A member of the house of representatives shall be elected for a term of two years and a member of the senate for a term of four years each to begin on a date provided by law. One-half of the senators shall be elected every two years.

History

Sources

1884 Montana Constitution (proposed)

Senators shall be elected for the term of four years, and Representatives for the term of two years, except as is otherwise provided in this Constitution.1884 Mont. Const. art IV, § 2 (proposed).

After the first session of the Legislative Assembly of the State, and until otherwise provided by law, the Senate shall consist of twenty-one members, and the House of Representatives of forty-five members. It shall be the duty of the first Legislative Assembly to divide the State into Senatorial and Representative districts, but there shall be at least one Senator from each county. The Senators shall be divided into two classes; those elected in districts designated by even numbers shall constitute one class, and those elected in districts designated by odd numbers shall constitute the other class, except that Senators elected in each of the districts having more than one Senator shall be divided as equally as may be between the two classes. The Senators of one class shall hold for two years, those of the other class shall hold for four years, to be decided by lot between the two classes, so that one half of the Senators, as nearly as practicably, may be elected biannually thereafter.1884 Mont. Const. art IV, § 4 (proposed).

The Legislative Assembly (except the first), shall meet at twelve o’clock noon, on the second Tuesday after the first Monday of January next succeeding the general election provided by law, and at twelve o’clock noon, on the second Tuesday after the first Monday of January of each alternate year thereafter, and at other times when convened by the Governor. The term of service of the members thereof shall begin the next day after their election, until otherwise provided by law.1884 Mont. Const. art IV, § 6 (proposed).

1889 Montana Constitution

Senators shall be elected for the term of four years, and Representatives for the term of two years, except as is otherwise provided in this Constitution.1889 Mont. Const. art V, § 2.

The legislative assembly (except the first) shall meet at the seat of government at twelve o’clock noon, on the first Sunday of February, next succeeding the general election Provided by law, and at twelve o’clock noon, on the first Sunday of February, of each alternate year thereafter, and at other times when convened by the Governor. The term of service of the members thereof shall begin the next day after their election, until otherwise provided by law; provided, that the first legislative assembly shall meet at the seat of government upon the proclamation of the Governor after the admission of the state into the Union, upon a day to be named in said proclamation, and which shall not be more than fifteen nor less than ten days after the admission of the state into the Union.1889 Mont. Const. art V, § 6.

Other Sources

1876 Colorado Constitution, article V, § 3: "Senators shall be elected for the term of four years, except as hereinafter provided, and Representatives for the term of two years."Mont. Const. Conv. Research Memorandums, 1971-1972, No. 4, Sources of the Montana Constitution, at 3.

Comparison of the Montana Constitution with the Constitutions of Selected Other States: "[This section] was adopted without debate from the 1884 Constitution. (Proceedings, p. 597). This section has never been amended nor have any amendments been proposed to alter its 1889 wording.

ALASKA: . . . The term of representatives shall be two years and the term of senators, four years. One-half of the senators shall be elected every two years (Part of Section 3, Article II).

HAWAII: . . . The term of office of the members of the house of representatives shall be two years beginning with their election and ending on the day of the next general election, and the term of office of members of the senate shall be four years beginning with their election and ending the day of the second general election after their election.(Part of Section 5, Article III).

MICHIGAN: The senate shall consist of 38 members . . .
for four year terms concurrent with the term of the office of the governor (Part of Section 2, Article IV). The house of representatives shall consist of 110 members elected for two year terms.(Part of Section 3, Article IV).

NEW JERSEY: The senate shall consist of forty senators . . . elected for four year terms . . . (Part of Section 2,
Article IV). The General Assembly shall consist of eighty members . . . elected for two year terms . . . (Part of Section 2, Article IV). PUERTO RICO: Members of the Senate and the House of Representatives shall be elected by direct vote at each general election . . . (Part of Section 2, Article III).

MODEL STATE CONSTITUTION: BICAMERAL ALTERNATIVE: Assembly- men shall be elected by the qualified voters of the state for the term of two years and senators for the term of six years. (Section 4.03, Article IV).”Mont. Const. Conv. Occasional Papers, 1971-1972, Report No. 5, Comparison of the Montana Constitution with the Constitutions of Selected Other States, at 2.

