“Government must be free to act.”
— Montana Governor Forrest Anderson
“The fix was in.”
—Linda S. Frey, Professor of History, The University of Montana
I The Most Important Montana Case Ever 1
On August 18, 1972, the Montana Supreme Court, in a 3-2 decision, issued its judgment in State of Montana ex rel. Cashmore v. Anderson. 2 At the time, the case was described as the most important Montana’s high court had ever decided. 3 And so it was. By resolving a contested referendum, the court replaced the state’s original 1889 constitution with a new one based on very different political premises. By freeing state and local government from constitutional restrictions designed to curb corruption, special interest influence, and excessive state spending, the case paved the way for dramatic changes in state policies 4 that arguably contributed to Montana’s precipitous relative economic decline in the ensuing years. 5
The Cashmore case was distinctive for other reasons as well. Rather than allowing the case to work its way up the judicial hierarchy, the Montana Supreme Court granted a request that the court dispose of it immediately by exercising original jurisdiction. Even when a dispute over determinative facts arose shortly before the scheduled hearing the court retained the case rather than remit it to a fact-finder. Then without providing the losing side sufficient time to respond to the new factual issues, the court held a hearing limited to legal issues and soon thereafter issued its decision.
Before the case arose, there was an almost-universal understanding of the specific voter majority required for approval of a new Montana constitution. Cashmore not only abandoned that understanding for a different one, but did so after the referendum already had been held.
For a case of such consequence the majority and dissenting opinions were oddly drafted. They were indifferently researched, curiously disorganized, internally inconsistent, and occasionally incoherent. The dissent showed signs of being patched together at different times and under different circumstances. Some Montanans in a position to know believe that one justice on the five-man court changed his mind after initial drafts were prepared, thereby forcing hasty redrafting. Some claim the vote switch was the product of political pressure.
Such a case cries out for scholarly review. But there has been almost none in the 46 years since the constitution was proclaimed. Montana’s principal organ of legal analysis, the Montana Law Review, has published almost nothing on the subject. 6 Two professors at the law school that sponsors the Review penned a 250-page book on the 1972 constitution, but managed to dismiss the Cashmore case in a single paragraph. 7 Perhaps this silence is related to the school’s deep involvement in the network that created, and continues to promote, the 1972 constitution. 8
The silence on Cashmore has been accompanied by much celebration of the 1972 constitution itself. 9 Below the patina of satisfaction, however, the document remains controversial in some quarters. 10 In any event, it is always appropriate to inquire whether a state constitution was properly adopted. The same question is commonly asked even of our venerated American Constitution. 11 In a republic where the people are said to be the font of political power, it is best to ensure that any state constitution is truly the product of popular will.
II The Law of Majorities
A The Default Rule and Variations From It
Cashmore centered on the nature of the majority required by the 1889 Montana constitution for ratification of proposals from a new constitutional convention. Understanding the issue requires a short review of the law of majorities.
In 1760 England’s Court of King’s Bench decided Oldknow v. Wainright. 12 In that case the court, speaking through its chief justice, Lord Mansfield, held the default rule for group decision making to be a majority of those actually voting on the issue under consideration. In other words, for a proposal to pass, it need garner only more “yes” votes than “no” votes on that particular issue. Abstentions and absentees were not counted either way.
One may think of this default rule as a fraction: The numerator is the set of all voting “yes,” the denominator is the number of people voting on the specific question, and for the “yes” vote to prevail, the fraction must be greater than 1/2.
However, constitutions and statutes frequently alter this default rule by raising the numerator, raising the denominator, or raising both. For example, the rule in the United States Constitution prescribing two thirds of those voting in each house of Congress to override a presidential veto 13 represents an increase in the numerator. The Constitution’s rule that treaties are ratified only by two thirds of all Senators present, whether or not voting, raises both the numerator and the denominator. 14
Like the U.S. Constitution, state constitutions commonly augment the numerator or denominator for legislative decisions. 15 Unlike the U.S. Constitution, state constitutions and other laws also authorize popular referenda, and in the course of doing so they also may raise the required numerator or denominator. 16 Two heightened denominators are particularly common in the referendum context: (1) all electors in the jurisdiction, whether or not they participate in the election 17 and (2) all electors participating in the election no matter on which issues they voted or abstained. 18 The rule under consideration in Cashmore was of the latter kind. 19
Judges faced with language apparently altering a decisional fraction attempt to recover what the language meant to the voters who ratified it. 20 (This is sometimes imprecisely called the determining the “intention of the framers”). 21 Judges may deduce the ratifiers’ understanding from the face of the instrument; but if circumstances render the language unclear, they consider other evidence.
Suppose, for example, that a court is confronted with what appears to be the heightened denominator, “all electors in the jurisdiction.” Some pre-Cashmore courts interpreted this literally to mean all electors, whether or not they participated in the election at issue. 22 Others deemed it unlikely the ratifiers intended the bar to be that high, and construed “all electors” to mean either all electors participating in the election 23 or merely all those voting on the particular question. 24 Thus, when interpreting “all electors,” the courts had split three ways.
On the other hand, there was no split on the meaning the heightened denominator at issue in Cashmore: all electors participating in the election. 25
B The Meaning of “A Majority of Electors Voting at the Election” in 1889
At the time the Cashmore case arose, the existing state constitution—drafted and ratified in 1889—prescribed that to become effective, constitutional convention proposals had to be “approved by a majority of the electors voting at the election.” 26 Thus, the 1889 constitution retained the default rule’s majority numerator but raised the denominator from those voting on the issue to all electors participating in the election, no matter what issues or candidates they chose to vote on.
The 1889 framing convention spent some time considering decisional fractions. The issue arose when a convention committee produced draft language addressing future constitutional revision. The draft language prescribed that the legislature would propose constitutional amendments and calls for new constitutional convention while the people, voting in referenda, would approve or reject those proposals. Similarly, a new convention could propose constitutional changes, which the people would ratify or reject.
The committee recommended that for the legislature to propose either an amendment or a new convention, the proposal garner the affirmative vote of “two-thirds of the members elected to each house.” 27 In other words, the committee recommended that legislative proposals require approval by both an augmented numerator and an augmented denominator. But for the people to ratify an amendment or to call a new convention, the committee draft recommended adherence to the default rule—that is, a majority of those voting on the issue. 28 For popular ratification of convention proposals, the committee draft suggested the default numerator but a heightened denominator: “a majority of the electors voting at the election.” 29
During general floor discussion of the committee draft, Alfred Myers of Billings moved to reduce the legislative numerator for proposing a convention to a simple majority, as in an abortive state constitution prepared five years earlier. 30 William Bickford of Missoula similarly moved to reduce the legislative numerator for proposing amendments to a majority. 31 Both motions were defeated, but they provoked an interchange on the merits of different numerators.
In addition, Louis Rotwitt of White Sulphur Springs moved to heighten the denominator for calling a convention from “those voting on the question” to “All members.” 32 Apparently, he was under the impression that he was addressing a legislative rather than a popular vote. On being apprised of his error, he withdrew his motion. 33 The convention then approved the committee draft without alteration. As a result, the finished constitution required that any future convention proposals be approved by a “majority of electors voting at the election”. 34
In adopting this “majority of electors voting at the election” standard, the 1889 convention was adopting a rule already incorporated in the constitutions of at least twelve states: Michigan, 35 Alabama, 36 Arkansas, 37 California, 38 Florida, 39 Illinois, 40 Kansas, 41 Minnesota, 42 Nebraska, 43 Nevada, 44 Texas, 45 and Virginia. 46 The proposed 1884 Montana constitution adopted the same rule twice. 47
To understand how the rule operated in practice, posit an election in a (tiny) state with seven qualified electors. Under the law of the state (1) candidates are elected by the default rule but (2) ballot propositions must garner “a majority of electors voting at the election.” The state has seven qualified electors, of whom five have deposited ballots. There are two candidates for governor and two for senator, and Propositions A and B are also at issue.
- *Elector 1 votes for governor and on Proposition A.
- *Elector 2 votes for governor, senator and on Propositions A and B.
- *Elector 3 votes for governor, senator, and on Proposition B.
- *Elector 4 votes for senator and on Proposition A.
