The campaign to bring a top-four primary to Montana got some welcome news last week when the state Supreme Court unanimously overruled a move by Republican Attorney General Austin Knudsen that would have kept a proposed constitutional amendment off the 2024 general election ballot. Montanans for Election Reform isn't done dealing with Knudsen, however, as he still has to review a second ballot measure that would require winning candidates to secure a majority of the vote.
The Montana Free Press explains that MER wants to implement a system similar to that used in Alaska, under which all candidates, regardless of party, would compete in one primary. The four contenders with the most votes would then advance to an instant-runoff general election.
The amendment that the Supreme Court acted on, which the secretary of state's office has designated Ballot Issue 12, would replace Montana's partisan primaries with a top-four setup. However, it doesn't include any rules for how the second round of voting would work, likely to avoid running afoul of the state's "single-subject" rule for ballot measures—which itself was at the core of MER's legal dispute with Knudsen.
To fill this gap, reformers are also proposing another amendment, Ballot Issue 13, "provide[s] that elections for certain offices must be decided by majority vote as determined as provided by law rather than by a plurality or the largest amount of the votes."
Both amendments would apply to the same set of elections: those for U.S. Senate, U.S. House, statewide posts, the legislature, "and other offices as provided by law." Issue 12 also contains provisions designed to ensure that third-party and independent hopefuls can still make the ballot, including one that limits the number of signatures needed to reach the primary.
Notably, though, Issue 13 does not require ranked-choice voting. Indeed, the GOP-led legislature banned instant-runoff voting earlier this year, and it's not clear what method the state would use to ensure winners secure a majority of the vote if voters were to approve the amendment.
MER sued Knudsen last month after he determined that Issue 12 violated the state constitution by addressing too many separate issues. Montana's highest court, however, disagreed with the attorney general's interpretation and sided with the plaintiffs. While Knudsen insisted that the signature requirements were a separate topic from the top-four system, Chief Justice Mike McGrath wrote that "the signature-gathering limitation is not a separate function but is rather, as MER asserts, an integral part of the top-four primary system BI-12 proposes."
MER now has until June 21 to collect 60,000 signatures, an amount equal to 10% of the vote in the most recent election for governor, including 10% in at least 40 of the 100 districts in the state House. Organizers can only start the signature gathering process for Issue 12, though, since Knudsen has not yet finished his review of Issue 13.
Both of the proposed amendments come after the state's junior U.S. senator, NRSC chair Steve Daines, reportedly pressured the legislature to make a very different change in order to weaken Democratic Sen. Jon Tester next year.
The state Senate passed a bill in the spring to implement a top-two primary system, but only for Montana's 2024 U.S. Senate race. Critics argued the move was a scheme to hurt Tester in a state where Republicans frequently complain that Libertarian Party candidates cost them vital support. Indeed, one unnamed GOP lawmaker told the New York Times that party officials outright said that beating Tester was the plan's purpose.
However, the legislature adjourned in May without agreeing on anything, so Tester still only needs to secure a plurality to win reelection next year.