MEA-MFT, the Montana State AFL-CIO, the Montana Public Employees Association, the Montana Human Rights Network, the American Federation of State, County and Municipal Employees, Montana Women Vote, and Western Native Voice, Petitioners, v. THE STATE OF MONTANA, HONORABLE TIM FOX, in his capacity as Attorney General, Respondent.
No. OP 13-0808.
Supreme Court of Montana
Decided February 5, 2014.
2014 MT 33 | 374 Mont. 1 | 318 P.3d 702
¶1 Before the Court is an original proceeding filed pursuant to
¶2 The Petition challenges the legal sufficiency of LR-126, a referendum passed by the 63rd Montana Legislature and submitted to the people for a vote pursuant to
¶3 Petitioners challenge the legal sufficiency of the measure on the ground that the title of the bill passed by the Legislature, which will appear on the ballot, is inaccurate and misleading. The bill title provides in full:
AN ACT PROTECTING THE INTEGRITY OF MONTANA ELECTIONS BY ENDING LATE VOTER REGISTRATION ON THE FRIDAY BEFORE ELECTION DAY AND ELIMINATING ELECTION DAY REGISTRATION; ENSURING COMPLIANCE WITH THE NATIONAL VOTER REGISTRATION ACT;
PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA AT THE GENERAL ELECTION TO BE HELD IN NOVEMBER 2014; AMENDING SECTIONS 13-2-301, 13-2-304, 13-19-207, AND 61-5-107, MCA; AND PROVIDING AN EFFECTIVE DATE.
¶4 As required by
The 2013 Legislature submitted this proposal for a vote. LR-126 changes the deadline for late voter registration from the close of polls on election day to 5:00 p.m. on the Friday before the election. LR-126 also moves the deadline for changes to an elector‘s voter registration information from the close of polls on election day to 5:00 p.m. on the Friday before the election.
Petitioners take issue with the bill title‘s reference to the National Voter Registration Act (NVRA), which they argue has nothing to do with election-day voter registration. Petitioners and amici argue that, as written, the ballot violates the constitutional requirement that a bill‘s subject be “clearly expressed” in its title.
¶5 The Attorney General responds that the bill does contain language relating to NVRA compliance that was included to address concerns raised by legislative staff during the drafting process. That language, the Attorney General submits, is accurately summarized in the bill‘s title. The Attorney General argues that Petitioners’ challenge exceeds the scope of his legal sufficiency review of a measure submitted by the Legislature.
¶6 Congress passed the NVRA in 1993 to require states to implement measures to make voter registration easier. Pub. L. No. 103-31, 107 Stat. 77 (1993). Nicknamed the “motor voter” law, the NVRA requires in part that states provide a voter registration form with every driver‘s license application.
¶7 During the bill drafting process for what is now LR-126, a member of the Legislature‘s staff entered the following note on the Bill Draft Checklist Report:
If same day voter registration is repealed, Ntl. Voter Registration Act becomes applicable and each driver‘s license application serves as a concurrent voter registration. MT does provide for driver‘s license registrations (61-5-107) but it is not clear whether the forms prescribed by the Secretary of State are compliant with 42 USC § 1973gg-3 without reviewing the forms themselves.
In response to the note, the bill draft was revised to include express reference to the NVRA,
¶8
Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.
This section is substantively identical to its predecessor, Article V, Section 23 of the 1889 Montana Constitution. This Court has long given “liberal construction” to this provision of the Constitution in granting deference to the Legislature to fix the title of its own acts, “bearing in mind that the legislature is a co-ordinate [sic] branch of the government, and that its action, if fair, should be sustained ....” State v. McKinney, 29 Mont. 375, 381, 74 P. 1095, 1096 (1904). The Court recognized in McKinney that “[t]he title is generally sufficient if the body of the Act treats only, directly or indirectly, of the subjects mentioned in the title, and of other subjects germane thereto, or of matters in furtherance of or necessary to accomplish the general objects of the Bill, as mentioned in the title.” McKinney, 29 Mont. at 381-82, 74 P. at 1096. We have followed the same reasoning in considering challenges to ballot measure titles. See State ex rel. Wenzel v. Murray, 178 Mont. 441, 585 P.2d 663 (1978); Harper v. Greeley, 234 Mont. 259, 763 P.2d 650 (1988). The Court “‘has no right to hold a title void because, in its opinion, a better one might have been used.‘” Harper, 234 Mont. at 266, 763 P.2d at 655 (quoting McKinney, 29 Mont. at 381, 74 P. at 1096).
¶9 Petitioners and amici emphasize that Montana‘s compliance with the motor-voter requirements of the NVRA is not in question and that elimination of same-day registration is not required by federal law, nor will it affect Montana‘s motor-voter compliance. Accordingly, they argue that the amendments in the bill were unnecessary and the title will mislead voters to think that the measure must be approved in order to meet federal mandates. They note our observation in Harper, again quoting McKinney, that one of the five guiding principles in a court‘s review of a bill title is to “‘guard against fraud in legislation, and against false and deceptive titles.‘” Harper, 234 Mont. at 266, 763 P.2d at 655.
¶10 As in Harper, even though the language of the title “may not be the best conceivable statement,” we are reluctant to take the extraordinary step of nullifying its placement on the ballot. Harper, 234 Mont. at 269, 763 P.2d at 657. The Legislature has discretion in determining what matters are “in furtherance of or necessary to accomplish the general objects of [a] Bill.” McKinney, 29 Mont. at 382, 74 P. at 1096. Even if the referendum‘s explicit reference to NVRA compliance was unnecessary, it is a basic maxim of jurisprudence that “[s]uperfluity does not vitiate.”
¶11 We agree with the Attorney General that his legal sufficiency review does not authorize him to withhold a legislative
¶12 IT IS THEREFORE ORDERED that the Petitioners’ request to declare LR-126 legally deficient and void and to order its removal from the ballot is DENIED.
¶13 IT IS FURTHER ORDERED that, pursuant to
¶14 The Clerk is directed to provide notice of this Order to all counsel of record and the Montana Secretary of State.
DATED this 5th day of February, 2014.
/S/ CHIEF JUSTICE MCGRATH
/S/ JUSTICE BAKER
/S/ JUSTICE COTTER
/S/ JUSTICE McKINNON
/S/ JUSTICE RICE
JUSTICE WHEAT, dissenting.
¶15 I would grant Petitioners’ request to strike LR-126 from the ballot. It is undeniable that same day voter registration has absolutely
¶16 It now will go back to the Attorney General to revise the ballot statement “to clarify that the NVRA does not require elimination of election-day voter registration.” I am skeptical that the defect can be cured, but anxious to see how the Attorney General works his magic. Of course, Petitioners will have to review the revised ballot statement to determine whether they believe the defect has been cured.
/S/ MICHAEL E WHEAT