- *Elector 5 votes on Proposition A only.
Only three votes were cast for governor and senator. Under the law of the state (the traditional default rule), a gubernatorial or senatorial candidate can win by garnering only two votes. However, because the number of “electors voting at the election” is five, a proposition must receive three “yes” votes to be successful. Proposition A passes if three of the four electors who voted on the measure voted “yes.” But Proposition B loses even if both electors who voted on it voted “yes”. 48
There is no serious question that this was the dominant understanding of “majority of electors voting at the election” when the 1889 constitution was drafted and ratified. For one thing, there were at least four reported cases on the subject, and they all affirmed this meaning. 49 Moreover, the framers of the Nevada and Florida constitutions had supplemented their adoption of the rule with an easily-determined proxy for “electors voting at the election.” 50 There would have been no reason for this proxy if “electors voting at the election” was a mere synonym for “those voting on the measure.”
C “A Majority of Electors Voting at the Election” between 1889 and 1972
In 1905, a federal judge surveying the field reported that “the courts construing statutes or constitutional provisions requiring a majority of the votes cast at the election have almost unanimously held that it required a majority of all voters who participated at that election, and not merely a majority of those who voted on the particular question submitted.” 51
When Cashmore was decided in 1972, a “majority of electors voting at the election” was still required for constitutional revision in many states, 52 and the prevailing sense of the phrase had not changed. 53 Only in very few cases had distinctive language 54 or unique history 55 forced a different interpretation.
Courts offered several reasons for construing “electors voting at the election” to mean all those participating, irrespective of what they voted on. Some courts stated that it was the plain meaning of the language. 56 One asserted that “[t]o ratify is to affirm, and the Constitution requires in order to ratify that there be an affirmative expression of the majority of the electors to whom the question is submitted, the withholding of which is not sufficient”. 57 Still another compared the rule to Swiss practice, under which majorities were required of both voters and cantons. 58
In some cases, a party alleged that the relevant “election” was not the general election but a special election held simultaneously with it. If this was true, the decisional denominator consisted only of those voting in the special election rather than everyone who frequented the polls on Election Day. 59 Obviously, if a ballot issue was segregated into a special election, then the smaller required denominator increased the chances that the proposition would be approved.
Whether the ballot measure was offered at a special election or a general election was a mixed issue of fact and law, and judicial resolution depended on substance rather than form. 60 If language in the governing law did not resolve the issue clearly, 61 the courts weighed several factors in arriving at a conclusion. No one of these factors was determinative, but the following tended to show that the election was special:
- The governing law referred to the issue being voted on in an election being held for that particular purpose. 62
- • The law called for a separate return process for “the election.” 63
- The law made no provision for tallying the total number of voters. 64
- The notice of the referendum was a different document from the notice for the general election. 65
- The referendum was held on ballots separate from those employed in the general election. 66
- The referendum was called or administered by an agency different from that administering the general election. 67
If the court determined that there was a special election consisting of only one question, then the number voting at the election was the same as the number voting on that question. If the special election included several issues, 68 the denominator consisted of all voters participating in that special election, irrespective of the issues on which they voted or abstained; 69 however, it still did not include everyone who voted in the simultaneous general election.
III The Movement for a More Liberal 70 Montana Constitution
A The Campaign Begins
During the late 1960s, government interests in conjunction with the Montana League of Women Voters, initiated a campaign to replace the state’s constitution with a more “liberal” or “progressive” charter. A primary goal was to rid the state of the 1889 constitution’s restraints on state and local fiscal powers.
Those fiscal restraints were extensive. Some were designed to prevent corruption. 71 Others were adopted to forestall overspending of the kind that had propelled several states into bankruptcy. 72 Among other restrictions, the 1889 constitution banned legislative appropriations lasting longer than two years, 73 capped the property tax assessment of certain mines and mining claims, 74 required that local funds be raised locally rather than be raised statewide, 75 and forbade state debt for construction of railroads. 76 Additional provisions mandated referenda for raising the general property tax beyond a certain level, 77 raising state debt beyond $100,000, raising county debt over five percent of taxable property value, 78 and increasing local government debt beyond three percent of taxable value. 79
Those in favor of a new constitution tapped public resources to promote their cause. Notably, they induced the Montana Legislative Council, an arm of the state legislature, to issue a report on the subject of a new constitution. 80 This report was not a balanced document. It was a political manifesto. It argued that “more than 50 percent of the Montana Constitution is inadequate for today’s needs” 81 and that state constitutions should be “concerned with principles” rather than detail. 82 It further contended that the excess of detail in the 1889 constitution afforded insufficient flexibility and unduly constrained government fiscal authority: 83
Many of the complaints about constitutional limitations converge on the issue of the legislature’s power over state finances. The restrictions, including those on maximum tax rates, authority to incur debt, borrowing discretion, requirements for a popular referendum to approve taxes and debt, and the earmarking of funds, clearly impair legislative autonomy and integrity. These provisions are viewed by some as unrealistic and as hindrances to effective state government. 84
Regarding debt restrictions, the report alleged that they “limit[ed] the state in developing sound fiscal policies. 85
Those advocating a new state constitution then induced the legislature to create a Constitutional Revision Commission, also publicly funded. This body issued papers criticizing limits on government authority 86 and recommending that the legislature schedule a referendum for a constitutional convention. 87 Furthermore, the Revision Commission began a public relations campaign to persuade Montanans of the need for a new charter. 88 As part of the campaign the Revision Commission authored a pamphlet published by Montana State University (MSU). 89 The pamphlet asserted that a state constitution “should express only fundamental law and principle and omit procedural details except, of course, for procedural provisions in the Bill of Rights … . The legislature should be permitted to meet in annual sessions of unlimited length,” and “[m]ore authority, fiscal and otherwise, should be granted to local governments.” 90
MSU independently published another pamphlet entitled We, the People … An Introduction to the Montana Constitution. 91 It argued that the existing constitution was “cluttered with statutory details which obstruct adaptation to changing social, economic, and environmental conditions; it places restrictions on all branches of government that prevent them from dealing with modern problems … .” 92 This MSU pamphlet suggested a new constitution with a preamble modeled on that of Illinois and reciting various progressive aspirations: “to provide for the health, safety, and welfare of the people; eliminate poverty and inequality; [and] assure legal, social and economic justice … .” 93
The times were propitious for progressive change. The Anaconda Company, generally a conservative influence in Montana politics, was in decline, 94 and liberal forces were ascendant. 95 On November 3, 1970, when the legislatively-authorized referendum on calling a new convention was held, the governor, lieutenant governor, secretary of state, treasurer and superintendent of public instruction were all Democrats. So were both U.S. Senators, one of the two U.S. Representatives, and the state senate. 96 (In the 1972 general election the state house was to flip to the Democrats as well). 97 Of those participating in the convention referendum, 65 percent voted to authorize a convention. 98
The following year the legislature adopted an enabling act 99 scheduling the convention, and replacing the Constitutional Revision Commission with a Constitutional Convention Commission. The latter was to “undertake studies and research … compile, prepare and assess essential information for the delegates, without any recommendations … .” 100
B The Constitutional Convention
Convention delegates were elected on November 2, 1971. The elections produced an assembly tilted distinctly to the left: Of the 100 delegates elected, 58 were Democrats, 36 were Republicans and six were (generally liberal) Independents. 101 The partisan imbalance may understate liberal convention strength, for the Montana Republican party then included a large progressive element in the Theodore Roosevelt/Robert LaFollette tradition. Some Republican delegates certainly fit in this category. 102 Overall, the convention was, according to one liberal writer, “the most radical assembly the state had ever seen.” 103 While some Montanans did not see the convention as an invitation to radical change, 104 some of the most influential delegates did. 105
The assembly met on November 29, 1971 for a three-day organizational session. As president, it elected lawyer Leo Graybill, Jr., a passionate progressive. 106 It re-convened for business on January 17, 1972 107 and met until adjournment on March 24. 108
For all the convention’s liberalism, one cannot explain its relative unanimity—all 100 delegates ultimately signed the constitution 109 and only nine eventually opposed it 110—by its political composition alone. There were several contributing factors. One was the decision to break up the conservative minority by seating delegates alphabetically rather than by party or political composition. This decision was hailed as commendable non-partisanship, but a primary effect was to reduce the piercing examination of the majority’s proposals traditionally offered by a cohesive loyal opposition.
