Text

Constitution of Montana -- Article IV -- SUFFRAGE AND ELECTIONS. Section 6. Privilege from Arrest. A qualified elector is privileged from arrest at polling places and in going to and returning therefrom, unless apprehended in the commission of a felony or a breach of the peace.[1]

History

Sources

1884 Proposed Montana Constitution

Art. VII, Section 2. Electors shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at elections, and in going to and returning therefrom.[2]

1889 Montana Constitution

Art. IX, Section 4. The 1889 Constitution adopted Art. VII, Section 2 of the proposed Montana Constitution verbatim.[3]

Montana Statutes

Several statutory sections providing privilege from arrest to electors predating the 1972 Constitution. Section 1183 of the Complete Codes and Statutes of the State of Montana was enacted in 1895 and provided that "[e]lectors must in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at elections, and in going to and returning therefrom. Sec. 1183, Complete Codes and Statutes of the State of Montana in Force July 1, 1895 (1895). This law was reenacted in two places by R.C.M. 23-308 and 23-2705 in 1947, which adopted the intent of Section 1183; 23-308 took the language verbatim. R.C.M. 23-308 (1947). R.C.M 23-308, in turn, was re-codified in 1967 under 95-616. R.C.M. 23-2705 was re-codified in 1969 under ch.368, section 10. Presently, R.C.M. 23-308 exists as Section 46-6-102, Montana Code Annotated; R.C.M. 23-2705 exists as Section 13-1-115, Montana Code Annotated.

Other States

Despite the delegates claim that no other constitution contained a comparable section regarding elector privilege from arrest, several other state constitutions had similar sections that predated the 1972 Convention. Those states include: Alabama, Art. VIII, Section 192 (1901)(since repealed by Amendment 579 in 1996); Arizona, Art. VII, Section 4 (1910); Arkansas, Art. III, Section 4 (1874); California, Art. II, Section 2 (1849)(repealed in November 1972); Colorado, Art. VII, Section 5 (1876); Connecticut, Art. VI, Section 6 (1965); Delaware, Art. V, Section 5 (1897); Indiana, Art. II, Section 12 (1851); Iowa, Art. II, Section 2 (1857); Kansas, Art. V, Section 7 (1861); Kentucky, Section 149 (1891); Maine, Art. II, Section 2 (1820); Minnesota, Art. VII, Section 4 (1857); Missouri, Art. VIII, Section 4 (1945); Nebraska, Art. VI, Section 5 (1875); Nevada, Art. II, Section 4 (1864); Ohio, Art. V, Section 3 (repealed 1976); Oklahoma, Art. III, Section 5 (1907); Oregon, Art. II, Section 13 (1857); Pennsylvania, Art. VII, Section 5 (renumbered 1967); South Carolina, Art. II, Section 11 (1895); South Dakota, Art. VII, Section 5 (amended in 1974); Tennessee, Art. IV, Section 3 (1870); Texas, Art. VI, Section 5 (1845); Utah, Art. IV, Section 3 (1895); Virginia, Art. II, Section 9 (1971); Washington, Art. VI, Section 5 (1889); West Virginia, Art. IV, Section 3 (1872); Wyoming, Art. VI, Section 3 (1889).

Drafting

Majority Proposal

The Majority Proposal of the General Government and Constitutional Amendment Committee did not contain a comparable section to Art. IX, Section 4 of the 1889 Constitution. The delegates of the majority proposal commented that "Section 4 given all its exceptions, is of little value and can be implemented just as effectively by legislation. There is no comparable section in the proposed article." Montana Constitutional Convention 1971-1972, Vol. I, Suffrage and Elections Committee Majority Proposal, at 336 (1979).

Minority Proposal

The minority proposal likewise contained no comparable section to Art. IX, Section 4. Montana Constitutional Convention 1971-1971, Vol. I, Suffrage and Elections Committee Minority Proposal, at 341 (1979).

Amendment

When floor debate commenced on the Committee proposals, Delegate Leuthold proposed an amendment to add a new Section 6 that would be identical with Art. IX, Section 4 of the 1889 Constitution.Montana Constitutional Convention 1971-1972, Vol. III, Verbatim Transcript at 419 (1979). Delegate Leuthold felt that privilege from arrest, while perhaps not important at the time of the convention, may become more important in the future, and was uncomfortable leaving things to the legislature. Id. Delegate Kelleher seconded Leuthold's motion, remarking that he had been stopped for speeding on the way to a "noncaucus caucus" and thought he would have to use his immunity; he believed that it was important to grant electors the same privilege from arrest that legislators would have. Id. at 419-20 Delegate Kamhoot echoed Kelleher's support, stating that the right to vote would be violated if someone were stopped for speeding and kept from voting; Delegate Harlow noted that speeding would still be considered a breach of the peace, a comment that was unaddressed by the amendment's supporters. Id. at 420 Delegate Brown, a member of the Suffrage and Elections Committee, opposed the motion, noting that the Committee deleted the provision because it was not present in any other constitution the Committee compared it to; the Committee viewed it as a matter best left to the Legislature, not a constitutional matter. Id. The Convention passed Delegate Leuthold's amendment 50-48, with 2 delegates not voting.Id. at 422.

Committee Work and Revisions

Section 6. A qualified elector is privileged from arrest at polling places and in going to and returning therefrom, unless apprehended in the commission of a felony or breach of the peace. Montana Constitutional Convention 1971-1972, Vol. II, Suffrage and Elections Committee Proposal, at 847 (1979).

Committee Comments

Following Delegate Leuthold's amendment to add Art. IX, Section 4 to the new Constitution, the Committee on Style commented that: "The Convention voted to adopt the language from the present Constitution, the style of which varies from that of this Article. The Committee on Style interpreted the existing language as intended to protect the voter from arrest only for acts committed en route to the polls. It expressed that interpretation in the proposed substitute. The word "treason" has been omitted because it is the opinion of the Committee on Style that it is included within the term "felony." Montana Constitutional Convention 1971-1972, Vol. II, Suffrage and Elections Committee Proposal, at 846 (1979).

Floor Debate and Voting

Delegate Schlitz, a member of the Style and Drafting Committee, recommended that Art. IV, Section 6 be adopted. He noted that the Style and Drafting Committee debated what was intended by Art. IV, Section 6, and that this particular section of the Constitution "has never been interpreted [and] probably never will be..."Montana Constitutional Convention 1971-1972, Vol. IV, Verbatim Transcript at 1186 (1979). The Style and Drafting Committee believed that the intent of this section was to protect voters from overzealous mayors, sheriffs, and national guards, and the previous language of Art. IX, Section 4 allowed an individual who was at-large after committing a felony exemption from arrest at a polling; the Style and Drafting Committee amended that in the present version. Id. at 1186-87. No further debate took place over the section. In the final vote on Art. IV, Section 6, the Convention approved the language in a 91-2 vote, with 7 delegates excused/absent. Montana Constitutional Convention 1971-1972, Vol. VI, Verbatim Transcript at 1867-68 (1979).

Ratification

The public presentation of Article IV itself was minimal. The 1972 Voter Pamphlet told voters that Article IV was "retained from present constitution" and highlighted that Article IV provided "certain election safeguards, such as protecting voters from police harassment. Section 6." Proposed 1972 Constitution for the State of Montana, Voter Information Pamphlet at 3 (1972). The description of Article IV, Section 6 was minimal as well; "1889 constitution reworded. Voter is immune from arrest during the voting process unless during such time he commits a felony or breach of peace." Id. at 9.

Interpretation

As the delegates predicted, there have been no court cases that have interpreted Art. IV, Section 6.

Commentary