DOJ: News Release

McGrath: Ballot-Measure Requirements Revert to Prior Language

HELENA – In a formal opinion released Thursday, Montana Attorney General Mike McGrath held that a recent judicial decision invalidating county-based signature requirements for initiative petitions restores the prior language of the Montana constitution and statutes, as they existed before the approval of the amendments.

The opinion comes less than two weeks after a U.S. District Court judge declared Montana constitutional amendments – C-37 and C-38 – unconstitutional and placed an injunction on the state enforcing their requirements.

Montana’s constitution says that citizens may propose constitutional amendments by initiative. Prior to the passage of C-37 and C-38, the constitution said that petitions including the text of the proposed amendments must be signed by:

  • at least 10 percent of the qualified electors in the state, and
  • at least 10 percent of qualified electors in each of two-fifths of the legislative districts.

With the passage of C-37 and C-38 in 2002, the requirement changed to:

  • at least 10 percent of the qualified electors in the state and
  • at least 10 percent of the qualified electors in at least half of the state’s counties.

A March 28 decision from U.S. District Court Judge Donald Molloy found the county-based requirement results in inequal treatment of qualified electors in different counties.

“Montana’s population is unevenly distributed throughout its counties,” Molloy wrote. “While the space and density of our state has well-recognized benefits … its geographic distribution favors residents of sparsely populated areas over residents of the more urban or densely populated areas of the state when it comes to qualifying initiatives for the ballot.”

In the opinion, McGrath held that the failure of C-37 and C-38 leaves the Montana Constitution “as it was before their enactment, with the original legislative district distribution requirements intact.

“The excision of the preexisting distribution requirements from the Montana Constitution,” McGrath held, “would create a law neither enacted by the legislature nor approved by the people of Montana.”

House Speaker Gary Matthews requested the opinion on April 1. Attorney general’s opinions carry the weight of law unless a court overturns them or the legislature modifies the laws involved.

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