XIV.9 Amendment by Initiative
(1) The people may also propose constitutional amendments by initiative. Petitions including the full text of the proposed amendment shall be signed by at least ten percent of the qualified electors of the state. That number shall include at least ten percent of the qualified electors in each of at least one-half of the counties.
(2) The petitions shall be filed with the secretary of state. If the petitions are found to have been signed by the required number of electors, the secretary of state shall cause the amendment to be published as provided by law twice each month for two months previous to the next regular state-wide election.
(3) At that election, the proposed amendment shall be submitted to the qualified electors for approval or rejection. If approved by a majority voting thereon, it shall become a part of the constitution effective the first day of July following its approval, unless the amendment provides otherwise.Mont. Const. art. XIV, § 9. In 2005, the county distribution requirement was held to violate the Equal Protection Clause of the 14th Amendment of the United States Constitution. Mont. Pub. Interest Research Group v. Johnson, 361 F.Supp.2d 1222 (D. Mont. 2005).
History
Sources
Drafting
Delegate Proposals
Three proposals to grant the people the power to amend the constitution by initiative were introduced. One proposed a new constitutional article providing for a parliament, but also reserving for the people "the initiative, including the right to amend this Constitution, and referendum powers."Mont. Const. Cons. Proc. vol. I, 268 [hereinafter Constitutional Convention vol. I] (Delegate Prop. 136 (Kelleher)). Another proposal placed the right of the people to amend the Constitution within a new legislative article.Id. at 277 (Delegate Prop. 140 (Bates)). The people could "propose and enact laws by the initiative, including constitutional amendments."Id. The proposal would require petitions to be signed by "one-fourth or more of the legislative districts and the total number of signers must be eight percent or more of the total legal voters."Id. Another proposal required petitions to be signed by ten percent or more of the state's legal voters but contained no distribution requirement for those signatures.Id. at 119-20 (Delegate Prop. 27 (Mahoney)). The third proposal would also allow no more than six amendments to be presented to voters in any election.Id.
Another proposal would only allow constitutional amendments to be proposed by two-thirds of all members of the Legislature.Constitutional Convention vol. I, supra n. 2, at 210-11 (Delegate Prop. 94 (Habedank)). The proposal would also allow successive Legislatures to ratify an amendment unless five percent of voters call for a referendum.Id. at 210-211.
Delegate Proposal No. 136 (Kelleher): "The legislative power of the state shall be vested in a Parliament consisting of one chamber; but the people reserve to themselves the initiative, including the right to amend this Constitution, and referendum powers."Id. at 268 (Delegate Prop. 136 (Kelleher)).
Delegate Proposal No. 140 (Bates): "The people may propose and enact laws by the initiative, including constitutional amendments and approve or reject acts of the legislature by referendum. Initiative petitions must be signed by eight percent (8%) or more of the legal voters in each of one-fourth (l/4) or more of the legislative districts and the total number of signers must be eight percent (8%) or mere of the (total legal) voters of the state. Each petition must contain the full text of the proposed measure and shall be confined to one subject. Petitions must be filed with the secretary of state three (3) months or more prior to the election at which they will be voted upon."Id. at 277 (Delegate Prop. 140 (Bates)).
Delegate Proposal No. 27 (Mahoney): "The people of Montana may also propose constitutional amendments by initiative petitions. Each petition shall include the full text of the proposed amendment and shall be signed by ten (10) percent or more of the state's legal voters. . . . Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished by numbers or otherwise that each can be voted upon separately; provided, however, that not more than six amendments to this constitution shall be submitted at the same election by the legislative assembly and not more than two amendments shall be submitted at the same election."Id. at 119-120 (Delegate Prop. 27 (Mahoney)).
