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What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

As mentioned in the first installment of this series, litigation has erupted in Colorado over whether a state may dictate the vote of a presidential elector and remove that elector if he opts to vote otherwise. Similarly, a Washington State lawsuit tests a state law that, while recognizing the validity of a vote contrary to an earlier pledge, imposes a $1000 fine on an elector who casts such a vote.

In 1952 the Supreme Court upheld an Alabama law requiring a person seeking office as an elector to pledge to support the nominee of his party.

Laws limiting the discretion of electors are justified as part of the state’s power to “appoint” electors. This justification is not airtight, however, because the appointment of an officer and directing his or her vote are not quite the same thing. For example, the people have power to appoint (elect) members of Congress and other officials. The people are right to expect successful candidates to honor their promises within practical limits. But the people have no constitutional power to direct congressional votes.

Consider also the rules under which Congress, state legislatures, and conventions exercise their constitutional powers in the amendment process. States have repeatedly passed laws attempting to control the actions of those assemblies, but the courts have repeatedly struck them down. The courts’ holdings are consistent with the founders’ understanding of how legislatures and conventions worked: Lawmakers could follow their consciences and convention delegates enjoyed significant discretion within the scope of the convention call. Indeed, if some delegates who had run for their state ratifying conventions as antifederalists had not voted for the Constitution once compromise had been reached, the Constitution would not have been ratified.

As explained below, the evidence suggests that the scope of a presidential elector’s constitutional discretion is even greater than that of a convention delegate.

Before proceeding further, however, let’s dispose of one issue. Some see significance in the fact that the original Constitution was ratified before the rise of national party voting, while the 12th amendment was approved in 1804 after parties became the norm. They suggest, therefore, that the meaning and expectations for elector voting under the 12th amendment might be different from those under the original Constitution.

It is, of course, true that the 12th amendment changed some aspects of the electoral system. But the language relevant to elector discretion charged hardly at all.

The original Constitution provided:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

The 12th amendment did not alter the wording of the first part of this selection, and its replacement for the second part was almost identical to the original: “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.”

This near-identity cuts against the idea that there was less elector discretion under the 12th amendment than under the original Constitution. Standard rules of legal interpretation hold that when language does not change, meaning does not change. Party pressures might discipline electors more after 1804 than before, but electors had no more legal obligation to be disciplined after 1804 than before.

It follows that when construing the present constitutional language, we are fully justified in relying on the usual sources employed in construing the original Constitution.

One source of that kind is how contemporaries normally understood words and phrases used in the text.

In both the original and 12th amendment versions, the electors were to vote by ballot. To the founding generation, this invariably meant secret ballot. The whole point of a secret ballot is to hide the elector’s choice so to ensure that choice is free. But free choice is inconsistent with the state telling an elector how to vote.

Another important word in the text is elector. Eighteenth century general dictionaries define an elector as a person who does the choosing. Nathan Bailey’s 1765 dictionary defined an elector as “a chuser.” The first entry for “elector” in the 1785 edition of Samuel Johnson’s dictionary was “He that has a vote in the choice of any officer.” Other dictionaries featured kinred definitions.

Eighteenth century legal dictionaries did not define “elector,” but they did describe “election”—and with even clearer implications. The most popular law dictionary in America, that of Giles Jacob, said of “Election” that it “Is when a man is left to his own free will to take or do one thing or another, which he pleases.” Wording very similar to this appears in other law dictionaries.

Another important source of original meaning are practices of which the founding generation was aware. One was the election of members of Parliament in Scotland. Members were not directly elected, as in England. Rather, they were elected by “commissioners” selected for that purpose by voters or local governments.

A Scottish commissioner could be required to take an oath prescribed by parliamentary statute. By that oath he swore he had not received anything of value—apparently including his position as elector (“Office, Place, Employment”)—in exchange for his vote. In other words, a Scottish elector’s choice was not to be directed by the place that sent him.

Under the 1776 Maryland constitution, the state senate was selected by electors chosen by the voters. Electors were required to swear that they would “elect without favor, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.” Again, public expectation was that electors’ discretion would be unfettered.

The two leading precedents in the English speaking world both reinforced dictionary definitions: Electors were to think for themselves.

Now let’s turn to the Constitutional Convention. A key reason for adopting the Electoral College was to ensure the president’s independence from Congress and the states. Thus, James Wilson, who initially favored direct election of the president, shortly thereafter proposed an electoral college instead. According to Madison’s notes, Wilson “wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States.”

