Proposals to amend Constitution struggle to garner needed support

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The Legislature this week sounded the likely death knell for almost all of the remaining proposals to amend the Montana Constitution this session.

That isn’t to say that the House and Senate didn’t endorse those eight proposals, which ranged from an amendment to end state Supreme Court elections to one enshrining a right to hunt, trap and fish in the Constitution. To the contrary, most of the bills passed out of their original chambers ahead of a key deadline Tuesday. But constitutional referendums must clear a higher vote threshold than most bills: two-thirds of the entire Legislature, as opposed to a simple majority in each chamber. 

And with Democrats uniformly opposed to all but one amendment proposal, the supermajority Republicans were working with slim margins. With 102 Republicans between the House and Senate, the party can afford only two dissenting votes to get its proposed amendments past the 100-vote threshold. 

That all said, bills that receive a majority vote in their chambers of origin will still head to the opposite house for consideration. Legislative rules can’t presuppose an outcome. Any constitutional amendment proposal that the Legislature passes still requires approval by the voters in 2024. 

Tuesday was the deadline for revenue bills, resolutions and constitutional amendment referrals to pass out of their original chambers, accelerating a rush of floor votes.

By the time that lawmakers took their final votes on the measures Tuesday afternoon, Republican defections had likely doomed nearly every one. The only exception was Senate Bill 563, an amendment proposed by Sen. Kenneth Bogner, R-Miles City, that would establish a mental health trust fund in the Constitution if approved by voters. The bill passed out of the Senate, 40-10 — the only amendment proposal to receive Democratic support.

House Bill 915, Billings GOP Rep. Bill Mercer’s attempt to ask the voters whether to relinquish their power to elect Supreme Court justices in favor of gubernatorial appointments, passed the House Friday, 59-39. But with nine Republicans voting no, seven Democrats would have to support the proposal in the Senate for it to go to the voters — an unlikely scenario.

Mercer painted the proposal as a way to keep money and influence out of judicial elections. 

“This system that we have — to actually be a member of the Montana Supreme Court, you need to run a statewide campaign,” he said on the floor Monday. “You need to go raise money. You have to ask people for money. And then, there are a whole bunch of other people out there raising money uncoordinated from you trying to push you over the edge.”

The amendment is a major component of GOP legislation this session that would reshape the judicial branch, an effort born of an ongoing fight between Republican lawmakers and the courts. Democrats criticized the bill as a partisan power grab that would take away the voters’ right to select Supreme Court justices. And unlike the federal system, judges don’t have lifetime appointments in Montana, meaning that they could be subject to the whims of individual governors, they said.

“I struggle to understand why we would consider advancing this proposal that would take power away from the voters and bring that power into this building, to the governor, and to the Senate [which confirms judicial appointments],” Rep. Jonathan Karlen, D-Missoula, said. 

House Bill 965, a proposal from Rep. Jerry Schillinger, R-Circle, limiting the Supreme Court’s authority to make rules regarding “admission to the bar and the conduct of its members” fared even worse. The amendment referral failed to pass the House on a 45-55 vote. 

Corvallis Rep. Wayne Rusk was a vocal Republican critic of the bill. 

“I had some major questions about this proposed amendment in committee, as it again appeared that one branch of government was set to collide with another,” he said.

The remaining constitutional amendment proposals in the House all saw at least two Republican “no” votes. 

• House Bill 517, a proposal to remove powers from the Montana University System and Board of Regents, passed on a 61-37 vote on third reading Tuesday, losing five votes from its initial vote in the House. 
• House Bill 551, to implement “constitutional carry,” passed the House 65-33. 
• House Bill 372, establishing a right to hunt and trap in the Constitution, passed 64-34.

The voting bloc of Republicans opposed to these proposals fluctuated from bill to bill, but generally comprised comparative moderates like Rep. Ross Fitzgerald, R-Fairfield, Rep. Tom Welch, R-Dillon, and others. Only Rusk was a “no” on all five amendment proposals before the House this week. 

Constitutional referendums in the Senate fared little better, save for Bogner’s bipartisan-backed mental health trust fund idea. 

Senate Bill 534, sponsored by Sen. Tom McGillvray, R-Billings, was the top contender among a variety of constitutional amendment proposals this session concerning the redistricting process. It passed the Senate 30-20 with four Republican defectors: Sens. Jason Small of Busby, Walt Sales of Manhattan, Russ Tempel of Chester and Jeff Welborn of Dillon. 

The bill would ask the voters to enshrine additional redistricting criteria in the Constitution, including that the Districting and Apportionment Commission must minimize division of cities and towns. But the meat of the proposal concerned the use of political data in redistricting.

“Communities of interest do not include relationships with political parties, incumbents, and political candidates,” the bill reads. “In establishing districts, the commission may not consider any data pertaining to the political affiliation of electors or prior election results.”

Republicans have long been critical of the state’s independent redistricting commission, even as the party has won a supermajority in the Legislature. The 2020 Districting and Apportionment Commission finished up its work early this year, submitting new state House and Senate maps. Republicans said they would likely lose seats under the plan and took specific issue with spindly districts that blended largely Democratic urban areas with more conservative suburban and rural ones.

Democratic opponents of the bill said that it would only move discussions of partisanship behind closed doors. And they said that splitting cities and other government subdivisions is sometimes necessary to achieve compliance with the Voting Rights Act, which, among other provisions, ensures that minority voters aren’t packed into a district, limiting their ability to elect candidates of their choice. 

Sen. Ryan Lynch, D-Butte, pointed to the town of Browning, which is split between districts in the newly adopted plan. 

“The town was divided, and the reason it was divided was to comply with the Voting Rights Act,” he said. 

Sen. John Fuller, R-Kalispell, took issue with the invocation of the Voting Rights Act. 

“There’s been reference to the Voting Rights Act,” he said. “The Voting Rights Act is not in the Constitution. The Voting Rights Act may some day be overturned by the (U.S.) Supreme Court. Very likely it could be as early as this June.”

Tempel, one of the Republican “no” votes, said he didn’t understand how the Senate could approve redrawing the state’s Public Service Commission districts that split cities and then vote for a bill that would limit the Districting and Apportionment Commission’s ability to do the same. 

“Just about three weeks ago we voted for a PSC map that splits Missoula,” he said on the floor. “I can’t figure out how we can pass this thing and vote for that.” 

The third constitutional amendment before the Senate this week was Hamilton Republican Sen. Theresa Manzella’s Senate Bill 272, a “constitutional sheriff” amendment asserting that the sheriff “is the chief law enforcement officer in [their] county.” That proposal failed to make it out of the Senate outright, dying 22 votes to 28.