Al Smith Commentary: “LR 119–Rules and Numbers”

This past legislative session we had a relatively large number of bills that were legislative referendum to be sent to the voters instead of straight up legislative bills or constitutional initiatives passed by the legislature. There are a couple of reasons for that – first, referendum bills were not subject to the Governor’s veto iron, and second, they require only a majority vote to pass the legislature rather than the two thirds vote required for a proposed change to the Montana Constitution.

One of those is scheduled for a vote in the June primary, rather than the November general election. LR 119 seeks to change how we vote for justices to the Montana Supreme Court. Now, you have the right to vote for all 7 Supreme Court Justices as their 8 year terms come up for election – you can vote in EVERY Justice election as 1 to 2 seats come up for election every two years. LR 119 divides Montana into 7 districts, and restricts you to voting for the Supreme Court Justice seeking election in your district – instead of voting in all 7 justice elections, you vote for only one justice every 8 years.

Whether LR 119 should even be on the ballot is being challenged in court by Montana voters and taxpayers. The Montana Constitution has only one residency requirement for Supreme Court justice candidates – that they reside in the state of Montana. LR 119 requires by statute that justice candidates reside in the district that they will be elected from. The lawsuit argues that this restriction on the constitutional residency requirement in fact amends the constitution without following the rules for amending the Constitution, and it should therefore not be placed on the primary ballot. Whether LR 119 followed the rules and goes on the ballot, at additional cost to taxpayers for a special primary voter information pamphlet, will soon be determined by the courts. The decision will not decide if LR 119 is a good or bad idea, rather it will determine whether the appropriate rules were followed.

What about that question – is LR 119 a good or bad idea? Let’s look at what the proponents argue are reasons for this change.

Proponents argue that the Montana Supreme Court hasn’t reflected the geographical diversity of the state because to many justices come from within 90 miles of Helena. That fixes a problem which doesn’t exist. The Supreme Court has historically been geographically diverse. In the last thirty years, justices came to the Court from Billings, Bozeman, Butte, Chester, Cut Bank, Glendive, Great Falls, Havre, Helena, Kalsipell, Missoula, Polson, and Whitefish.

The Supreme Court is not a legislature. A legislature is designed to be a representative body, and to reflect the varied local interests of the voters. The Court, however, is not designed to represent varied local interests. The Supreme Court is responsible only to upholding the Constitution and laws of Montana. A Constitution and law that are the same across the state.

Proponents also argue that district elections would mean your vote would be worth seven times more with districts, because you have more influence electing “your justice.” Well let’s look at some numbers.

Nearly 90% of cases are heard and decided by a rotating 5 justice panel. Under LR 119, “your justice” would end up not participating in 25% of the cases. For that, you lose the right to vote for 100% of the justices.

What is taken away by LR 119? Well, the seven districts have about 90,000 voters each. There are usually two justices up for election every two years. In those years, voters in five districts would have no vote – that’s 450,000 voters denied the right to vote for a supreme court justice every two years. In 2018, only district 4 would vote for a justice – depriving 540,000 Montana voters of their right to vote.

Proponents argue that special interests like trial lawyers dominate the state wide elections for Supreme Court elections, and that LR 119 would negate such special interest influence. Well, even if that assertion were true, creating seven districts doesn’t fix that. If anything, district elections would arguably encourage more influence by special interests – they could spend seven times as much money per voter. It is a heck of a lot more effective for a special interest that spends millions on state judicial elections, like the U.S. Chamber of Commerce, to come into Montana and target their money on one or two media markets in a district, rather than having to put money in the seven or more media markets required in a statewide election.

By the numbers, LR 119 makes no sense: every two years 450,000 voters deprived of their right to vote for a justice; voting for one justice every eight years rather than voting for one or two justices every two years; and, giving special interests seven times the power to influence supreme court elections.

Taking away our right to vote just doesn’t add up.

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