Obviously, permitting the states to dictate electors’ votes would undercut that policy of independence from the states. This is one reason the convention repeatedly rejected proposals for state officials to choose the president. As Edmund Randolph observed, “A Natl. Executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights agst. State encroachments.”

Next time: The evidence on elector discretion from the debates over the Constitution’s ratification.

Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

The first article in this series surveyed the problems the framers encountered in crafting a mode for choosing the president and how they addressed those problems. This installment explains in detail the Constitution’s compressed and technical language as it was understood after adoption of the Twelfth Amendment in 1804. Variations between the original understanding and modern practice are noted in this article.

The Constitution initially provided that after the choice of the president the person with the most electoral votes would become vice president. This might be the second-highest electoral vote-getter, but not necessarily: If the election was thrown into the House of Representatives because no candidate had won a majority of the electoral votes, the House could elect any of the five top vote getters. If the House did not elect the top vote getter, then that person would become vice president.

There was some sense behind this system. Many founders were concerned about the risk of a “cabal”—informally organized political intrigue—between the president and the powerful, relatively small Senate. Installing the president’s leading rival as vice president, and therefore as the Senate’s presiding officer, might check that risk.

Nevertheless, chaos during the 1800 election persuaded the founding generation to add the Twelfth Amendment, providing that electors would vote separately for president and vice president. The Constitution’s resulting structure is as follows:

* Article II, Section 1, Clause 1: term of office.
* Article II, Section 1, Clause 2: appointment, number, and qualification of electors.
* The Twelfth Amendment: manner of holding election. (This phrase is explained below.)
* Article II, Section 1, Clause 4: time of election.
* Article II, Section 1, Clause 5 & Twelfth Amendment: qualifications of president and vice president.

Rather than treat each of these in order, it is easier to follow the structure of election rules as the founding generation thought about them.

During the founding era, election rules were said to fix the manner of election (sometimes called the “mode of election”). This term embraced the following five categories:

(1) The time of election, including (a) the term of office and (b) the time for voting.
(2) The qualifications of the voters.
(3) The qualifications of the candidates.
(4) The place of election, including (a) the boundaries of election districts and (b) the location of the polls.
(5) The manner of holding elections. The framers coined this phrase to cover all the administrative details in the “manner of election” other than time, qualifications, and place. It included the required margin of victory (majority or plurality), how votes were cast, oaths, vote counting and reporting, and election-day conduct. “Manner of holding” also embraced the number of election stages—one stage for direct elections, and two or more for indirect elections.

The “manner of holding elections” did not include the kind of omnibus campaign regulation Congress presumes to impose today. Campaign regulation was a state power. The modern Supreme Court says that “manner of holding” includes campaign regulations, but the court has never adequately supported this assertion.

In both Britain and America, the manner of election was governed by statute under the general police power. However, the Constitution did not leave the entire manner of election to either the state legislatures or to Congress. The Constitution created a two-or-three stage presidential election system and then prescribed at least some rules for each stage.

Time of election. Article II, Section 1, Clause 1 specifies that the terms of the president and vice president are four years. (This was supplemented by the Twentieth Amendment, which fixed days of beginning and ending.) Otherwise, the timing of elections is left to state law, except that Congress may fix a uniform day for choice of electors (Stage #1) and for their balloting (Stage #2).

Qualifications of Voters. For Stage #1, the Constitution allows the states to set voter qualifications, although this rule has been modified by several constitutional amendments and a host of Supreme Court rulings. The agency for decision on this and other issues is the state legislature.  Founding-era practice (as well as subsequent court decision) tells us that this use of “legislature” refers to the state entire lawmaking apparatus, including any roles for the governor or popular referenda. Thus, the use of “legislature” in the case of elections is different from the use of that word in some other parts of the Constitution, such as Article V, where it means only the representative assembly itself.

The Constitution also left to the state legislatures the qualifications for presidential electors, except that they cannot be members of Congress or federal officeholders. Stage 3 is the congressional run-off, so the voter qualification at this stage is to be a member of the House (to vote for president) or the Senate (to vote for vice president).

Qualifications of Candidates. The president and vice president must be natural born citizens, residents of the U.S. for the prior 14 years, and at least 35 years old. Unlike lawmakers in most states, the framers specified no qualifications based on property, race, or gender. This was a conscious decision.