Legislative Council Report on the Montana Constitution: Per House Resolution No. 17 and Senate Resolution 22, the Legislative Council conducted a study to determine "whether or not the present [1889] constitution was adequately serving the needs of the people of Montana and to report those findings to the forty-first legislative assembly." The Legislative Council reported as follows for Sec. 2 of the 1889 Montana Constitution: “All six constitutions used for comparative purposes contain similar provisions although one does not specify the terms of office; five fix the term of office for representative at two years; four fix the term of office for senator at four years and one fixes the term for senator at six years. The Council concludes that this section is adequate.”Mont. Const. Conv. Occasional Papers, 1971-1972, Report No. 6, Legislative Council Report on the Montana Constitution, at 21.

Historical Context: “The election of legislators for a fixed period of time, such as for two or four years, originated in America. In this country, a legislature or a congress has a predetermined life set by
a written constitution. In England, when the American colonies and states developed, the length of Parliament's sessions and
its members' terms were not fixed. The king could dissolve Parliament and issue writs for a new one whenever he wished. Thus, the king could dissolve a Parliament of an independent nature and continue the life of a docile one, such as the Parliament under Charles II, which lasted nearly eighteen years. In fact when the states were forming. Parliament was governed
by the Septennial Act which stated that no Parliament could
last longer than seven years. During the colonial period, the American legislatures and the Royal Governors constantly battled over this subject. The Royal Governors believed that to be compelled by an agreement to hold frequent elections was an infringement upon their prerogatives, while the colonists believed that not to have such a guarantee was an infringement of their liberties and rights. Despite the Royal Governors, most of the New England colonies won the right to annual elections (legislative terms of one year). When the colonies became states, all but South Carolina incorporated into their constitutions this New England safeguard against ‘slavery.’

In support of frequent and fixed elections, John Adams wrote: ‘That the representatives may often mix with their constituents, and frequently render them an account of their stewardship, elections ought to be frequent: ‘Like bubbles on the sea of matter borne, they rise, they break, and to that sea return.’

Adams stated a maxim that was to become the cry voiced whenever anyone proposed the lengthening of legislative terms: ‘These elections may be septennial or triennial; but for my part, I think they ought to be annual; for there is not in all science a maxim more infallible than this, where annual elections end, there slavery begins.’

The states held annual elections under the Articles of Confederation, but in the federal Convention of 1787, the delegates went to biennial elections in the hope they would create a more successful government than the one which existed under the Confederation. The Federalist Papers devoted Numbers 51 and 52 to arguments for biennial elections as "neither too frequent nor too rare;" it was said that more time was needed to frame federal legislation than state legislation and thus that annual elections would be too frequent. Despite the federal lead, however, a majority of the states retained annual elections until the 1830s when the legislatures began to become discredited in
the public eye. During this period the move to biennial elections increased dramatically.

Montana entered the union with two-year terms for its representatives, staggered four-year terms for its senators and biennial legislative elections. Article V, Section 2 of the Montana Constitution reads: ‘Senators shall be elected for the term of four years, and representatives for the term of two years, except as otherwise provided in this constitution.’

Today no state holds annual legislative elections. Massachusetts held annual elections from 1642 until 1918 when it went to biennial elections. In twelve states, senators and representatives alike hold two-year terms and in four states they both hold four-year terms. The members of Nebraska's unicameral legislature serve four-year terms. By far the most common scheme, however, is to have representatives serve for two years and senators for four years. Thirty-three states use this approach (see Table 1). In most of the thirty-three states of the last category, the senators serve four-year terms staggered so that some seats are up for election every two years. Overlapping senate terms in effect create a continuous body.

Another variance in legislative terms recently has developed in response to the ‘one man, one vote’ ruling and the need to reap- portion state legislatures at least every ten years. Illinois and New Jersey have used a combination of two- and four-year senatorial terms to allow all legislative seats to come before the voters after each decennial reapportionment. New Jersey provides that all senators are elected to two-year terms immediately after each decennial reapportionment and then to two four-year terms. Illinois provides for staggered terms, making the process more involved. The legislature divides all the legislative districts into three groups. The senators of the first group are elected to terms of two, four and four years; the senators of the second group are elected to terms of four, four and two years; and the senators of the last group are elected to terms of four, two and four years.

The subject of legislative terms is not very controversial today, although several states have attempted to lengthen the terms
of their legislators. Since 1961, the terms of senators have been increased from two to four years in Michigan, Nebraska and Tennessee; similar attempts failed in Georgia, Idaho and New York. Attempts to increase senatorial terms to six years failed in Kentucky and Oklahoma. Attempts to increase the terms of the lower house from two to four years were rejected in Florida, Georgia, Kentucky, New York, Oklahoma and Texas.