Another factor leading to relative unanimity was a ruling by the state supreme court that state legislators could not serve as delegates. 111 This eliminated as potential candidates many who might deploy political knowledge in opposition to the convention’s dominant sentiment. 112 As a result, most delegates were relatively inexperienced in government, and none, including the professors among them, seems to have had even an academic knowledge of constitutional law, history, or drafting. In that pre-Internet era, this left the delegates heavily reliant for technical information on speakers and on staff consultations and publications.
The convention leadership’s series of “distinguished speakers” uniformly promoted a progressive agenda. 113 All advocated, as one journalist observed,
the same idea of appointed officials, fewer legislators, one house instead of two, or a one-man Public Service Commissioner, with no speaker
urging that political power be retained in the hands of the people at every level. 114
The Constitutional Convention Commission produced a great deal of technical information for the delegates, but some of that information was biased as well. For example, the Commission reproduced the Legislative Council report discussed earlier 115 and the 1969 committee recommendations from the Constitution Revision Commission. 116 Both criticized the existing constitution at length, 117 particularly its fiscal limits, 118 but presented no alternative points of view. Similarly, the Commission reprinted a 1967 Montana Legislative Council report that compared the 1889 constitution, generally unfavorably, to those of other states. 119 The constitutions selected for comparison were those of Puerto Rico, Alaska, Hawaii, Michigan, New Jersey, and a “model constitution” produced by the National Municipal League.
This choice of constitutions was clearly gerrymandered. None of the documents selected derived from states adjacent to Montana, within the Rocky Mountain region, or, with the possible exception of Alaska, particularly comparable to Montana. 120 Yet the selection included one constitution from a jurisdiction that was not a state (Puerto Rico) and another—the National Municipal League model—that had never been adopted at all. The Convention Commission chairman’s explanation was that the documents included were “more recent” or “better.” 121
The inclusion of the National Municipal League model in a set of constitutions from which all states surrounding Montana were excluded illustrates the extent of League material included in the information provided to the delegates. The Constitutional Convention Commission provided the delegates with a bibliography of constitutional readings: of the 24 sources listed, 17 were League sponsored. 122 The Convention Commission also provided delegates with a pamphlet containing reports of subcommittees of its predecessor Constitution Revision Commission; that pamphlet repeatedly relied on League materials. 123 Furthermore, during the convention the leadership granted the League’s executive director, William N. Cassella, Jr., extraordinary and repeated access to the delegates. 124
The National Municipal League is not, of course, an unbiased source. It is a lobbying group that advocates for local government officials and promotes an agenda seen as favorable to its constituency. Its influence over the proceedings did not go unnoticed. As one journalist sympathetic to the convention observed, “[A] preponderance of research material furnished to the delegates seemed to come from one source (the National Municipal League and related groups) … .” 125
Unfortunately the press did little to counterbalance the skewed ideological environment in which the convention worked. Lee Enterprises, the owner of four Montana daily newspapers, composed and published a newspaper supplement with headlines echoing the prevailing ideological line: “Money straitjacket: can cords be cut?” the supplement asked. “The constitutional convention offers an opportunity to cut the cords of the financial straitjacket in which the 1889 framers clothed the legislature”. 126 The supplement further declared that “Rigid constitutional taxation provisions prevent the state from responding to rapidly changing social and economic needs by denying needed flexibility ” and that “The weight of modern constitutional thought is that a special tax situation has no place in a document of fundamental principles”. 127 “[C]onstitutional scholars emphasize,” the supplement added, “that the best constitutions are brief, simple statements of the fundamental, enduring principles of government”. 128 I have looked in vain through contemporary newspapers for any serious effort to investigate or balance these debatable claims. 129
Under such circumstances, even conservative-leaning convention delegates might well assume that the limits the 1889 constitution placed on state and local government were atypical or senseless.
C The Character of the New Constitution
The document produced by the convention has been described as “populist.” 130 Some of its provisions were of this cast, most notably its provisions for citizen initiatives. 131 But if populist government means directly responsive to the people, then in important respects the document was a less populist than its predecessor. Rather than dispersing power, the delegates generally adopted what was called a “short ballot” policy—that is lodging more power in fewer hands. 132 The new charter reduced the number of directly-elected executive officers, 133 and cut the size of both legislative chambers. 134 It also abolished referenda on nearly all fiscal decisions, 135 and expanded the authority of the executive branch at the expense of the legislature. 136 It increased the power of the judiciary at the expense of the legislature by including language that, because vague and untethered to historical content, enabled judges to make key policy decisions. 137 One influential delegate suggested the convention feared the people rather than trusted them. 138
The new constitution deleted most of the old constitution’s anti-corruption provisions, 139 extended state authority over the environment and natural resources, 140 deleted the two-year limit on legislative appropriations, abolished caps on state taxation, and left local caps to legislative decision. 141 It also permitted two thirds of state lawmakers to authorize an unlimited amount of state debt without a referendum. 142 Several provisions apparently created new constitutional rights, but some of these actually were, at least in part, transfers of entitlements from some citizens to others, with judiciary to oversee the transfers. 143 The delegates abandoned their goals of brevity, generality, and flexibility for the sake of retaining several provisions that buttressed government authority or exclusivity. 144
Liberal or progressive, in the colloquial sense of augmenting government power for good or ill, are thus more accurate descriptions of the result than “populist”. 145
D Structuring the Election to Ensure Victory
The 1889 constitution gave the convention power to “appoint[…]” an election for the vote on “such revisions, alteration, or amendments to the constitution as may be deemed necessary”. 146 The convention used that power to structure the election to the new constitution’s advantage.
A significant obstacle to ratification was the 1889 constitution’s requirement that convention proposals garner a “majority of electors voting in the election” rather than merely a majority of those voting on the question. The distinction was well understood: The convention enabling act repeated the constitutional language 147 and the Constitutional Convention Commission specifically addressed the challenge in its study of the enabling act:
“Since 25 per cent of the voters at general elections commonly do not vote on constitutional questions, convention proposals placed on the general election ballot almost certainly would not receive the vote of a majority of the persons voting at the election, as is required by the Constitution. 148
The Commission offered a solution: “This problem can be avoided by conducting a special election on the same day as the general election but not as part of the general election.” 149
Just in case this was not clear to the delegates, during the convention Marshall Murray, an attorney and chairman of the convention rules committee, described the issue in a memorandum to all convention officers, rules committee members, and committee chairmen. Murray wrote:
Another compelling reason for the calling of a special election is the statistic that nearly twenty-five percent (25%) of all electors voting in an election in which there is a special issue, failed to vote on the question of the special issue. Since a majority of electors voting in the election is required, it is probable, if not likely, that adoption could be defeated by “failure to vote” rather than by a negative vote.” 150
Although Murray’s memorandum was not addressed to all delegates, on February 5, 1972, all were provided with a copy of it.
Pursuant to his recommendation, Murray rose on the floor to move Resolution Number 10, providing for a special election on June 6. 151 He again explained the “majority of electors voting at the election” requirement and the plan to hold a special election so as to eliminate primary election voters from those “voting at the election.” 152 He further explained that separate ballots, poll books, and tally books would be used to segregate the constitutional referenda from the primaries. 153
Later in the convention, delegate John M. Schiltz introduced the proposed ballot and adoption schedule. He described the “majority of electors voting at the election” rule, employing a blackboard for illustrations. Schiltz emphasized that all six lawyers on the Style and Drafting Committee agreed on the required standard. 154 In the ensuing days, the convention discussed the topic several more times, always with the same understanding. 155
Meanwhile the delegates were considering how they might otherwise structure the election to increase the constitution’s chances of ratification. First, they opted for an early date. They did so to capitalize on convention publicity and curb the ability of opponents to organize. 156 They selected June 6, 1972, the day of the party primaries.