The place of election. With one exception, the place of election at Stages 1 and 2, was left to the state legislatures. (After the Constitution was ratified, the states adopted a mixture of at-large and district voting.) The exception was that presidential electors were to meet in their respective states rather than congregate together. That was to minimize the risk of mob or “stampeding” behavior. Stage 3 congressional runoffs are held in the national capital.

The manner of holding elections. State legislatures generally determine Stage 1 procedures. They may reserve the power to choose electors or delegate it to the people. They decide whether the rule of decision is a majority or a plurality. One writer has suggested that the founders expected the states to adopt a majority rule, but I have not found much evidence to support this.

Similarly, the states determine the method of voting. During the founding era, there were four in common use: (1) viva voce, (2) show of hands, (3) polling (in which voters filed past a registrar, verified their identity, and stated their preference), and (4) “ballot”—which invariably meant secret ballot.

Most Stage 2 procedures also are set by state law, but the Constitution limits state discretion more than at Stage 1. The electors’ voting must be by ballot. Each elector votes once for president and once for vice president; of those two candidates at least one must from another state. The latter rule was adopted for two reasons: (1) to prevent large states from dominating the electors and (2) the theory that the second choice after a “favorite son” was likely to be the better candidate.

The electors are supposed to count the ballots, list how many votes for each candidate, sign and certify the lists, and transmit them to the president of the Senate at the national capital. At a joint session of Congress, the president of the Senate opens the certificates and arranges for a count. The rule of victory at this level is a majority of electors appointed. If no candidate receives a majority, a congressional run-off is necessary.

The Constitution prescribes Stage 3 run-off procedures in even greater detail. If it appears that no candidate for president commands a majority of electoral votes, the House of Representatives must “choose immediately, by ballot, the President” from among the top three vote getters. (The Twelfth Amendment changed the number from five to three.) The quorum is at least one Representative present from each of two thirds of the states. Voting is by state delegations, on a one state/one vote basis. Election is by a majority of all states, not merely a  majority of states present.

If no candidate wins a majority of the electors for vice president, the Senate selects from the top two candidates, with a quorum of two thirds and the rule of victory being a majority of “the whole number of Senators.”

Each part of this intricate system was adopted for good reasons. For example, voting by states in the House prevents a few populous states from dominating the election. The quorum of two thirds and the majority-to-win requirement assures that the victor enjoys wide popular support.

Next time: The electoral college in constitutional context.

Why Did the Framers Create the Electoral College?—1st in a Series

Why Did the Framers Create the Electoral College?—1st in a Series

Colorado went Democrat in the last presidential election. But three of those elected as presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this “Hamilton elector” voted, state officials voided his ballot and removed him from office. The other electors chose someone more compliant to replace him.

Litigation over the issue still continues, and is likely to reach the U.S. Supreme Court. Moreover, President Trump’s victory in the Electoral College, despite losing the popular vote, remains controversial. So it seems like a good time to explore what the Electoral College is, the reasons for it, and the Constitution’s rules governing it. This is the first of a series of posts on the subject.

The delegates to the 1787 constitutional convention found the question of how to choose the federal executive one of the most perplexing they faced. People who want to abolish the Electoral College usually are unfamiliar with how perplexing the issue was—and still is.

Here are some of the factors the framers had to consider:

* Most people never meet any candidates for president. They have very little knowledge of the candidates’ personal qualities. The framers recognized this especially would be a problem for voters considering candidates from other states. In a sense, this is less of a concern today because, unlike in 1787, we have mass media through which candidates can speak directly the voters. In other ways, however, it is more of a concern than it was in 1787. Our greater population renders it even less likely for any particular voter to be personally familiar with any of the candidates. And, as I can testify from personal experience, mass media presentations of a candidate may be 180 degrees opposite from the truth. One example: media portrayal of President Ford as a physically-clumsy oaf. In fact, Ford had been an all star athlete who remained physically active and graceful well into old age.

* Voters in large states might dominate the process by voting only for candidate from their own states.

* Generally speaking, the members of Congress would be in a much better position to assess potential candidates than the average voter. And early proposals at the convention provided that Congress would elect the president. However, it is important for the executive to remain independent of Congress—otherwise our system would evolve into something like a parliamentary one rather than a government of three equal branches. More on this below.

