Lawyers argue that the 2021 election initiative is unconstitutional

(Daily Montanan) A bill heard in a Senate committee on Monday aims to reverse a law passed by the Montana Legislature in 2021 that subjected electoral initiatives to additional scrutiny by interim committees and the Montana Attorney General .

At the hearing, several attorneys testified that the additional oversight was unconstitutional.

Senate Bill 153, sponsored by Sen. Brad Molnar, R-Laurel, seeks to remove portions of the Montana Code Annotated that were added when the Legislature passed and Republican Gov. Greg Gianforte signed House Bill 651 in 2021.

Molnar called House Bill 651 “manifestly unconstitutional” at Monday’s hearing before the Senate State Administration Committee. He said he mistakenly voted for the bill on the third reading in 2021 because he lost his “cheat sheet.”

The 2021 bill added additional reviews of ballot initiative proposals, including review and voting by an interim committee; that the employer of paid signature collectors pay a fee and register with the Office of the Secretary of State; and to have the Attorney General determine whether the initiative would cause “substantial material harm” to Montana businesses.

In that case, that language and the provision of the Interim Committee would be added to the voting request.

However, two years later, Molnar said if the language of that law stood, Montanans would pay even more money to crack down on laws challenged as unconstitutional. The governor’s office is asking for $2 million this year to defend such bills, he said.

Referring to the Montana Constitution, he said the 2021 measure would limit people’s “allegedly unrestricted ability to petition their government.”

Among those who testified in support of this year’s bill was retired Montana Supreme Court Justice Jim Nelson, whose testimony was read by Helena-based attorney Mark Mackin.

Nelson argued, as he did in an op-ed published by the Daily Montanan last year, that the Constitution gives Montana citizens political power and the power to make new laws and amend the Constitution.

He said in his testimony that HB651 gave the Attorney General the power to determine whether citizens should be able to bring an initiative instead, but the Constitution states that the only public official authorized to be involved in this process is the Office of the Secretary of State is – and just to submit the petition, collect the signatures and determine if they are sufficient to be put on the ballot.

“A constitutional right is worth nothing when the legislature and the governor can make the exercise of that right so complicated and difficult that it’s not worth the effort,” Nelson’s testimony said. “With House Bill 651, the Legislature and the Governor did just that.”

Last year, Attorney General Austin Knudsen declined to review a proposed initiative, arguing the new law applies only to legislative initiatives, but Secretary of State Christi Jacobson allowed signature collection to begin on the measure aimed at capping Montana’s property taxes .

Groups had sued supporters of the measure, arguing that the new law had not been followed and that they should not collect signatures to try to get the initiative on the ballot.

A judge eventually sided with the accused. Matthew Monforton, one of those defendants, testified Monday in favor of the bill to repeal the law, saying the lengthy process crippled his efforts to collect signatures.

He called the current law “a hypothetical pocket veto” – and said it gives interim committees and the attorney general the power to hold a vote for months. He said Jacobson originally ignored the law.

“I am a Conservative and am politely warning the committee that unless HB651 is repealed, there will be multiple lawsuits,” he told the committee. “You will lose her and you will deserve to lose her. We ask that you pass SB153, waive HB651 and save Montanans a lot of unnecessary legal fees.”

Attorney Jonathan Motl, who specializes in electoral initiatives and is a former political practices commissioner, said the current law would have prevented many issues that arose before 2021 from ever going to a vote, and said passage of SB153 would Bringing law back to a more “constitutional place.”

Charles Robison, representative of the Montana Chamber of Commerce, told the committee that SB153 should not happen because HB651 allows “more public contributions.”

He argued that instead of reaching most citizens through advertisements alone, the current law created a process for citizens to testify before Transitional Committees and discuss the pros and cons of a measure. He said it gave voters more “educational information.”

Darryl James, executive director of the Montana Infrastructure Coalition, said he feels the current law provides more transparency in the initiative process, as does Alan Olson, executive director of the Montana Petroleum Association.

“Right now protects citizens by holding all of these deliberations in daylight instead of having to rely on 30-second tonbytes on TV,” Olson said.

However, in his closing argument, Molnar disagreed, saying it was easy for initiatives to stall and miss their deadline due to the process in place since the 2021 law.

“You get public participation by allowing the public to participate, not by telling them to start earlier,” Molnar said. “I admitted I was wrong. I don’t think there is a constitutional attorney in the world who would tell you to kill that is right.”

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