Next, the convention segregated into separate ballot questions two constitutional provisions most delegates favored, but thought would impair the instrument’s chances of ratification if inserted directly. One was a provision for a unicameral legislature 157 and the other was abolition of the death penalty. In addition, they decided to add a separate question on whether to abandon the state’s constitutional ban on gambling. 158
The convention segregated the constitutional issues from the party primaries by designating those issues collectively as a “special election.” This would eliminate citizens from the decisional denominator who voted only in the primaries, thus raising the chances that the “yes” votes on the constitution would comprise a majority of “electors voting at the election.”
Following recommendations of its committee on style, the convention next structured the special election ballot to further promote the constitution’s chances. The convention decided to employ paper ballots rather than the then-customary voting machines. The convention’s ballot form violated traditional rules of ballot neutrality by stating “You Should Vote 4 Times” 159—a legend later changed to “Please vote on all four issues.” 160
As Professor Ellis L. Waldron observed, “Many delegates believed that to make legalization [of gambling] depend on the ratification of the constitution would gain votes for ratification by determined advocates of gambling.” 161 Accordingly, the ballot informed electors that “If the proposed constitution fails to receive a majority of the votes cast, alternative issues also fail.” 162 Thus, the ballot communicated that only if the constitution was adopted would legalized gambling be possible.
The convention also sought to piggyback the constitution on the popular issue of the death penalty. Montana already employed the death penalty, so normally one would expect a “yes” vote to favor a change from the status quo—that is, for abolition. However, the convention drafted the ballot to phrase the question the opposite way, so the elector had to vote “yes” to continue the death penalty. Because of the ballot legend stating that if the constitution failed alternative issues would also fail, some may have been misled some into believing the only way to save the death penalty was to vote for the constitution.
Hence, the administration of the referendum as a separate election, the timing of the election, and the structure of the official ballot form all were carefully designed to inflate the constitution’s share of the popular vote.
E The Ratification Campaign
During the ratification campaign, liberal and pro-government groups strongly promoted the new document. 163 Of course they did not emphasize that their proposal would restrict popular referenda on taxes and debt or reduce the number of elected offices. Instead they focused on the new constitution’s flexibility, its relative brevity, and the benefits of relying more on legislative decision making. 164
At times during the campaign the new constitution’s advocates felt beleaguered, 165 but overall they enjoyed enormous advantages over their opponents. Two daily newspapers endorsed the constitution, while none opposed it. 166 News coverage was consistently favorable. As one sympathetic observer noted, “the press … started campaigning for the constitution with non-stop headlines … . The small but vocal campaign by convention delegates urging ratification was rarely balanced by coverage of opposition arguments.” 167 Advocates, by reason of the convention and several years of preparation, already were organized, but the scattered distribution of Montana’s population rendered it difficult for opponents to marshal their forces within the available time. 168 Numerous civic associations supported the “pro” campaign, 169 but only a few, such as the Montana Farm Bureau 170 and the Montana Contractors Association, 171 actively opposed ratification. The voices of others who might have opposed the constitution were muted. 172 The state Chamber of Commerce—often considered a center-right organization—took no position. 173 In fact, one Chamber chapter endorsed the document. 174 The Montana Taxpayers Association published critical information, but principally urged its members to “Study the Constitutional Issues.” 175
F The Understood Margin Required for Ratification
During the proceedings in the Cashmore case, the constitution’s opponents claimed the voting public was led to believe that ratification would require the affirmative vote of all participating in the election, and that failure to vote on an issue was effectively a “no.” 176 This was true. Indeed, it was so true that the opponents can be charged with significant understatement.
First, the standard was fully aired and explained in the Montana press. When Marshall Murray, who chaired the convention rules committee, issued his memorandum on the standard, the Associated Press reported its content. 177 Shortly thereafter, a Great Falls Tribune article elucidated the issue for the general public:
This means that more than half of the persons voting at the election must vote on each proposition for it to pass … . In other words, if 100,000 Montanans voted in the election, yet cast less than 50,001 votes for or against any one proposition, that proposition would fail. 178
On March 24, the day the convention adjourned, the Billings Gazette ran two articles explaining the “majority of electors voting” standard. 179 Many similar articles appeared in newspapers throughout the state explicating the rule as it pertained to some or all ballot issues. 180
Second, when using government resources to campaign for constitution, advocates repeatedly explained the “majority of electors voting” standard. During the convention, its leadership had applied for a federal grant for “public education,” and the convention set aside $11,000 for a film on the convention. 181 The Montana Supreme Court foiled efforts to employ convention funds this way, 182 but advocates found other public sources. They seem to have used some to contribute to a pamphlet that, while billed as a “Critical View” of the constitution, still concluded that its “good points do outweigh the bad points.” 183 This publication explained that a ballot issue needed a majority of those participating in the election, not merely a majority of the yes/no vote. 184
Similarly, employees of Montana State University used state and federal resources to produce, print, and distribute a newspaper supplement promoting ratification. 185 The authors were MSU Professors Pierce C. Mullen and Richard Roeder, the latter of whom had served on the Constitutional Revision Commission 186 and as a convention delegate. Their supplement was twelve pages long and elaborately illustrated with drawings of an engaging young cowboy. It was inserted in all Montana daily newspapers. The supplement masqueraded as objective, even featuring a statement that it had been “reviewed for … objectivity by Mrs. Margaret S. Warden, Mrs. Thomas Payne and Mr. Fred Martin.” In fact, the text was strongly pro-constitution, 187 and failed to disclose that Warden, Payne, and Martin—those purportedly assuring “objectivity”—all had served as convention delegates and strongly supported the constitution.
This supplement fully explained the “majority of electors voting” standard, noting that each measure required a majority of the total vote on all measures to pass. 188 It warned of the consequences of abstaining: “If you fail to vote on any item, you will aid in its defeat”. 189 Each issue would need more than a majority of the yes/no vote; it would need a majority of everyone who cast a vote on any of the four issues.
Furthermore, the same assumption guided Montana’s election officers and influenced their communications with the public. In the official voter information pamphlet distributed to all electors before Election Day 190 was a sample ballot structured with the “majority of electors voting at the election” rule in mind. It admonished electors to vote on all issues and warned them that if the constitution did not pass, all other issues would fail. 191 The secretary of state sent instructions to county election officers emphasizing the importance of entering “the total number of electors who are listed on the poll books for the separate election on the proposed constitution.” 192 Accompanying the instructions was a form entitled “Election Returns,” which identified the special election as the “Ratification or rejection of the proposals of the Constitutional Convention”. 193
In sum, the required majority by which the constitutional issues would pass or fail was communicated to every Montanan paying attention.
