                                                                                        February 5 2014



                                        OP 13-0808

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2014 MT 33
                                   _________________

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,
                                                                  OPINION
            Petitioners,                                            AND
                                                                   ORDER
      v.

THE STATE OF MONTANA, HONORABLE
TIM FOX, in his capacity as Attorney General,

            Respondent.
                                   _________________

¶1     Before the Court is an original proceeding filed pursuant to § 13-27-316(2), MCA.

Following the Attorney General’s response to the Petition, the Court ordered

supplemental briefing by the parties and granted leave for the filing of additional briefs

by amici curiae AARP, Montana League of Women Voters, Montana Conservation

Voters, and the American Civil Liberties Union.

¶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 Article

III, Section 5 of the Montana Constitution. The purpose of the measure is to eliminate

election-day voter registration and require all electors to register or to change their voter
registration information by 5:00 p.m. on the last Friday immediately preceding election

day. The Legislature directed that the measure be placed on the ballot at the general

election to be held in November 2014. If approved, the measure would take effect

immediately. The Montana Secretary of State submitted the referendum to the Attorney

General pursuant to § 13-27-209, MCA, for review and preparation of ballot statements

in accordance with §§ 13-27-312 and -315, MCA.

¶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 § 13-27-315, MCA, the Attorney General prepared a statement of

purpose and implication for the legislative referendum, which also will appear on the

ballot together with the “yes” or “no” statements on which the elector will cast his or her

vote. The Attorney General’s statement reads as follows:

       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.

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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. Mont. Const., Art. V,

§ 11(3). Further, they contend that the title will mislead voters by suggesting that ending

same-day voter registration is required by the NVRA and federal law, which is false.

Petitioners argue that the Attorney General’s ballot statement “only furthers this

confusion by making no reference to, or providing any explanation of, the NVRA

language.” They ask that LR-126 be stricken from the ballot because the Court has no

power to reform or amend the title and the measure suffers from a constitutional infirmity

in form.

¶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. 42 U.S.C. § 1973gg-3. States that already had

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election-day voting registration in 1993 were exempt from the Act. 42 U.S.C. § 1973gg-

2(b). Montana did not adopt election-day voter registration until 2005. 2005 Mont. Laws

ch. 286 (codified in § 13-2-304, MCA). As such, Montana was and still is subject to the

NVRA and its provisions for federal enforcement and oversight. Montana complies with

the NVRA by requiring a voter registration form, prescribed by the Secretary of State, to

be attached to each driver’s license application and forwarded by the Department of

Justice to the election administrator if the applicant wishes to register to vote. Section

61-5-107(1), MCA.

¶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, 42 U.S.C. § 1973gg, et seq., in § 61-5-107(1), MCA. That insertion was made to

clarify that the form prescribed by the Secretary of State be compliant with federal law.

The title’s reference to the NVRA was added as well. Raising concerns about voter

confusion, the Secretary of State’s office contacted the bill’s sponsor to clarify Montana’s

existing compliance with NVRA and suggested removing the NVRA language from the

bill title. Some legislators proposed amendments to strike the title language, but the

amendments were defeated and the bill passed as proposed.
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¶8     Article V, Section 11(3), of the Montana Constitution provides:

              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
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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.” Section 1-3-228, MCA.

Applied, as we must, “to maintain the maximum power in the people” in the exercise of

the initiative and referendum power, Chouteau County v. Grossman, 172 Mont. 373, 378,

563 P.2d 1125, 1128 (1977), overruled on other grounds, Town of Whitehall v. Preece,

1998 MT 53, ¶ 27, 288 Mont. 55, 956 P.2d 743, these principles counsel in favor of

allowing the measure to proceed to a vote.

¶11    We agree with the Attorney General that his legal sufficiency review does not

authorize him to withhold a legislative referendum from the ballot for an alleged

substantive constitutional infirmity. Montanans Opposed to I-166 v. State of Montana,

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2012 MT 168, ¶ 6, 365 Mont. 520, 285 P.3d 435. We agree with Petitioners, however,

that—standing alone—the title’s reference to NVRA compliance alongside the

elimination of election-day voter registration may lead to confusion in the voting booth.

It is clear that the NVRA does not affect a state’s right to decide for itself whether or not

to allow election-day voter registration. As we noted in Harper, the ballot language must

“identify the measure on the ballot so that a Montana voter, drawing on both official and

unofficial sources of information and education, will [be able to] exercise his or her

political judgment.” Harper, 234 Mont. at 269, 763 P.2d at 657. As Petitioners observe,

the Attorney General’s statement of purpose and implication, which is well short of the

135-word maximum allowed by § 13-27-312(2)(a), MCA, says nothing about the NVRA

language in the referendum. The Court is authorized in a proceeding of this nature to

direct the Attorney General to revise the ballot statement. Section 13-27-316(3)(c)(ii),

MCA. In order to dispel confusion, the Court determines it appropriate to order revision

of the statement of purpose to clarify that the NVRA does not require elimination of

election-day voter registration. The Court will leave the drafting of the revised statement

to the Attorney General.

¶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 § 13-27-316(3)(c)(ii), MCA, the

Attorney General shall revise the statement of purpose and implication for the



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referendum in accordance with this Opinion and Order to clarify the bill title’s reference

to the National Voter Registration Act.

¶14    The Clerk is directed to provide notice of this Order to all counsel of record and

the Montana Secretary of State.

       DATED this ____ day of February, 2014.



                                                 /S/ MIKE McGRATH
                                                 /S/ BETH BAKER
                                                 /S/ PATRICIA COTTER
                                                 /S/ LAURIE McKINNON
                                                 /S/ JIM RICE



Justice Michael E 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 nothing to do with compliance

with the NVRA. Thus, the statement in the title of LR-126 to the contrary is a fatal

defect that cannot be cured. The Legislature was made aware of this defect by the

Secretary of State, and others, while Senate Bill 405 (LR-126 in legislative bill draft

form) was working its way through the legislative process. In spite of these warnings, the

Legislature passed Senate Bill 405 with the defective, misleading language in the title.

¶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

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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




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