The major argument for longer terms is that they would lessen the turnover in the legislature. That would allow members to acquire more experience and perform their work more efficiently. Proponents of longer terms suggest that it always takes at
least one session to understand the legislative process. They say short terms ‘impair the right of the people to full representation because a legislator's effectiveness is reduced by his lack of experience.’

In opposition to longer terms, we are reminded that ‘the legislative task is not just getting things done—it is also representing the people.’ Advocates of short legislative terms believe that frequent elections are needed to insure that legislators are responsive to the will and needs of the people. They assert that the concepts of representative government and popular sovereignty rest on the ability of the people to remove and replace unresponsive representatives. If the people have no control over their representatives for a long period of time, then the representatives can ignore and act against the will of the people. Advocates of short terms modify John Adams’ maxim to say ‘where frequent elections end, tyranny begins.’ They also assert that if annual sessions were adopted, the argument for longer terms would be weakened because a new lawmaker would serve in two sessions each biennium.

In reply to arguments that the voice of the people should be heard through frequent elections, advocates of longer terms assert that this is not as crucial as it used to be. They suggest that since public opinion is registered much faster today than in the past through vastly improved communications facilities, the frequency of elections is no longer ‘so crucial especially because the opposing considerations [legislative experience and the cost and disruption of frequent elections] have become more important as the public opinion problem has become less important.’

Advocates of short legislative terms reply by asking: How can public opinion ever be less important? And how can improved communications make a representative who is protected by a long term more responsive to the will of the people?

Proponents of longer terms also assert that frequent elections place an undue financial burden upon legislative candidates and that campaigning disrupts the legislature and distracts the legislator's attention from his work. Before development of television and multi-media campaigning. Luce wrote: ‘It is true elections cost only half as much if held only half as often. It is also true that elections disturb the placid repose of society, or at any rate divert men from customary occupations. Neither of these arguments ought to be deemed relatively of importance. If government is our most serious concern, then money and thought and time and energy can be expended on nothing of more consequence.’

Of the arguments that frequent elections are ‘troublesome,’ Luce observed: ‘It is amusing, and it is sad, to see the complaint of too much politics go hand in hand with the complaint of misgovernment.
What illogical creatures we are. We scold our legislators because they don't come up to our expectations, and then we scold because we are asked to do anything about it. We want automatic righteousness. Sorry will the day be when we rely on that and that alone for the preservation of our liberties. Then there will be no elections. One man or a group of men will save us all the expense and trouble.’” Mont. Const. Conv. Research Studies, 1971-972, Report No. 12, The Legislature, at 104-108.

Rules for Items for Inclusion in State Constitutions: "The basic structure of the legislature and allowable ranges of membership ought to be made clear. Terms of office should be stated, and responsibility for reapportionments fixed. Restrictions on legislative powers in matters of appropriations, taxation, borrowing and grants of home rule to local units, for example, should be kept at a minimum to allow flexibility in meeting future problems." Mont. Const. Conv. Research Studies, 1971-972, Report No. 4, A Collection of Readings on State Constitutions, Their Nature and Purpose, at 301.

Drafting

Delegate Proposal No. 19 (Romney): Delegate Romney's proposal amended Sec. 6 of the 1889 Constitution to move the legislative assembly date from January to February. The remaining text of Sec. 6 regarding legislative terms of service was unchanged. The proposal was referred to the Legislative Committee.1972 Mont. Const. Conv. Tr., Jan. 25, 1972, Vol. I at 106.

Delegate Proposal No. 140 (Bates): Delegate Bates' Proposal for a New Legislative Article was based on a bicameral legislature. This proposal was referred to the Legislative Committee.

Section 3. TERM AND QUALIFICATIONS OF MEMBERS

(1) Members of the legislature shall be elected by the qualified voters of the district. Representatives shall be elected for a term of two (2) years and senators for a term of four (4) years. One-half (1/2) of the senators shall be elected every two (2) years. No person shall be a member of the legislature who is not a qualified voter of the district. The herm shall begin at the time of certification. No senator or representative, during the term for which he shall have been elected, be appointed to any civil office under the state.