G The Referendum Results
The election returns showed the voters were clear about some issues. The proposal to continue the death penalty garnered 65 percent of the yes/no vote. Large majorities opposed a unicameral legislature (56 percent) and wanted to permit the state to authorize gambling (61 percent). But despite all its campaign advantages, the constitution fell short of the required majority. It won slightly under 50.6 percent of the yes/no tally, but garnered less than 49 percent of the total special election vote as reported by the secretary of state. About a third of those issued ballots failed to vote on the constitution, 194 perhaps from understanding that abstention meant “no.” Thus, the constitution fell 2386 votes short. In 44 of Montana’s 56 counties it failed to garner even a majority of even the yes/no vote. 195
IV The Proclamation, the Lawsuit, and the Decision
Before the election, the convention leaders had shared the common understanding that “a majority of the electors voting at the election” meant a majority of all voters participating. 196 Once they saw the election results, however, they turned on a dime. They now claimed that “a majority of the electors voting at the election” meant only that the “yes” vote had to be greater than the “no” vote. 197 The lawyer-delegates, who during the convention had been unanimous in affirming the former meaning promptly began to argue for the latter. 198
Overruling the scruples of Frank Murray, the Democratic Secretary of State, 199 Governor Forrest Anderson, also a Democrat, signed a proclamation of ratification on June 20, 1972. 200 A fierce argument ensued between Murray and Anderson, 201 but the governor remained fixed. When Murray objected that the governor had not signed the document in his presence, Anderson scrawled his signature on the document a second time. 202 The proclamation shows one signature superimposed on an earlier one. 203
U.S. District Judge Charles C. Lovell, who as a young lawyer argued Cashmore for the state attorney general’s office, says he was never quite sure of Anderson’s motives in signing—whether he believed the constitutional majority standard didn’t mean what everyone said it did, or whether he was putting on a political show. 204 The grandiose language of the news release accompanying the proclamation is consistent with the latter: “Government must be free to act,” Anderson declared, “and I proclaim the passage of this Constitution, declaring it to be a major step in that direction.” 205
Contemporaneously with the signing, lawyers for William C. Cashmore, a Helena physician, and Stanley C. Burger, executive director of the Farm Bureau, 206 appeared before the Montana Supreme Court. In separate but substantively identical applications the two of them—styled “relators” in the pleadings—asked the court to assume original jurisdiction, emphasizing the importance of the case and claiming there were no factual disputes. For relief they requested an order directing the governor to appear and show cause why the new constitution should not be declared invalid. They further asked for an injunction or, alternatively, a writ of prohibition preventing the governor from proclaiming ratification. 207 But the governor had signed a just few minutes earlier, rendering their requests for an injunction or writ of prohibition moot. 208 Accordingly, the court, in an order issued two days later, treated their applications as requests for a declaratory judgment. The order recited an earlier, presumably oral, order consolidating the two cases. It further recited the absence of factual issues, fixed a schedule for response, and invited other interested parties to intervene or file briefs as amici curiae. 209
On June 28, the governor filed his answer and a supporting brief. 210 He did so pro se, although the documents likely were drafted by his chief of staff, William Crowley, a University of Montana law professor and civil procedure expert. 211 The governor admitted there was no factual dispute, but contested the relators’ interpretation of the law. On June 20, at Lovell’s recommendation, the Republican attorney general requested permission to intervene to support the Democratic governor, and the court immediately granted this request. 212 On July 11, the court scheduled oral argument for July 17. 213 On July 11 also Burger filed his principal brief, and Cashmore did so the following day. 214
As in the referendum campaign, the constitution’s opponents found themselves outgunned. Intervening to support the governor and the attorney general were the City of Billings, Montana’s largest municipality; Robert L. Kelleher, a lawyer who had served as a convention delegate; and a group of former delegates led by Leo Graybill, Jr., the convention president. Submitting amicus curiae briefs on the same side were five organizations, including Common Cause and the League of Women Voters. 215 No organization or governmental unit supported the relators. They were backed by four amici, all individuals, and a single group of six individuals. 216 Among the pro-relator amicus briefs, only that of Billings lawyer Gerald J. Neely represented a respectable effort. 217
The relators soon faced a more serious disadvantage. The court had assumed original jurisdiction on the premise, accepted by all, that there was no factual dispute. The relators, their supporting intervenors, and their allied amici had prepared their briefs on that supposition. Then, on July 12—a scant five days before oral argument and more than three weeks after receiving permission to intervene—the attorney general filed his formal answer. 218 This document challenged for the first time the consensus that there was no factual dispute.
The attorney general’s answer, backed by a brief filed two days later, 219 contended that the number certified by the secretary of state as the total voting was an overstatement. According to the attorney general, the secretary of state’s figure included all ballots issued to electors at the polls, including those that were blank, mutilated, discarded, or otherwise not properly voted. “[T]he total number of individual electors voting at such election,” the attorney general stated, “is some number less than, and perhaps markedly less than, 237,600.” 220
Apparently several intervenors and amici allied with the governor knew in advance that the attorney general had this surprise planned, because within two days the Graybill intervenors, the League of Women Voters, and Common Cause all had filed briefs focusing on the new factual dispute. 221
Under these circumstances, the court could have pursued any of three defensible courses. The best would have been to remit the case to a trial judge for a hearing on the factual question—and, preferably, for development of the legal issues as well. The second best would have been to employ a special master to resolve the factual question. A barely-defensible option would have been to postpone oral argument and afford the relators time to investigate and respond. But the court adopted none of these courses. Instead, it retained original jurisdiction and proceeded with oral arguments as scheduled.
Those arguments were held on July 17, with numerous convention delegates peering from the courtroom galleries. 222 Judge Lovell says that he focused his argument on dicta from a 1902 case because the dicta had been composed by Montana’s longest serving Chief Justice, Theodore M. Brantley. 223 Lawyers speculated that Justices Frank I. Haswell and Gene B. Daly probably would vote for the new constitution because they were more liberal, while Chief Justice James T. Harrison and Justice Wesley Castles, who were relatively conservative, would oppose it. The swing justice was said to be Justice John C. Harrison. 224
On the face of it, those predictions seem to have been confirmed. 225 On August 18, 1972, the court ruled 3-2 in favor of the governor and for ratification, holding that a majority of the vote on the issue was sufficient. Justice Haswell wrote on behalf of a majority that included Gene B. Daly and John C. Harrison. James T. Harrison penned the dissent for himself and Castles.
V Cashmore’s Majority Opinion
In view of the importance of the case and its departure from previous authority, it would be gratifying to report that Justice Haswell’s opinion was rigorously researched, carefully written, and powerfully argued. Unfortunately, such a report cannot be made. Indeed, the opinion’s organizational defects are such that reorganization is necessary before analysis can be attempted. When reorganized, Justice Haswell’s opinion coalesces into six fundamental propositions:
- The framers did not clearly require an “extraordinary majority” because “a majority of electors voting at the election” is ambiguous.
- The precedents from other states are in hopeless conflict.
- The Montana precedents favor a simple majority.
- “Natural right” favors a simple majority rather than an extraordinary majority.
- The constitution’s variation in language is explainable on grounds other than variation of meaning.
- The constitution was adopted even under the relators’ understanding of the rule.
We consider each point, in turn.
A The Court’s Claim that the Constitutional Language was Ambiguous
After noting that rules of statutory construction apply to interpreting the constitution, 226 Justice Haswell conceded that “a literal construction would seem to support relators” 227—that is, “electors voting at the election” seems to mean everyone who voted on any issue. He then proceeded:
The quoted language speaks of approval ‘by a majority of the electors voting at the election’. But voting on what? The constitutional language does not expressly answer this. However, the substance of the language of the entire provision indicates that it refers to voting on approval or rejection of the proposed constitution, and it is to that question that the quoted language is directed. There is absolutely nothing to indicate that the framers had in mind a multiple issue ballot wherein contingent alternative issues would be submitted to the electors in addition to the primary question of approval or rejection of the proposed constitution itself … . The best that can be said for relators is that the quoted language is ambiguous when read in connection with the entire constitutional provision relating to submission of the proposed constitution to the electors. 228
One problem with this passage is that the constitutional language clearly did contemplate a multiple issue election. It authorized the convention to refer to the voters “such revisions, alteration, or amendments” as may be deemed necessary.” 229 The legislature providing for the convention referendum interpreted it that way, as had the Constitutional Convention Commission. 230 As the dissent pointed out, 231 in a case decided just the previous year Justice Haswell himself had noted with apparent approval the referendum’s provision for multiple issues. 232
A more fundamental weakness is that Justice Haswell’s rhetorical question, “But voting on what?” is irrelevant to the constitutional denominator. That denominator is based on the number of electors voting in the election, not the issues on which they vote. In other words, the court found ambiguity not in the constitution’s actual language, but in hypothetical language different from what the document actually said.
Later in the opinion, Justice Haswell cited several constitutional provisions requiring super-majorities—that is, heightened decisional numerators. 233 He then returned to the issue of ambiguity:
Finally, if the framers of our Constitution had intended to require an extraordinary majority for approval of a proposed constitution submitted by an elected constitutional convention, they could easily have said so. Our Constitution contains several provisions requiring extraordinary majorities, but wherever such requirement is imposed the language is loud, clear and unambiguous. … Here, we are simply not satisfied that the framers of our Constitution intended to require more than a simple majority vote on approval of the proposed constitution. 234
Of course, the provision at issue required only a simple majority, not an “extraordinary majority.” The change from the default rule was not in the numerator but in the denominator. Just as critically, the framers did indeed “sa[y] so.” As explained in
Part II, at the time they inserted the heightened denominator language into the 1889 constitution, that denominator’s meaning was universally understood.