Delegate Proposal No. 94 (Habedank): "The people may by initiative petition request the legislative assembly to submit to the voters of the state the question of whether there shall be an unlimited convention to revise, alter, or amend this constitution. The petition must be signed by at least ten percent (10%) of the legal voters of the state, and at least ten percent (10%) of the legal voters in two- fifths (2/5) of the legislative districts of the state. The number of votes cast for the Governor in the general election immediately preceding the filing of the petition shall determine the number of legal voters. . . . (1) The legislative assembly may refer the proposed amendment to the voters of the state of Montana to be voted on in the next general election held in the state. . . . or (2) If the legislative assembly by a majority roll call vote, elects not to refer the amendment to the vote of the electors of Montana as provided in the preceding subsection (1) the amendment shall be presented to the next succeeding legislative assembly. If adopted by a two-thirds (2/3) vote of the members of such legislative assembly, the amendment shall become a part of this constitution . . . unless a petition is filed with the Secretary of State signed by five percent (5%) of the legal voters of the state requesting such amendment be referred to a vote of the people as provided in this Constitution for referendum, in which event the amendment shall not become effective until the Secretary of State certifies its approval by a majority of those voting thereon."Id.at 210-11 (Delegate Prop. 94 (Habedank)).
Committee Proposal
Constitutional Revision Proposal: The proposal created a new power for the people to amend by initiative.Constitutional Convention vol. I, supra n. 2, at 354 (Proposal on Constitutional Revision). The proposal retained Delegate Mahoney's proposal that would allow successive Legislatures to ratify an amendment.Id. at 354 (Proposal on Constitutional Revision). Initiative petitions required signatures of "not less than 15 percent of the legal voters in Montana, which shall include at least 15 percent of the legal voters in two-fifths of the legislative representative districts of Montana."Id. The committee noted that the power of the people to amend the constitution is an "inherent right of the body politic" and that the Consitution is to be the "embodiment of the will of the people."Id. at 363. The committee also noted that the signature and geographical requirements are high, but not so unreasonable that "pressing popular and needed Constitutional reforms could not be initiated by the people."Id. The high standard was intended to "check erratic whimsy."Id. The proposal also retained the 1889 requirement that separate amendments be prepared so voters may vote on each amendment individually.Constitutional Convention vol. I, supra n. 2, at 363 (Proposal on Constitutional Revision).
Floor Debate
Floor debates centered around "the theme of popular control of a flexible Constitution."Anthony Johnstone, The Constitutional Initiative in Montana, 71 MONT. L. REV. 325, 341 (2010). Delegates sought requirements that would be high enough to prevent "flooding the Montana Constitution with amendment after amendment that would be better put in the statutes," but also ensuring that requirements were not so high that the people could not meet them.Mont. Const. Conv. Proc. vol. III, 506 (1972) (Delegate Vermillion) [hereinafter Constitutional Convention vol. III]. Delegate Mahoney moved to strike the fifteen percent signature requirement and replace it with a ten percent requirement to bring it in line with signature requirements for initiating a constitutional convention.Id. (Delegate Mahoney). Delegate Baylock felt a fifteen percent requirement would be insurmountable and that they "might as well strike th[e] whole section."Id. Delegate Johnson agreed, stating that because a ten percent requirement would still be difficult enough that the initiative "will not be used very often."Id. at 507 (Delegate Johnson).
Others expressed concerns about making the requirements for constitutional initiatives and statutory initiatives the same. Some delegates felt "there would be more attempts made to raid the Constitution if the figure were low enough that it was a simpler matter to do."Id. (Delegate Choate).
Another concern was the pre-election publication requirement. Voters would need to be informed about initiatives before voting. Delegates wanted a requirement that was clear but also flexible enough to account for technological advances in communication. Delegate Blend wanted to change the requirement of "at least one newspaper in each county" to "the communications media."Constitutional Convention, supra n. 22, at 508-09. Delegates wanted to ensure that people have an opportunity "to read and study and digest" any proposed amendments.Id. at 510. (Delegate Swanberg).Delegate Habendank worried that such wording would allow proposed amendments to solely be disseminated by radio.Id. at 509 Delegates eventually settled on "published as provided by law."Id. (Delegate Robinson).
Adoption
The final vote was held March 10, 1972.Mont. Const. Cons. Proc. vol. VI, 1918 (1972) [hereinafter Constitutional Convention vol. VI]. The Convention adopted the constitutional initiative 87-7.Id.