Initiative amendments ruled unconstitutional
By MICHAEL MOORE of the Missoulian

A federal judge on Wednesday declared unconstitutional the state of Montana's requirements for signatures gathered to put initiatives and constitutional amendments on the ballot.

Those requirements, passed by the voters in the 2002 general election, required those seeking to get initiatives on the ballot to gather signatures from 5 percent of voters in half of Montana's counties. The provision required 10 percent of voters in 28 of 56 counties to sign petitions to get proposed constitutional amendments on the ballot.

U.S. District Judge Don Molloy declared the provisions unconstitutional based on the equal protection clause of the U.S. Constitution's 14th Amendment. In essence, Molloy said, the state's county-distribution requirements for signatures violate the premise of one person, one vote.

"While the space and density of our state has well-recognized benefits to those who live in the 'last best place,' its geographic distribution favors residents of sparsely populated areas over residents of the more urban or more densely populated areas of the state when it comes to qualifying initiatives for the ballot," Molloy wrote.

In fact, the two amendments - known as CA-37 and CA-38 - were put forth precisely for that reason - rural legislators proposed the amendments because they felt that urban voters had too much power in the public initiative process. There was widespread discussion that the amendments were likely unconstitutional when they were first proposed, but that didn't stop voters from enacting them. They became part of the Montana Constitution in 2003.

"What those amendments did was make the vote of someone in a rural county more important than the vote of someone in Billings," said Tim Bechtold, one of the attorneys who filed the case shortly after the 2002 election. "The 14th Amendment requires that every vote is the same."

The suit was filed by the Montana Public Interest Research Group, the National Wildlife Federation, the Initiative and Referendum Institute and four individuals, including several doctors who've been active in initiative campaigns. Named as defendants in the suit were Attorney General Mike McGrath and then-Secretary of State Bob Brown. Brown was later replaced as a defendant by new Secretary of State Brad Johnson. Neither McGrath nor Johnson had seen Molloy's order as of Wednesday.

Matt Leow, executive director of the Montana Public Interest Research Group, had the order in hand on Wednesday and he was thrilled.

"Montanans use citizen initiatives to protect our health, our families and our freedoms," Leow said. "We are relieved, but not surprised, that the judge agreed that 'one person, one vote' is a bedrock principle."

The suit was filed at a fortuitous time for the plaintiffs, as the 9th U.S. Circuit Court of Appeals had recently decided an Idaho case based on almost identical facts and issues.

"There, the (9th) Circuit Court of Appeals held unconstitutional a county distribution requirement for the qualification of voter-initiated legislation virtually indistinguishable from the one currently in effect in Montana," Molloy wrote.

Bechtold and Colorado attorney Paul Grant, who litigated the Idaho case, argued to Molloy that the requirement that signatures come from half of Montana's counties disenfranchised many Montana voters, particularly those in urban areas.

Those voters could, in effect, be left out of the initiative process by a campaign that focused itself solely on the state's less populous counties.

The plaintiffs said the "requirement grants undue weight to the signatures of qualified electors in less populous counties to the disadvantage of qualified electors in more populous counties," the judge wrote.

The state, which was basically trying to keep the case alive long enough to do discovery into precisely how much trouble the requirement imposed on the plaintiffs, offered two lines of rationale for requirement: One, that measures that reach the ballot have a modicum of state support and, two, that it helps prevent frivolous and unsupported measures from crowding the ballot and reaching the ballot.

Molloy dismissed those arguments. If the state is interested in discouraging frivolous issues from reaching the ballot, why not just increase the percentage of voters who must sign an initiative or amendment petition? the judge asked.

The judge's order came on four of five counts in the plaintiff's motion for summary judgment. Molloy said the fifth claim involved factual issues that would require further discovery. That claim focused on the requirement that the names and addresses of paid signature gatherers be disclosed as part of the initiative process.

The plaintiffs argued that the requirement was unconstitutional because it might have a chilling effect of the First Amendment rights of those involved in the initiative process. The judge said that was a factual question that should be resolved at trial.

The judge said he would set a short discovery period then schedule a bench trial. It's not clear that one will be necessary, however, since Molloy's ruling about the requirement will likely force legislators to come up with a new method for the initiative and amendment process.

In fact, Bechtold said, the Legislature has been observing the case and had hoped the judge would make a decision on the constitutional issues while the legislators were still in session.

The court sent the judge's order to state Rep. Paul Clark, D-Trout Creek, who'd written to the judge in hopes the case would be resolved during the current session. The Missoulian could not reach Clark on Wednesday.

Reporter Michael Moore can be reached at 523-5252 or at mmoore@missoulian.com

Source: http://www.missoulian.com/articles/2005/03/31/news/mtregional/news06.txt