* Direct election would ensure presidential independence of Congress—but then you have the knowledge problem itemized above. In addition, there were (and are) all sorts of other difficulties associated with direct election. They include (1) the potential of a few urban states dictating the results, (2) greatly increased incentives to electoral corruption (because bogus or “lost” votes can swing the entire election, not just a single state), (3) the possibility of extended recounts delaying inauguration for months, and (4) various other problems, such as the tendency of such a system to punish states that responsibly enforce voter qualifications (because of their reduced voter totals) while benefiting states that drive unqualified people to the polls.

* To ensure independence from Congress, advocates of congressional election suggested choosing the president for only a single term of six or seven years. Yet this is only a partial solution. Someone elected by Congress may well feel beholden to Congress. And as some Founders pointed out, a president ineligible for re-election still might cater to Congress simply because he hopes to re-enter that assembly once he leaves leaves office. Moreover, being eligible for re-election can be a good thing because it can be an incentive to do a diligent job. Finally, if a president turns out to be ineffective it’s best to get rid of him sooner than six or seven years.

* Elbridge Gerry of Massachusetts suggested election by the state governors. Others suggested election by state legislatures. However, these proposals could make the president beholden to state officials.

* The framers also considered election of the president by electors elected by the people on a strict population basis. Unless the Electoral College were very large, however, this would require electoral districts that combined states and/or cut across state lines. In that event, state law could not effectively regulate the process. Regulation would fall to Congress, thereby empowering Congress to manipulate presidential elections.

* In addition to the foregoing, the framers had to weigh whether a candidate should need a majority of the votes to win or only a plurality. If a majority, then you have to answer the question, “What happens if no candidate wins a majority?”On the other hand, requiring only a plurality might result in election of an overwhelmingly unpopular candidate—one who could never unite the country. The prospect of winning by plurality would encourage extreme candidates to run with enthusiastic, but relatively narrow, bases of support. (Think of the possibility of a candidate winning the presidency with 23% of the vote, as has happened in the Philippines.)

The delegates wrestled with issues such as these over a period of months. Finally, the convention handed the question to a committee of eleven delegates—one delegate from each state then participating in the convention. It was chaired by David Brearly, then serving as Chief Justice of the New Jersey Supreme Court. The committee consisted of some of the most brilliant men from a brilliant convention. James Madison of Virginia was on the committee, as was John Dickinson of Delaware, Gouverneur Morris of Pennsylvania, and Roger Sherman of Connecticut, to name only four of the best known.

Justice Brearly’s “committee of eleven” (also called the “committee on postponed matters”) worked out the basics: The president would be chosen by electors appointed from each state by a method determined by the state legislature. It would take a majority to win. If no one received a majority, the Senate (later changed to the House) would resolve the election.

Next time: Rules governing the Electoral College.

New “CI-116” Ruling Shows the Montana Supreme Court Likely Remains the Most “Activist” in the U.S.

New “CI-116” Ruling Shows the Montana Supreme Court Likely Remains the Most “Activist” in the U.S.

Note: This is a two part version similar to the single-part essay immediately below. At the request of the Missoulian newspaper, which published it, I expanded it into two parts. This version explains more, so it is probably more useful to non-lawyers.

Part I.

The Montana Supreme Court has a history of striking down constitutional initiatives that restrain government power. Voiding CI-116 (“Marsy’s Law”) is only the latest example. The court treated CI-116 the same way it treated CI-23, CI-27, CI-30, and CI-75.

In a 2012 Montana Policy Institute report I documented the court’s treatment of ballot measures over three decades. Every measure expanding government power survived the Montana Supreme Court. Almost every measure restraining government died there.

Such a pattern does not arise by accident. It arises from a system inherently biased and in need of reform.

In the usual court case, the plaintiffs cannot maintain their suit—much less win—unless they show they have “standing.” This means they must demonstrate the defendants have injured them, or imminently threaten to injure them, in some concrete way. But in the case of CI-116 and its predecessors, the Montana Supreme Court dispensed with the standing requirement. The plaintiffs claimed, but never actually proved, that they would be harmed by the initiative they opposed.

In the usual case, the plaintiffs begin at the trial level, in the district court. If they lose, they may appeal. But when CI-116 and its predecessors were challenged, the justices allowed the challengers to cut to the front of the line. In other words, the Supreme Court took the case at once. There was no trial court hearing. There was no testimony. There was no opportunity to cross-examine. There were no formal findings of fact.

In the CI-116 case Justices Jim Rice and Beth Baker dissented. As well they should have: The court’s procedure in these cases is unlike any other this side of the Third World.