(2) A vacancy in the legislature shall be filled for the unexpired term as provided by law. If no provision is made, the Governor shall fill the vacancy by appointment.1972 Mont. Const. Conv. Tr., Feb. 4, 1972, Vol. I at 274.

Legislative Committee Letter of Transmittal: The Legislative Committee submits herewith a proposed new Legislative Article which combines Article V and Article VI of the present Constitution. The proposed article is intended to replace all sections of Article V and Article VI of the present Constitution with the exceptions of the procedure for submitting initiative and referendum petitions, and the procedures for legislative action in times of emergency, which were assigned to the committee on General Government.1972 Mont. Const. Conv. Tr., Feb. 12, 1972, Vol. I at 374.

Throughout the Constitutional Convention there were two versions of Article V (including Sec. 3). One version instituted a new, unicameral legislature, and the other maintained the bicameral legislature.

Legislative Committee Unicameral Majority Proposal: ELECTION AND TERMS OF MEMBERS. A senator shall be elected for a term of four years. One-half of the senators shall be elected every two years. A senator’s term shall begin on a date provided by law.1972 Mont. Const. Conv. Tr., Feb. 12, 1972, Vol. I at 376.

Legislative Committee Unicameral Majority Proposal Comments: The provision provides for four year staggered terms. The four year term affords continuity, experience, and stability to the unicameral house. To achieve staggered terms in the legislature, it is suggested that all the senators be elected in the first election In that election, one-half should be elected to two year terms and one-half should be elected to four year terms.1972 Mont. Const. Conv. Tr., Feb. 12, 1972, Vol. I at 383.

Legislative Committee Bicameral Majority Proposal: ELECTIONS AND TERMS OF MEMBERS. A member of the house of representatives shall be elected for a term of two years and a member of the senate for a term of four years. One-half the senators shall be elected every two years. The term of the members shall begin on a date provided by law.1972 Mont. Const. Conv. Tr., Feb. 12, 1972, Vol. I at 395.

Legislative Committee Bicameral Majority Proposal Comments: The two year terms of the representatives makes them responsive to the will of the electorate while the staggered terms of the senators insures continuity of the body. No day certain for convening the legislature is fixed so that the legislature can exert its wisdom and changes of date in the future can be made without Constitutional changes.1972 Mont. Const. Conv. Tr., Feb. 12, 1972, Vol. I at 401.

Delegate Habedank Amendment to Unicameral Majority Proposal: REFERENDUM OF UNICAMERAL LEGISLATURE. (1) In 1980 the secretary of state shall place upon the ballot at the general election the question: “Shall the unicameral legislature form be continued?”1972 Mont. Const. Conv. Tr., Feb. 23, 1972, Vol. II at 786-789.

Committee on Style, Drafting, Transition and Submission Report No. III, Unicameral Proposal: ELECTION. A senator shall be elected for a term of four years to begin on a date provided by law. One-half of the senators shall be elected every two years.1972 Mont. Const. Conv. Tr., Feb. 24, 1972, Vol. II at 867.

Committee on Style, Drafting, Transition and Submission Report No. III, Bicameral Proposal: ELECTION AND TERMS. A member of the house of representatives shall be elected for a term of two years and a member of the senate for a term of four years each to begin on a date provided by law. One-half of the senators shall be elected every two years.1972 Mont. Const. Conv. Tr., Feb. 24, 1972, Vol. II at 880.

Committee on Style, Drafting, Transition and Submission Report No. III, Comments on Style, Form and Grammar: Only comments which differ from those applied to the UNICAMERAL proposal appear here. Sections 1,2,3,10,13, and 14. Grammatical changes do not alter substance.1972 Mont. Const. Conv. Tr., Feb. 24, 1972, Vol. II at 885.

Adoption: The proposed constitution included a bicameral legislature. The people were asked to vote for a unicameral legislature as a side issue at the time of ratification.1972 Mont. Const. Conv. Tr., March 22, 1972, Vol. VII at 3012. The bicameral legislature would control unless a majority of people voted for a unicameral legislature.

Adoption Schedule: If the proposed Constitution was approved by the electors, and a majority of voters approved issue 2A adopting a unicameral form of the legislature, then the Majority Unicameral Proposal would be implemented with the Habedank Amendment calling for a referendum in 1980.1972 Mont. Const. Conv. Tr., Feb. 29, 1972, Vol. II at 1104-1106.