B The Court’s Claim that Precedents from Other States Were in Hopeless Conflict
On this subject, Justice Haswell wrote for the court:
We recognize that there are two distinct and opposing lines of authority in other jurisdictions having the same or similar constitutional language. … These cases are cited merely to indicate the two conflicting lines of authority but are not relied upon or determinative of our decision in the instant case. We prefer to look to Montana statutes and cases for guidance in interpreting the meaning of our own constitutional provisions. 235
In fact, there were not “two distinct and opposing lines of authority.” Those cases equating “a majority of electors voting at the election” with “a majority voting on the question” arose from single issue special elections. In other words, they differed only in the scope of the election, not in the meaning of “a majority of electors voting.” 236 As the Cashmore dissenters pointed out, the alleged split of authority was more apparent than real. 237
This passage seems to have served the rhetorical purposes of dismissing all authority but two Montana cases on which the court’s majority wished to rely.
C The Court’s Claim that the Montana Precedents Favored a Simple Majority
Having disposed of other authority, Justice Haswell opined that “we must consider the policy and philosophy of government contained in our Constitution as enunciated in numerous [Montana] cases … . ” 238 Those “numerous” cases turned out to be two: Tinkel v. Griffin 239 and Morse v. Granite County. 240
Tinkel involved a one-issue special election, so the number of votes in the election was identical to the number of votes on the issue. 241 In addition, the constitutional provision at issue in Tinkel was worded differently from the governing provision in Cashmore. The clause relevant to Tinkel required that for a county bond issue to pass, approval was necessary by “a majority of the electors thereof, voting at an election”. 242 Thus, the provision relevant to Tinkel, unlike that relevant to Cashmore, featured a comma before the word “voting.” This signals, of course, that the ensuing phrase is not restrictive—that is, the ensuring phrase does not define or limit the meaning of “electors.” (This use of the comma as a non-restrictive signal was paralleled elsewhere in the 1889 constitution. 243) A county bond issue, in other words, needed approval by a majority of all electors. The statute implementing Article V, Section 13 interpreted the comma as non-restrictive as well, for it required approval by “a majority of the electors of the county.” 244
As noted earlier, 245 some cases interpret “a majority of electors” to mean either (1) the majority of electors voting or (2) a majority voting on the question. One can classify Tinkel among the second group. But that was not relevant to the interpretation of the clause at issue in Cashmore. 246
Morse v. Granite County 247 was in all relevant respects identical to Tinkel. In Morse the court stated that the single issue referendum had been offered at a general election, but closer examination of the court’s opinion shows that the referendum actually was a single-issue special election held concurrently with the general election: It was a one-county affair characterized by a separate call, separate notice, and separate ballots. 248 Moreover, it was a county bonding referendum, subject to the same constitutional and statutory provisions that governed Tinkel. 249
Justice Haswell must have understood that neither Tinkel nor Morse dictated the answer in Cashmore. 250 This explains why he glossed over the law and facts governing those cases in favor of dicta in Tinkel, which he cited primarily as evidence of “policy and philosophy.” 251
D The Court’s Claim that the 1889 Constitution’s Variation in Language was Explainable on Grounds Other than Variation of Meaning
There is a presumption that when a legal document employs different phrases the phrases carry different meanings. 252 However, in writing for the court Justice Haswell stated that the “differences in the language employed by the framers of our Constitution in the different election provisions … are no evidence of a differing intent on the part of the framers, but are the result of inherent constitutional differences in the elections themselves, which in turn requires different language.” 253 He explained:
The first part of Section 8 relating to calling a constitutional convention requires a referendum vote by “a majority of those voting on the question”; Section 9 dealing with submission of individual constitutional amendments by the legislature requires referendum to the qualified electors and approval “by a majority of those voting thereon”. That part of Section 8 we are called upon to construe requires . . . approval by ‘a majority of the electors voting at the election”.
The reason for the difference in language between these three provisions is readily apparent. The referendum to the voters on the calling of a constitutional convention is normally held at a general election as was done here; consequently, the phrase requiring “a majority of those voting on the question” was employed to distinguish the constitutional referendum question from other general election issues.
The language of Section 9 relating to submission to the electors of individual constitutional amendments proposed by the legislature must be at a general election where up to three such amendments can be submitted at the same election, thus the language “approved by a majority of those voting thereon” is used.
The language of Section 8, that we must construe.—“a majority of the electors voting at the election” was used because a separate election is required for approval or rejection of a constitution proposed by a constitutional convention and there is no need to differentiate between approval or rejection of a proposed constitution at such separate election and issues at some other election held at the same time. 254
Yet this passage adds text to the 1889 constitution that was not present. It states, “The referendum to the voters on the calling of a constitutional convention is normally held at a general election as was done here,” but nothing in the constitution so required. It required only that the legislature “submit [the proposal for a convention] to the electors of the state.” 255 Nor was there any evidence that including the referendum in a general election, as in 1970, was any more “normal” than holding a special election for the purpose. The claim that “a separate election is required for approval or rejection of a constitution proposed by a constitutional convention” was similarly without textual basis. The constitution required only that the convention designate an election for the referendum; there was no requirement that the election be general or special. 256
Thus, Justice Haswell’s opinion created distinctions between elections that did not exist. And without them, no reason remained for disregarding the presumption that different language signifies different meaning.
E The Court’s Claim that “Natural Right” Favors a Simple Majority Rather than an Extraordinary Majority
“We are mindful of the principle,” Justice Haswell wrote,
that when a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. Section 93-401-23, R.C. M. 1947. Majority rule is a natural right and fundamental tenet of government in a democracy, and only the strongest evidence that something more than a majority, i.e., an extraordinary majority, is required in a given situation will suffice. Here no such evidence exists.
Of course the differences between the parties arose not from differences about majority rule but about the group from which a majority is determined. The dispute was over decisional denominators rather than numerators. More importantly, perhaps, Justice Haswell cited no authority for the proposition that majority rule is a matter of natural right. On the contrary, one reason super-majority requirements appear in constitutions is to better protect the “natural rights” of individuals and minorities. 257
F The Court’s Claim that the Constitution Was Adopted Even Under the Traditional Rule
Near the end of his majority opinion, Justice Haswell alluded to the factual issue raised by the attorney general: The secretary of state reported 237,600 electors as voting, but that figure may have included all those receiving ballots rather those who cast them properly. 258 Justice Haswell therefore determined that “the figure of 237,600 labeled ‘total number of electors voting at the election’ on the Secretary of State’s certificate is demonstrably incorrect, and the disputable statutory presumption of correctness of such figure … must yield to the facts.”
Certainly the court should have yielded to the facts, but it neither ordered a recanvassing nor appointed a fact-finder to determine what those facts were. Instead, the majority opinion insisted that
We can make that determination on the materials before us. If we take the total number of electors who cast ballots that were counted on the issue receiving the largest total vote, this should approximate the total number of electors voting in the election. 259
Accordingly, the majority added together the number of votes on the most-voted for issue in each county—that is, the gambling question in 18 counties and the constitution in the remaining 38. This yielded a total of 230,588 voters. The constitution, wrote Justice Haswell, was ratified under the traditional rule because the affirmative vote of 116,415 represented a majority of 230,588. 260
Unfortunately, these calculations demonstrated a lack of numerical understanding. In absence of specific legal authorization, one cannot employ the most-voted-on question as a proxy for total votes cast because some electors opt to vote only on issues other than the most-voted-on question. Consider the hypothetical five-voter election posited above: 261
- *Elector 1 votes for governor and on Proposition A.
- *Elector 2 votes for governor, senator and on Propositions A and B.
- *Elector 3 votes for governor, senator, and on Proposition B.
- *Elector 4 votes for senator and on Proposition A.
- *Elector 5 votes on Proposition A only.
The most voted-on candidate or issue is Proposition A—four votes. But that was not the number of electors who voted (five), because Elector 3 voted for the candidates and on Proposition B, but not on Proposition A.
Nor was this a merely theoretical concern in the actual referendum:
- Advocates of the constitution, the press, and presumably election officials repeatedly told the electors that an abstention on any proposition was effectively a vote against it. 262 The death penalty was, as it is now, a subject of passionate views. Those who went to the polls to vote for the death penalty, particularly social conservatives, had reason not to bother voting on the other (more liberal) proposals. The court’s count omitted all of those voters.
- Gambling was also contentious. No doubt there were single-issue voters who went to the polls to cast their ballot on gambling and nothing else. The court’s count omitted electors who chose only to vote on gambling in counties where the constitution was the most-voted-on issue.