In view of this history of systemic bias, it is difficult to take seriously the court’s stated reasons for its decision. Let us look at some of them nevertheless. This Part I examines two, and Part II examines some others.

First, the court ruled that the Montana constitution’s “separate-vote” provision allows judges to review an amendment’s content. The separate-vote provision states that separate amendments should be tabbed on the ballot so people can vote on them separately.

As it has previously, the court misconstrued the meaning and purpose of the separate-vote provision. Its background shows it to be a direction to the secretary of state not to combine different initiatives on the ballot: The people must be allowed to vote “yes” or “no” on each. The separate-vote provision was not intended as a vehicle for judges to second-guess the content of individual initiatives.

Once the court asserted its power to second-guess how CI-116 was drafted, it proceeded to rip the measure asunder. As in the past, the justices asserted that a single amendment with more than one “part” could be deemed more than one amendment, each requiring a separate vote to be valid.

Of course, no one but a few activist courts defines “amendment” that way. For example, the First Amendment to the U.S. Constitution has always been known as a single amendment although it consists of several distinct parts protecting six specific constitutional rights. The Fifth Amendment contains five distinct parts. The Fourteenth Amendment contains five sections and at least nine discrete provisions sprawling over a range of subjects.

Yet we consider the First, Fifth, and Fourteenth Amendments to be individual amendments because in ordinary usage an “amendment” is any measure the ratifiers choose to adopt as such. How many parts it has is up to the ratifiers. It is no business of the judges.

Next time: Part II examines the court’s other stated reasons and recommends a course of action.

* * *

 

Part II

To justify second-guessing how CI-116 was drafted, the Montana Supreme Court relied on a false premise. The premise was that deliberation over a voter initiative is inferior to deliberation in the legislature. This premise shows unfamiliarity with how the initiative and legislative processes actually work.

Legislative consideration is often hurried. Logrolling is very common. Lawmakers frequently settle for unsatisfactory language in hope of a later cure.

By contrast, a voter initiative is drafted over an extended period of time. There usually is no logrolling. By law, each draft is reviewed by expert state attorneys. They make recommendations, which frequently lead to further revision. Then a lengthy petition process provides weeks or months for public discussion. An official pamphlet makes the text and pro- and con- arguments available to every voter. And the election campaign provides extended time for still more discussion.

In other words, deliberation in the initiative process, while somewhat different from that in the legislature, is usually superior to legislative deliberation. This argues for less judicial monitoring of initiatives than of bills—not more.

As “precedent” for its holding, the Montana Supreme Court adopted a constitutional rule from Oregon. It did so even though Oregon’s constitutional language differs from Montana’s. The rule is that an amendment may not make two or more “substantive changes” unless the changes are “closely related.”

The justices failed to define “closely related.” Nor did they take testimony as to which provisions were closely related. This may explain some oddities in their decision. For example, they held that “an accused’s right to bail is not closely related to victims’ rights.” I daresay most people would disagree: A victim has a right to be protected from a second assault by one inadvisably released on bail.

Stunningly, the majority did not even count the number of CI-116’s “substantive changes” correctly. As the dissent observed, the majority repeatedly double-counted single changes by counting language as one change and effect as another.

The upshot of all of this is that the court has adopted a standard that renders it almost impossible for Montanans to amend their own constitution—at least to restrain the power of government.

Under that standard, don’t think even stark simplicity could save an amendment. Suppose an initiative states only, “The freedom of the press shall not be abridged.” Under the court’s rule, the new language counts as one change. Its effect on the legislature’s power is a second change. Its effect on the executive power is a third change. Its effect on the Montana University System a fourth change, and so on. The press is not “closely related” to the legislature, the executive, or the university system. Hence, the amendment is void.

When the court struck down the CI-75 “vote on taxes” amendment in 1999, I pointed out publicly that the court was threatening the constitutional initiative process. Apologists for the court harshly criticized me for saying so. But intervening events fully vindicate what I said then. Montanans MUST reform the state supreme court before they lose whatever democracy they have left.

Finally: The messenger of uncomfortable facts is often attacked with false charges. Hence the following disclosures: (1) I was not paid to write this article. (2) I have never voted for or otherwise supported a Marsy’s law. (3) In the only Montana Supreme Court case in which I was a party, our side won. (4) I was the unpaid drafting committee chairman for CI-75, but not a party or attorney in the ensuing case.

