.S. citizen or in the country legally.

Republican state Sen. Jim Shockley and Rep. David Howard wrote in support of the initiative, saying it would prevent illegal immigrants from obtaining services at the expense of citizens and prevent them from taking jobs at a time of high unemployment.

Opponents say the initiative would trade in Montana's tradition of being open and friendly for bureaucratic red tape and identity checks whenever a person applies for a state service, and it would misplace the burden of identifying illegal immigrants on employers.

(5) comments


"If there is any conflict between state and federal laws, the federal law wins. That's called the Supremacy Clause of the U.S. Constitution, said University of Montana law professor Anthony Johnstone."

He really needs to take some US Constitution classes and read some laws on it becasue he is incorrect about the federal law winning. It is an illegal law if it is not made "in pursuance of" the Constitution. Maybe he does not understand what "in pursuance of" means, but he could have looked it up before giving you the wrong information.

The US Constitution is the Supreme Law of this land. That does NOT mean that the federal government is supreme in anything except what is specifically assigned the three branches by the US Constitution.

As the Tenth Amendment says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.” – United States v. Sprague, 282 U.S. 716, 733

The issue of power – and especially the great potential for a power struggle between the federal and the state governments – was extremely important to the America’s founders. They deeply distrusted government power, and their goal was to prevent the growth of the type of government that the British has exercised over the colonies.

Adoption of the Constitution of 1787 was opposed by a number of well-known patriots including Patrick Henry, Samuel Adams, Thomas Jefferson, and others. They argued that the Constitution would eventually lead to a strong, centralized state power which would destroy the individual liberty of the People. Many in this movement were given the tag “Anti-Federalists.”

The Tenth Amendment was added to the Constitution of 1787 largely because of the intellectual influence and personal persistence of the Anti-Federalists plsu their allies.

The Tenth Amendment was written to emphasize the limited nature of the powers delegated to the federal government. In delegating just specific powers to the federal government (listing those powers), the states and the people, with some small exceptions, were free to continue exercising their sovereign powers. Each state has a Republican type of government.


"passed because they conflict with federal law, a constitutional scholar said."

That "scholar" he was entirely incorrect. The federal government is NOT the Supreme Law of this land, the US Constitution is.

The powers of the government are limited by the Constitution.

The Constitution is "the fundamental and paramount law of the nation, and consequently…an act of the legislature repugnant to the constitution, is void."

The Constitution is "the Supreme Law of the land," and any act of the government must be consistent with it.

Only those acts made "in pursuance of" the Constitution also have this rank. ("in pursuance of" is really important because it means that EVERY law, bill, amendment, etc must at the very least follow the Constitution. It can be made a stronger law. Ex: Freedom of Speech: All ways that people use speech - talking, sign language, writing, on a phone, computer, etc must not be abridged.

(Remember that if you have a right to life; you have no right to take anothers life rule applies here also)

Judges, when they rule on laws, must often choose between the Constitution and a law.

Since the Constitution is the supreme law of the land, they MUST invariably choose to enforce the Constitution and ignore the law. (my emphasis)

Doing so renders the law null and void, because ALL other judges must do the same.

Hope this helps you to understand what you wrote based on erroneous information is incorrect, at least the sections that apply to that incorrect information on the US Constitution.


Dear Journalist,

Please do your research....
"Medical marijuana advocates challenged the new law in a lawsuit, and the Montana Supreme Court this summer upheld the constitutionality of the ban on profits and limiting the number of patients per provider to three."
You may want to visit the Medical Marijuana site and get your facts straight before you mention this and make people react poorly. FYI, Here are the facts:
On September 25, 2012, the Plaintiffs in Montana Cannabis v. State, 2012 MT 201 petitioned the Supreme Court for a rehearing. This effectively means the Supreme Court’s September 11, 2012 decision to lift the injunction on the Montana Marijuana Act, has been postponed. The injunction was to be lifted on September 26, 2012. The Attorney General’s Office and the Supreme Court have time to respond to the petition for rehearing; it is not known how long this will take. No further action will be taken by the Department to limit a provider’s number of patients (per the Montana Marijuana Act) until the petition for rehearing is resolved and the case is remanded to the District Court. While the Department cannot predict when the case will be remanded to the District Court, it will update the program website as soon as more information becomes available.
The program website is http://www.dphhs.mt.gov/marijuanaprogram.


Nice they are asking us again on the medical pot thing we approved in 2004. Just could not figure out a way to regulate that industry? Really? Oh sorry, I forgot you had the idiot teabaggers running the show in the Legislature. They know all things so wanted to repeal what we already approved rather than fix it...what a farce.


Because the last thing we need here in Montana is a multi-million dollar industry... or options on our ballot that make sense.

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