- Some people in the eighteen counties where gambling was the most-voted-on issue may have chosen only to vote on the constitution, on unicameralism, and/or on the death penalty. The court’s count omitted them as well.
In other words, the court’s estimate omitted every elector in 36 counties who cast a ballot but decided not to vote on the constitution and every elector in the other eighteen counties who cast a ballot but decided not to vote on gambling. The number omitted may have been very significant—but even an undercount of less than one percent would have raised the denominator sufficiently to depress the constitution’s percentage below the necessary majority. 263
VI Chief Justice Harrison’s Dissent
Chief Justice James T. Harrison’s dissenting opinion 264 was structured in a peculiar manner. It revealed signs of piecemeal drafting, with different parts written at different times and perhaps by different authors.
As finally issued, the dissenting opinion began with a preface of about 660 words. This preface was haunted by a spirit of exasperation. It recited earlier proceedings and complained that the majority was not acting in a consistent manner. It specifically criticized Justice Haswell for contradicting his own statement in an earlier case. 265
After the preface came the core exegesis. It was composed in the indicative mood. 266 It consisted of about 6300 words, of which more than half—a recital of authorities—was cribbed nearly verbatim from Dr. Cashmore’s principal brief. 267 The core exegesis also borrowed from an exhaustive amicus brief by Billings lawyer Gerald J. Neely. 268 Near the end of the core was a 150-word insert written in the subjunctive mood, 269 after which the opinion returned to the indicative. 270 The last three paragraphs were written in the subjunctive and served as a conclusion. 271 Like the preface, this conclusion is testy in tone. 272
From the overall structure it appears that the core exegesis was to be the majority opinion, but when it became clear the writer or writers did not command the majority, he (or they) interlineated the 150-word passage, added the frustrated preface, and appended the testy conclusion.
Supporting the hypothesis of piecework composition are some other oddities. One passage was incoherent and another bore no relation to the remainder of the text. The incoherent passage appeared in the portion of the opinion that agreed with the holding in Tinkel:
We have no argument with that philosophy. The same argument is applicable to the case at bar because the total number of votes for the proposed constitution may have been less than a majority of those who voted on that separate issue. 273
Perhaps the writer intended to say he agreed with Tinkel insofar as it limited the decisional denominator to those who voted in the special election, but that Tinkel was inapplicable because the proposed constitution may have received less than a majority of those who voted in the special election.
The passage without relation to anything else in the opinion was as follows:
We would find then that ‘positive assent’ is the same as ‘a majority of the electors voting at the election’. This positive assent is referred to by many writers and courts as an extraordinary majority. 274
This passage appears to have been dropped into the opinion by mistake. There is no other reference to “positive assent” in either the majority or dissenting opinions. The passage derives from the part of Neely’s brief that explained the “majority of electors voting at the election” requirement as one that ensured that ratifiers approve by positive assent rather than by silence. 275
The coherent portions of the dissent’s core exegesis cited and reproduced extracts from constitutional provisions and from eight decided cases defining “a majority of electors voting at the election.” It then distinguished Tinkel and Morse, and finally discussed the factual question of how many voted in the special election. 276 It argued that the number of electors who voted was “the critical, controlling fact figure,” 277 and that the court should order a “recanvass” [sic] to resolve it. Apparently, this process would involve only requiring each county election officer to clarify whether the number of voters he or she submitted to the secretary of state consisted of all ballots issued or only of ballots legally voted.
Despite its length, the dissent suffered from several lost opportunities. First, its author(s) should have contended that original jurisdiction had been improvidently granted or, once granted, should have been revoked after the factual issue surfaced. The factual issue—and, indeed, the complex and important legal issues—justified careful consideration at the district court level, or at least by a special master.
Second, the dissent should have noted the unfairness of the proceedings: Five days before the hearing—after all parties had agreed that there was no factual dispute and after the briefs of the relators and their allies had been prepared—the attorney general and his allies produced a factual dispute. Under the circumstances, the court should have postponed the hearing, asked the relators for briefs on the factual issue, or otherwise permitted an opportunity for response.
Third, the dissent strung together a list of relevant cases, but failed to draw two necessary conclusions: One was that the phrase “a majority of electors voting at the election” had a clear, accepted meaning, not a disputed or debatable one. The other was that this was also the meaning when the voters ratified the 1889 constitution. It was this understanding that should have governed the case, not the “philosophy” of the Tinkel dicta issued thirteen years later.
Fourth, the dissent failed to show how that meaning, and the public message that an abstention meant “no,” invited those who opposed the constitution to abstain.
Fifth, the dissent failed to mention how the manipulated structure of the paper ballot could have affected the election results. For example, contrary to the standard practice (followed for the other three propositions) that a “yes” vote is a vote to alter the status quo, the ballot provided that a “yes” vote continued the death penalty. It also advised voters that “If the proposed constitution fails to receive a majority of the votes cast, alternative issues also fail.” 278 Hence electors who contributed to the landslide majority in favor of the death penalty might well have voted for the constitution only because they were misled into believing that without the new constitution Montana could no longer inflict the death penalty.
Finally, the dissent failed to challenge the majority’s erroneous claim that the number of electors casting ballots on the most voted-upon issue was equivalent to the total number of electors voting.
VII The Motion for a Rehearing
On September 5, Burger filed a petition for rehearing. The petition included extensive argument. Much of it represented a futile effort to persuade the court to reconsider its legal conclusions, but it also included the first written rebuttal of the attorney general’s claim of factual dispute. The petition pointed out that county election officials copied the voter numbers they sent to the secretary of state from their “poll books,” and that under state law a poll book recorded only those who actually cast valid ballots, not everyone who was issued a ballot. Attached to the petition were affidavits from two county clerks affirming that the numbers they transmitted represented only those who had properly voted. 279
The Burger petition also featured elaborate statistical examples showing that the number of votes on the most-voted-upon issue was not the same as the total number of electors participating in the election.
The following day, Dr. Cashmore also filed a petition for rehearing. Cashmore’s petition noted that the constitutional referendum was part of a multi-issue special election, and discussed cases arising in such elections. It also urged a “recount” of the vote. 280
The attorney general’s response accused the relators of trying to re-litigate issues the court already had decided. 281 After the filing of some additional papers—among them two very short amicus briefs in support of the relators but not really on point 282—the court denied re-hearing without explanation. The vote for denial was the same 3-2 tally that resulted in the initial decision. 283
The denial was, in retrospect, probably inevitable. The petitions contained little more on the legal issues than that already offered by the parties, intervenors, or amici in the earlier proceedings. The Burger petition, it is true, demonstrated clearly the error in equating the vote on the most-voted-on issues with “electors voting at the election.” Additionally, it cast doubt on the conclusion that there were fewer than 237,600 actual voters. But the statistical portion of the court’s opinion had been dicta anyway.
VIII The Aftermath
After the Montana Supreme Court issued its decision on rehearing, Dr. Cashmore surrendered, as he earlier had announced he would. 284 Burger appealed to the U.S. Supreme Court, which denied certiorari. 285 He next sued in federal district court, claiming that, in violation of the Fourteenth Amendment to the U.S Constitution, the state had misled voters by informing them that an abstention on the constitution was a “no” vote. 286 He was joined by another voter, who alleged that he
was one of the 7,302 electors who did not vote on the constitution ... . He testified in his deposition that he voted for a bicameral legislature, gambling, and the death penalty, and that he understood that if the proposed constitution failed “the alternate issues also fail.” He failed to vote on the proposed constitution for two reasons: first, because he did not know enough “about the issues involved”, and second, because he felt that if he did not vote, “it was a vote against it.” He had read the ballot and the newspaper supplement. [His] wife voted as he did. 287
However the district court found no Fourteenth Amendment violation:
There is no suggestion that any publication or statement, either official or unofficial, was intended to misrepresent any facts or deceive or mislead the voters. The official ballot and publication followed the language of the existing constitution. The other statements at most contained an erroneous interpretation of an ambiguous provision in the Montana Constitution—an interpretation deemed correct by two of the five justices of the Montana Supreme Court.