Bicameral Text as Adopted: ELECTION AND TERMS. A member of the house of representatives shall be elected for a term of two years and a member of the senate for a term of four years each to begin on a date provided by law. One-half of the senators shall be elected every two years.1972 Mont. Const. Conv. Tr., March 1, 1972, Vol. II at 1091.

Transition Schedule: Section 2 of the Transition Schedule implementing the 1972 Montana Constitution provided: “Delayed effective date. The provisions of sections 1, 2, and 3 of Article V, THE LEGISLATURE, shall not become effective until the date the first redistricting and reapportionment plan becomes law.”1972 Mont. Const. Conv. Tr., March 1, 1972, Vol. II at 1082.

The convention note to section 2 of the Transition Schedule provided: “Sections on size of legislature, election and terms of its members would become effective when the reapportionment plan becomes law. If this is in 1974 then elections would be held in November, 1974 for new members of the legislature to take office January 1, 1975.”

Section 5 of the Transition Schedule implementing the 1972 Montana Constitution provided: “Section 5. Terms of legislators. (1) The terms of all legislators elected before the effective date of this Constitution shall end on December 31 of the year in which the first redistricting and reapportionment plan becomes law. (2) The senators first elected under this Constitution shall draw lots to establish a term of two years for one-half of their number.”

The convention note to section 5 of the Transition Schedule provided: “(1) If the reapportionment and redistricting plan becomes effective after the 1974 legislative session, the terms of legislators serving in that session would end December 31, 1974. (2) Section 3, Article V provides that senators have four year terms but that one-half are elected every two years. This section provides that one-half of the senators first elected will have only two year terms.”

Cross-References. Limitation on terms of office,Mont. Const. art. IV, § 8. each house to judge election and qualifications of its members,Mont. Const. art. V, § 10. term of office for Senators and Representatives,Mont. Code Ann. § 5-2-102. and Elections, Title 13.

Ratification

1972 Official Text with Explanation: Revises 1889 constitution by adding requirement for staggered terms for senators. Note—see Delayed Effective Date and Terms of Legislators During Transition compiler’s comments to this section.

Interpretation

1975 Attorney General letter: By letter of December 4, 1974, the Attorney General certified to the Secretary of State that: “The first redistricting and reapportionment plan was filed with the Secretary of State on February 27, 1974, and pursuant to Section 43-117, Revised Codes of Montana 1947, became law as of that date. Therefore, the provisions of Sections 1, 2 and 3, Article V, Constitution of Montana (1972), are now in effect.”

1977 Attorney General letter: By letter of March 24, 1977, the Attorney General certified to the Secretary of State that the following provisions of the Transition Schedule have been fully executed: “Section 5. Terms of legislators. Subsection (1) of Section 5 has been fully executed. Under that subsection, the first redistricting and reapportionment plan was filed with the Secretary of State and became effective on February 27, 1974. Therefore, the terms of all legislators elected prior to the effective date of the 1972 Constitution on July 1, 1973, ended on December 31, 1974. Subsection (2) of Section 5 of the Transition Schedule has been fully executed.”

40 A.G. Op. 2 (1983): The Attorney General issued an opinion concluding that the commission provided for in Article V, section 14 had the responsibility of satisfying the requirements of this section and reapportionment, but could not shorten the term of office of Montana state senators who were elected in 1982.

47 A.G. Op. 9 (1997): Constitutional Initiative 64 ("CI-64") amended the Montana Constitution to place limits on legislators and certain statewide elected officials to no more than eight years in an office in any 16-year period. The Attorney General found CI-64’s reference to "terms of office" referred to the terms provided by the constitution in article V, section 3 and article VI, section 1(2) and Mont. Code Ann. § 5-2-102.

Commentary

"Although distance and geographic size are factors that merit consideration in determining the number of counties and legislative districts, the combined effect of Article V, sections 2 and 3, and Article XI, sections 2 and 3, of the Montana Constitution effectively locked in the status quo in terms of the number of counties and legislative districts in Montana. Ultimately, the question of whether Montana citizens have too much representation is probably best left to the citizenry no matter how cumbersome the Montana Constitution makes the process for achieving change."<ref>Gregory J. Petesch, The State of the Montana Constitution (Turkey Feathers on the Constitutional Eagle), 64 Mont. L. Rev. 23 (2003).</ref>

Larry M. Elison & Fritz Snyder, The Montana State Constitution: A Reference Guide, Greenwood Publishing Group (2001).