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Knudsen’s office blocks top-four primary ballot initiative, prompting lawsuit

by ARREN KIMBEL-SANNIT Montana Free Press
| November 2, 2023 12:00 AM

The backers of a constitutional initiative that would reshape primary elections in Montana are suing the state for access to the ballot in 2024, arguing that Attorney General Austin Knudsen’s office incorrectly determined the proposal was illegal.

The attorney general’s office determined in a review on Oct. 13 that Ballot Initiative #12, which would create a primary system that would advance the top four vote-getters to the general election regardless of party, violates the Montana Constitution and infringes on the Legislature’s authority to regulate elections. Last week, the initiative backers, a group called Montanans for Election Reform Action Fund, filed a challenge to that determination before the Montana Supreme Court. 

“We felt this was a likely part of the process,” former state lawmaker Frank Garner, R-Kalispell, one of the initiative group’s public faces, told Montana Free Press this week. “I think it’s common for the individuals who benefit from the current system to be concerned about how this process would change.”

The group is also pushing a ballot initiative that would require most elections in Montana to be decided by a majority vote (under the current system, the top vote-getter in a general election is the victor, regardless of whether they received a majority of the vote). Both ideas, they argue, will help create a more responsive, thoughtful government. 

The attorney general has the statutory authority to reject proposed ballot initiatives on constitutional grounds. In the legal sufficiency review of the top-four proposal, Deputy Solicitor General Brent Mead argued the initiative violates what is often called the Constitution’s separate-vote requirement. This provision states, with no great amount of detail, that “If more than one amendment is submitted at the same election, each shall be so prepared and distinguished that it can be voted upon separately.”

In other words, a single ballot initiative shouldn’t contain multiple unrelated amendments to law or the Constitution. Whether this initiative does that — something called “logrolling” — or whether all of its parts are essential components is the central legal question in the dispute. 

BI-12 would create a new section in Article IV of the Montana Constitution, which pertains to elections. It sets up a top-four system for the offices of governor, lieutenant governor, secretary of state, auditor, attorney general, superintendent of public instruction, state representative, state senator, U.S. representative and U.S. senator. For those offices, all candidates, regardless of party affiliation, would appear on the same primary ballot. Electors of any party would vote on that ballot. The top four vote-getters would advance. 

But the initiative also makes a handful of other changes that the sponsors say are necessary for the broader proposal to work. It says a candidate “may not be required to obtain the endorsement or nomination of any political party or organization in order to qualify for the primary election ballot” — though they can still list their party preference if they choose to do so. And, it says that a candidate cannot be required to gather more signatures than equivalent to “five percent of the total votes cast for the candidate elected for the same office at the last general election” in order to qualify for access to the ballot. 

The attorney general’s argument is that these changes are not closely enough related to be voted on in one package. 

“Ballot Measure 12’s primary purpose is to constitutionally mandate a top-four primary for specified offices,” Mead writes. But the full text of the initiative “then adds numerous provisions that are not closely related to the creation of a top-four primary.”

Mead argues that the voters would have to vote on each of these provisions separately to pass legal muster, at least on the single-subject front. Defining the candidates covered by the initiative constitutes a separate decision for the voters, as does capping signature requirements and as does the provision stating that a candidate can’t be required to obtain a party endorsement to land on the ballot, Mead contends. 

But, attorneys for the initiative backers argue, this analysis misunderstands the fundamental purpose and function of a top-four primary — to replace a “failing” and increasingly polarized electoral system with one that “creates a level playing field for all candidates and gives voters more choices.”

Each of the proposal’s components is essential to its functioning and to fit previous court precedent related to “blanket primary” systems, the lawsuit says. For example, the party affiliation language is necessary to allow all candidates equal access to the ballot, it says. 

“The crucial feature of such an open primary system is that the state-run primary election no longer serves the function of selecting political parties’ nominees, but rather simply serves the function of winnowing the number of candidates for the general election,” the suit says. 

Parties would still be free to nominate, endorse and support candidates, a key requirement in case law, but the primary would “no longer give any special role to political parties.” 

Attorneys for the initiative backers — Helena’s Rob Cameron and Sean Morrison and Billings’ Martha Sheehy — make similar arguments against Mead’s other points and also identify rulings in other states where courts have upheld similar multi-section top-two or top-four primary initiatives. The recently adopted open primary system in Alaska, for example, has withstood legal challenges. 

“In short, in proposing BI-12, [Montanans for Election Reform] specifically intends to present the voters with a clear, binary choice: adopt a workable, constitutional top-four primary system for the offices identified in the ballot title, or reject that system,” the lawsuit reads. “BI-12 intentionally incorporates all elements necessary to create that system, and thus meets both objectives of the separate-vote requirement.”

Knudsen’s office has until Nov. 6 to respond to the lawsuit. 

Montanans for Election Reform features a few prominent former Republican lawmakers who fall on the more moderate wing of the party, like Garner, Conrad’s Rob Cook, Bozeman’s Bruce Grubbs and the Flathead Valley’s Bruce Tutvedt. The other sponsors are Pondera County Republican activist and former state GOP central committee member Ted Kronebusch and former legislative and congressional candidate Doug Campbell, who has run for office in the past as a Libertarian, a Green and an independent.

“We’re always talking about how competition is a good thing, except when it comes to us,” Garner told MTFP in August. 

In addition to the top-four measure, the group is running an initiative to require that elections for certain offices be determined by a majority vote, another measure they say will allow for a more responsive government. The group withdrew their initial proposal, which would have covered every office — including, for example, multi-member municipal districts — and submitted one that only applies to the constitutional offices such as governor, state legislator, and U.S. senator. That initiative is still pending review. Both, if passed, would take effect beginning in 2025. 

The committee formed this summer and so far has posted only one campaign finance report, covering the period of Aug. 17 to Sept. 30. That report shows a $185,000 donation dated Sept. 14 from Action Now, Inc. 

That committee, which did not (and doesn’t have to) report the source of the money, appears to be another form of the Action Now Initiative, an “advocacy network” that supports several causes, including “Restoring Faith in Democracy,” according to its website. That means proposals like ranked-choice voting, independent redistricting — which Montana already has — and open primaries. 

The group “invests in evidence-based solutions that maximize opportunity and minimize injustice,” according to Action Now, Inc.’s non-profit paperwork. The group, under whatever name, is a project of Arnold Ventures, a limited-liability for-profit philanthropic organization formed in 2019 by Texas billionaires John and Laura Arnold. The organization, a contemporary article in the Chronicle of Philanthropy notes, will allow the Arnolds to “spend through their nearly $2 billion private foundation, their existing donor-advised fund, and a 501(c)(4) organization.” 

Funneling money through an LLC, the article notes, allows donors greater flexibility but also shields them from some public disclosure requirements and lobbying laws. 

A representative for Action Now did not return requests for comment.

Reporter Arren Kimbel-Sannit can be reached at akimbel@montanafreepress.org. The Montana Free Press is a nonprofit newsroom. To read the article as originally published, click here.

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