IV.5 Result of Elections
Montana Constitution of 1972
Section 5. Result of elections. In all elections held by the people, the person or persons receiving the largest number of votes shall be declared elected. https://leg.mt.gov/bills/mca/title_0000/article_0040/part_0010/section_0050/0000-0040-0010-0050.html
History
Sources
1884 Proposed Constitution
The proposed 1884 constitution did not specifically require that the person or persons receiving the largest number of votes be declared elected. But it did have a provision that gave the Legislature authority to pass laws to secure the purity of elections and guard against abuses of the elective franchise. Mont. Const. of 1884, art. VII, § 10. This could be considered as indicia of the intent of the 1884 delegates to ensure that elections held by the people would be decided by the popular vote with each vote only going to one candidate or issue. However, this popular vote system was not actually used when electing delegates to the 1889 Constitutional Convention. A proportional voting system was used pursuant to the 1889 Congressional Enabling Act, which allowed each voter to weight their vote in more than one direction.James Grady, Suffrage and Elections 4 (Mont. Const. Convention Comm'n, Mont. Const. Convention Studies No. 11, 1971).
1889 Constitution
The 1889 Constitution that was ratified did contain a provision that is nearly identical to the current Section 5 provision. It states: "In all elections held by the people under this constitution, the person or persons who shall receive the highest number of legal votes shall be declared elected." Mont. Const. of 1889, art. IX, § 13. The differences between this provision from the 1889 Constitution and the current Section 5 provision are the 1889 provision including the phrase "under this constitution"; "who shall receive" rather than "receiving"; "highest" rather than "largest"; and "legal votes" rather than "votes." The first three differences are more stylistic, but the inclusion of the word "legal" before votes in the 1889 provision seems to follow the 1884 provision for guarding against abuses of the elective franchise and voting process. This would seem to support both the popular vote model, as well as the idea of "one person, one vote." The absence of "legal" in the current Section 5 may have been intentional by the delegates or may have considered superfluous during the drafting of the 1972 Constitution.
Further Studies of the 1889 Constitution
A 1910 study of constitutional sources found that article 9 of the 1889 Constitution covering Voting and Elections was based mainly on the California and Colorado state constitutions of the time.Elbert Allen, Sources of the Montana State Constitution 5 (Mont. Const. Convention Comm'n, Mont. Const. Convention Studies No. 4, 1971). This study was performed by Elbert Allen for the Montana Historical Society, and his analysis was republished by the 1971 Constitutional Convention Commission for the 1972 Constitutional Convention.Id. at Preface.
A report by the 1968 Montana Legislative Council provided recommendations on each provision of the 1889 Constitution. This report was used by the 1969 Legislative Assembly to create the Montana Constitutional Revision Commission and to place Referendum 67 on the November 1970 General Election ballot to call for a constitutional convention.Mont. Leg. Council, Legislative Council Report on the Montana Constitution Preface (Mont. Const. Convention Comm'n, Mont. Const. Convention Studies No. 6, 1971). This report was republished for the Constitutional Convention that resulted from the November 1970 General Election. Regarding article IX, § 13 and the results of elections, the Council commented that only one of the six constitutions from other states used for comparative purposes had a similar provision, but the Council believed the provision was adequate and should be kept in the new constitution.Id. at 49.
Constitutional Commission Report
James Grady in his report on Suffrage and Elections given to the 1971 Montana Constitutional Commission relied on the contextual impact and importance of both the Fourteenth Amendment of the U.S. Constitution, and the U.S. Supreme Court decisions in Baker v. Carr, 396 U.S. 186 (1962), and Hadley v. Junior Coll. Dist. of Metro. Kansas City, 397 U.S. 50 (1970) to lay the foundation of the popular vote system that is embodied in article 4, § 5.Grady at 14-15. Grady discussed how the Fourteenth Amendment helped establish the concept of universal suffrage, and how the Court in Baker and Hadley ruled that the Fourteenth Amendment requires state legislative bodies to be apportioned on a "one person, one vote" basis when the popular vote system is used.Id., Hadley at 56. This contextual analysis would appear to show that the U.S. Supreme Court's decisions overrule the proportional vote system that was used in the 1889 Constitutional Convention Enabling Act, which provided that in each district "three delegates shall be elected, but no voter shall vote for more that two persons for delegates to such conventions. . . ."Grady at 71; Fiftieth U.S. Congress, Enabling Act for the Montana Constitutional Convention of 1889 2 (Mont. Const. Convention Comm'n, Mont. Const. Convention Studies No. 2, 1971). This would seem to follow the trend away from proportional voting systems that was forming in the 1960's and continuing to today. Additionally, proportional elections in Montana seem to have been only for choosing constitutional convention delegates and not for general elections.
Grady also pointed out in his report that the integrity of the electoral process must be protected to retain public confidence in election results, and to permit candidates and their supporters to accept fair defeat.Grady at 78. This section providing that the person or persons with the largest number of votes shall be declared elected can likely be read in context and concert with § 3 of this same article. That section requires the legislature to insure the purity of elections and guard against abuses of the electoral process.Mont. Const. art. IV, § 3. That language in § 3 is taken basically verbatim from the 1889 Constitution article IX, § 9, and is very similar to the Colorado Constitutional provision requiring purity in elections.Mont. Const. of 1889, art. IX, § 9; Colo. Const. art. VII, § 11. This is evidence of Montana's constitutions using Colorado's constitution as guidance. Allen at 5. Grady's report was given to the Constitutional Convention Delegates for their reference, including his words on the purity of elections. Both this report and the "one person, one vote" theory that was being supported by the U.S. Supreme Court around that time may have influenced the delegate's decisions in the drafting and ratification of article IV, § 5.
Another reason that this section is in both the 1889 and 1972 Montana Constitutions is to insure orderly succession into office. State constitutions normally seek to insure orderly transition by three types of provisions.Grady at 65. This section allowing for the person receiving the highest number of votes to be declared elected is the first of the three types. This provision eliminates special run-off elections or governmental crises in the event no candidate obtains a simple majority.Id. This can be considered a plurality provision because under the language "largest number of votes," Montana only requires a plurality of votes for a candidate to be declared elected since there can be more than two candidates running for an office.
This section likely has been also used (as a majority provision) for ballot measures in addition to candidates. For example, when the Montana Legislative Council analyzed the Initiative and Referendum proposal for the new 1972 Constitution and offered suggestions for revisions to it, one of their suggestions involved initiative and referendum measures "becoming operative if approved by a majority of the legal voters at an election."Id. at 92-93 (emphasis added). This is similar to a Colorado statute providing for the passage of all measures by simple majority.Colo. Rev. Stat. Ann. § 1-40-123(2). Colorado also has a statute regarding ballot issues and ballot questions that requires a majority of the votes cast to be approved.Colo. Rev. Stat. Ann. § 1-11-102.5. This is similar to Montana since Montana also requires a majority for measures, and there is usually only two options for the measure: "For" or "Against".