 

The Montana Supreme Court’s Demonstrable Bias Against “Conservative” Voter Initiatives

The Montana Supreme Court’s Demonstrable Bias Against “Conservative” Voter Initiatives

This article first appeared in the Great Falls Tribune.

The Montana Supreme Court has a history of striking down constitutional initiatives that restrain government power. Voiding CI-116 (“Marsy’s Law”) is only the latest example. The court treated CI-116 the same way it treated CI-23, CI-27, CI-30, and CI-75.

A 2012 Montana Policy Institute report documented the tribunal’s handling of ballot measures over three decades. Every measure expanding government power survived the Montana Supreme Court. Almost every measure restraining government died in the Montana Supreme Court.

A pattern like this is does not arise by accident. It arises from a system inherently biased and in need of reform.

Plaintiffs generally cannot maintain a lawsuit—much less get a decision—unless they show concrete injury. But in the case of CI-116 and its predecessors, the court demanded no proof of injury. It even let the challengers jump to the head of the line instead of proceeding through the normal trial and appeals process. There was no trial court hearing, no testimony, and no findings of fact.

 Such conduct is unlike that of any other judicial panel this side of the Third World. To their credit, Justices Rice and Baker dissented.

In view of this history, it is difficult to take seriously the court’s stated reasons for its decision. But let’s examine them:

First: The justices ruled that the state constitution’s “separate-vote” provision allows them to review an amendment’s content. They misconstrued the provision’s meaning. Its background shows it is a direction to the secretary of state on how to designate voter initiatives and legislative referrals. It has nothing to do with an amendment’s content.

Second: The court decided that separate provisions can render an amendment several amendments rather than one. By that logic, the First Amendment to the U.S. Constitution would be six amendments because it guards six different rights. The Fifth Amendment would be five, and the Fourteenth at least seven.

Of course, the First Amendment is really not six, nor the Fifth Amendment five, nor the Fourteenth seven. In common American usage an “amendment” is any measure the ratifiers adopt as an amendment. How many parts it has is the concern of the ratifiers—not of the judges.
Third: The majority defended strict content review because it assumed deliberation in the initiative process is inferior to deliberation in the legislative process. This assumption is wrong.
Consideration in the legislature is often hurried, logrolling is common, and lawmakers frequently settle for unsatisfactory language in hope of a later cure. By contrast, an initiative is drafted slowly, usually without logrolling. By law, each draft is reviewed by expert state attorneys, often leading to further revision. A lengthy petition process and an election campaign offer months for public discussion. An official pamphlet makes the text and pro- and con- arguments available to every voter.

The deliberation factor argues for less judicial monitoring of initiatives than of bills—not more.

Fourth: The court adopted an Oregon rule even though Oregon’s constitutional language differs from Montana’s. An amendment, the court said, may not make two or more “substantive changes” unless the changes are “closely related.”

The justices were neither able to define “closely related” nor did they take testimony as to which provisions were closely related. This may explain why they ruled that “an accused’s right to bail is not closely related to victims’ rights.” I daresay most people would disagree. A victim has a right to be protected from a second assault by one inadvisably released on bail.

Stunningly, the majority did not even count the number of CI-116’s “substantive changes” correctly. As the dissent observed, the majority repeatedly double-counted single changes by counting language as one change and effect as another.

Under this holding, it is almost impossible for Montanans to amend their own constitution.

Don’t think that even stark simplicity save an amendment. Suppose an initiative states only, “The freedom of the press shall not be abridged.” Under the court’s rule, the new language counts as one change. Its effect on the legislature’s power is a second change. Its effect on the executive power is a third change. Its effect on the Montana University System a fourth change, and so on. The press is not “closely related” to the legislature, the executive, or the university system. Hence, the amendment is void (particularly because it restrains government).

When the court struck down the CI-75 “vote on taxes” amendment in 1999, I pointed out publicly that the court was threatening the constitutional initiative process. Many people criticized me for saying so. But intervening events fully vindicate my position. Montanans MUST reform the state supreme court before they lose whatever democracy they have left.

Finally: The messenger of uncomfortable facts is often attacked with false charges—hence the following disclosures: (1) I was not paid to write this article. (2) I have never voted for or otherwise supported a Marsy’s law. (3) In the only Montana Supreme Court case in which I was a party, our side won. (4) I was the unpaid drafting committee chairman for CI-75, but not a party or attorney in the ensuring case.