In no document was there any advice or suggestion that the electors should not vote on the proposed constitution. On the contrary, the unofficial as well as the official publications urged a vote on all four issues. 288
The court added that the newspaper supplement was an “unofficial” document and that if “any electors were in fact misled, they were simply mistaken as to the effect of their abstention from voting and not deprived of any right or opportunity to vote … . ” 289
Although most election errors do not constitute Fourteenth Amendment violations, this decision is somewhat disquieting. Surely the Montana public was entitled to assume the constitutional language would be interpreted as represented by all concerned, with abstentions being counted as “no” votes. Perhaps Montana officials can be accused of changing settled election rules after the election was over—which surely is a Fourteenth Amendment violation. 290
IX What Happened?
When the court granted original jurisdiction it did so upon the representation by all parties that there were no unresolved issues of fact. Once it became clear this was not true, a prudent tribunal would have remitted the case to a trial judge or at least to a special master. If the trier of fact found that a critical number of ballots issued were not validly cast, the constitution would have been ratified under the traditional rule, and there would have been no need to spend court time on exhaustive treatment of the law. Even in the absence of a factual dispute, the case could have benefited from lower court review because of the extensive amount of case law interpreting the phrase “a majority of the electors voting at the election.”
Why did the court retain original jurisdiction in such circumstances? Cashmore is not the only case in which the Montana Supreme Court’s exercise of original jurisdiction amounted to judicial malpractice, 291 but it was certainly the most important. And another question is “Why, having retained jurisdiction, did the justices decide to abandon a settled rule of law on which all parties, no matter what their views on the new constitution, had relied?”
The answer to the latter question may be simply because Charles C. Lovell from the attorney general’s office, funneling his appeal through the words of Montana’s longest-serving chief justice, out-argued the constitution’s opponents. Otherwise, the two questions may have some common answers. First, there is a substantial body of research showing that the decisions of judges, in particular elected judges, are influenced by personal incentives and judicial self-interest. 292
It is not disrespectful to the Montana Supreme Court to observe that the justices had powerful incentives to short-circuit the judicial process and uphold the 1972 constitution. The new constitution’s omission of fiscal limitations could be expected to increase funding for the judiciary. The greater scope for legislation and some of the new constitution’s open-ended language promised more judicial business and more scope for judicial efforts to “do good.” The new constitution also extended the justices’ terms of office from six years to eight. 293
Additional influences on the justices may have arisen from their daily associations: They were, after all, public employees and human beings. They were in the hub of a county that awarded the new constitution the second highest percentage of any county in the state. 294 The information flow in Helena at the time was such that they would have been inundated with claims that the new constitution was good for Montana. It was unlikely they had encountered any coherent, intelligent arguments to the contrary. 295 They worked in the same building as the governor, and the fact that they already had issued one decision against the movement for a new constitution 296 may have discouraged them from issuing another. 297
The justices may have been subtly affected also by the foreseeable consequences of alternative outcomes. It seems all but certain that the constitution’s advocates would have “punished” an adverse decision, perhaps with continued litigation and perhaps through mass media favorable to the new constitution. A decision against the constitution, on the other hand, entailed fewer costs. The constitution’s opponents had demonstrated their media ineptitude during the ratification campaign, and Dr. Cashmore had made a tactically unwise public statement ruling out in advance any federal court proceedings. 298 It was not then known that Burger was determined enough to proceed without him.
In such circumstances it is not remarkable that three justices voted to short-circuit the process, disregard precedent, and rule the constitution ratified. It is perhaps more remarkable that two justices did not.
Why, then, having decided to retain original jurisdiction and abandon the traditional rule, did they not take more time and care in organizing and composing their opinions?”
Part of the answer to this question may lie in the proceedings within the court’s chambers. Some insiders claim the initial vote among the justices was 2-3 against the constitution, that each side prepared an opinion on that basis, that one justice switched sides, and that both opinions had to be re-written. 299 This claim is corroborated by the structure of the dissent. As noted earlier, its core exegesis shows signs of having been composed as the opinion of the majority. Its preface and conclusion display a sense of exasperation the core exegesis does not show, and may have been tacked on later. 300 Moreover, the court’s decision was unaccountably delayed, and work continued feverishly right up to the very day Associate Justice John C. Harrison was to leave on a European vacation. 301
If the initial vote was 2-3, then who switched? The person usually identified is the affable John C. Harrison, 302 the same justice whom experienced attorneys identified early as the likely swing vote. 303 To be sure, there is some evidence Justice Harrison did not switch. First, he subsequently denied changing his position. 304 Second, even before the case was heard Harrison had acknowledged that in the referendum he had voted for the constitution. 305 Of course, a judge is not supposed to take his or her political preferences into account in deciding the law, but in practice this can be a difficult abstraction to apply, and it can be particularly difficult for a judge with circumscribed legal abilities—which Harrison certainly was. 306 Finally, the target of the dissent’s exasperation was Justice Haswell, not Harrison. 307
But several reports nevertheless identify John C. Harrison as the justice who changed his vote. According to a prominent constitutional convention delegate, someone leaked the story of the 2-3 preliminary tally (with Harrison voting against) to U.S. Senator Lee Metcalf, a strong advocate of the new constitution. Accordingly, Metcalf confronted Harrison in Helena and threatened to run him out of the state Democratic Party if he voted to (in his words) “kill the constitution.” 308 This tale of political pressure has been corroborated in part by Charles S. Johnson, former chief of the Lee Enterprises Helena Capitol Bureau and widely considered the dean of the Helena press corps. Johnson says he was present at the 1997 celebration of the constitution’s 25th anniversary, when former convention president Leo Graybill openly announced in a banquet speech to attendees that he had personally contacted Metcalf and asked the Senator to induce Harrison to change his vote. 309 Researcher Ann Koopman of Bozeman has recovered the official program for the event, and it confirms that Johnson participated and that Graybill was one of two banquet speakers. 310
If tampering did occur, then it further explains why the justices did not draft their opinions with more care. There is not much incentive one to take pride in one’s written product when that product is not really your own.
There is, of course, no chance the Montana Supreme Court will reverse the result in Cashmore. In fact, the court is highly protective of the 1972 constitution. 311 Several reforms can, however, reduce the chances of similar results in the future, both in Montana and in other states.
One such reform would be to adopt rules that prevent state supreme courts from assuming original jurisdiction except in the most dire emergencies. Even in emergencies a case with unresolved factual issues is never appropriate for original jurisdiction without a mechanism for reliable fact-finding. After all, we have lower courts for a reason: They resolve factual issues in hearings specially designed to do so, and they clarify legal issues for higher tribunals. There was no real emergency in the Cashmore case, no reason it should not have been examined first by a trial court, and every reason to believe it should have been.
When appeals courts do exercise original jurisdiction, they should apply the usual standards for late-breaking evidence—that is, exclude it or provide the opposing party with a fair opportunity to respond. This would seem to be a basic requirement of due process.
More fundamentally, legal reformers should examine seriously the effects of incentives on judges and how to address them so as to better preserve judicial impartiality. For example, jurists who live in a capital city are as likely as anyone else to be caught up in the thinking that prevails in that capital city. When justices of a state’s highest court are reviewing the validity of a measure from which they, and the institution they work for, will benefit or suffer, they face a conflict of interest.
This Article does not focus on judicial reform, and I do not, therefore, offer comprehensive solutions. At the least, however, we might abandon the dogma that the state’s highest court must be located in the same place as the governor, legislature, and central bureaucracy. The Montana Supreme Court might be better located in Billings or Great Falls, or perhaps rotate between the two, rather than in the small-town political hot-house that is Helena.
Existing mechanisms for temporarily replacing judges who face conflicts of interest can be more broadly applied. Replacement could come from the ranks of district judges. Alternatively, or in addition, Montana could team with other low population states to form an interstate pool consisting of judges of unusually high quality. Montana could draw from the pool for impartial judges from other states in cases in which state supreme court justices face conflicts and the matter for determination does not require detailed knowledge of Montana law.312 This is not as radical as it sounds: Many other low-population jurisdictions utilize common judges,313 and Montana already teams with other states to provide certain other services.314
More important than any specific suggestion, however, is the lesson that the rule of law is a fragile thing, and easily shattered when those in power find the reasons for shattering it sufficiently appealing.