Constitutional Coup? The Case that Promulgated a New Constitution for Montana

I. The Most Important Montana Case Ever 1

On August 18, 1972, the Montana Supreme Court, in a 3-2 decision, issued its judgment in State of Montana ex rel. Cashmore v. Anderson. 2 At the time, the case was described as the most important Montana’s high court had ever decided. 3 And so it was. By resolving a contested referendum, the court replaced the state’s original 1889 constitution with a new one based on very different political premises. By freeing state and local government from constitutional restrictions designed to curb corruption, special interest influence, and excessive state spending, the case paved the way for dramatic changes in state policies 4 that arguably contributed to Montana’s precipitous relative economic decline in the ensuing years. 5

The Cashmore case was distinctive for other reasons as well. Rather than allowing the case to work its way up the judicial hierarchy, the Montana Supreme Court granted a request that the court dispose of it immediately by exercising original jurisdiction. Even when a dispute over determinative facts arose shortly before the scheduled hearing the court retained the case rather than remit it to a fact-finder. Then without providing the losing side sufficient time to respond to the new factual issues, the court held a hearing limited to legal issues and soon thereafter issued its decision.

Before the case arose, there was an almost-universal understanding of the specific voter majority required for approval of a new Montana constitution. Cashmore not only abandoned that understanding for a different one, but did so after the referendum already had been held.

For a case of such consequence the majority and dissenting opinions were oddly drafted. They were indifferently researched, curiously disorganized, internally inconsistent, and occasionally incoherent. The dissent showed signs of being patched together at different times and under different circumstances. Some Montanans in a position to know believe that one justice on the five-man court changed his mind after initial drafts were prepared, thereby forcing hasty redrafting. Some claim the vote switch was the product of political pressure.

Such a case cries out for scholarly review. But there has been almost none in the 46 years since the constitution was proclaimed. Montana’s principal organ of legal analysis, the Montana Law Review, has published almost nothing on the subject. 6 Two professors at the law school that sponsors the Review penned a 250-page book on the 1972 constitution, but managed to dismiss the Cashmore case in a single paragraph. 7 Perhaps this silence is related to the school’s deep involvement in the network that created, and continues to promote, the 1972 constitution. 8

The silence on Cashmore has been accompanied by much celebration of the 1972 constitution itself. 9 Below the patina of satisfaction, however, the document remains controversial in some quarters. 10 In any event, it is always appropriate to inquire whether a state constitution was properly adopted. The same question is commonly asked even of our venerated American Constitution. 11 In a republic where the people are said to be the font of political power, it is best to ensure that any state constitution is truly the product of popular will.

II. The Law of Majorities

III. The Movement for a More Liberal 70 Montana Constitution

IV. The Proclamation, the Lawsuit, and the Decision

Before the election, the convention leaders had shared the common understanding that “a majority of the electors voting at the election” meant a majority of all voters participating. 196 Once they saw the election results, however, they turned on a dime. They now claimed that “a majority of the electors voting at the election” meant only that the “yes” vote had to be greater than the “no” vote. 197 The lawyer-delegates, who during the convention had been unanimous in affirming the former meaning promptly began to argue for the latter. 198

Overruling the scruples of Frank Murray, the Democratic Secretary of State, 199 Governor Forrest Anderson, also a Democrat, signed a proclamation of ratification on June 20, 1972. 200 A fierce argument ensued between Murray and Anderson, 201 but the governor remained fixed. When Murray objected that the governor had not signed the document in his presence, Anderson scrawled his signature on the document a second time. 202 The proclamation shows one signature superimposed on an earlier one. 203

U.S. District Judge Charles C. Lovell, who as a young lawyer argued Cashmore for the state attorney general’s office, says he was never quite sure of Anderson’s motives in signing—whether he believed the constitutional majority standard didn’t mean what everyone said it did, or whether he was putting on a political show. 204 The grandiose language of the news release accompanying the proclamation is consistent with the latter: “Government must be free to act,” Anderson declared, “and I proclaim the passage of this Constitution, declaring it to be a major step in that direction.” 205

Contemporaneously with the signing, lawyers for William C. Cashmore, a Helena physician, and Stanley C. Burger, executive director of the Farm Bureau, 206 appeared before the Montana Supreme Court. In separate but substantively identical applications the two of them—styled “relators” in the pleadings—asked the court to assume original jurisdiction, emphasizing the importance of the case and claiming there were no factual disputes. For relief they requested an order directing the governor to appear and show cause why the new constitution should not be declared invalid. They further asked for an injunction or, alternatively, a writ of prohibition preventing the governor from proclaiming ratification. 207 But the governor had signed a just few minutes earlier, rendering their requests for an injunction or writ of prohibition moot. 208 Accordingly, the court, in an order issued two days later, treated their applications as requests for a declaratory judgment. The order recited an earlier, presumably oral, order consolidating the two cases. It further recited the absence of factual issues, fixed a schedule for response, and invited other interested parties to intervene or file briefs as amici curiae. 209

On June 28, the governor filed his answer and a supporting brief. 210 He did so pro se, although the documents likely were drafted by his chief of staff, William Crowley, a University of Montana law professor and civil procedure expert. 211 The governor admitted there was no factual dispute, but contested the relators’ interpretation of the law. On June 20, at Lovell’s recommendation, the Republican attorney general requested permission to intervene to support the Democratic governor, and the court immediately granted this request. 212 On July 11, the court scheduled oral argument for July 17. 213 On July 11 also Burger filed his principal brief, and Cashmore did so the following day. 214

As in the referendum campaign, the constitution’s opponents found themselves outgunned. Intervening to support the governor and the attorney general were the City of Billings, Montana’s largest municipality; Robert L. Kelleher, a lawyer who had served as a convention delegate; and a group of former delegates led by Leo Graybill, Jr., the convention president. Submitting amicus curiae briefs on the same side were five organizations, including Common Cause and the League of Women Voters. 215 No organization or governmental unit supported the relators. They were backed by four amici, all individuals, and a single group of six individuals. 216 Among the pro-relator amicus briefs, only that of Billings lawyer Gerald J. Neely represented a respectable effort. 217

The relators soon faced a more serious disadvantage. The court had assumed original jurisdiction on the premise, accepted by all, that there was no factual dispute. The relators, their supporting intervenors, and their allied amici had prepared their briefs on that supposition. Then, on July 12—a scant five days before oral argument and more than three weeks after receiving permission to intervene—the attorney general filed his formal answer. 218 This document challenged for the first time the consensus that there was no factual dispute.

The attorney general’s answer, backed by a brief filed two days later, 219 contended that the number certified by the secretary of state as the total voting was an overstatement. According to the attorney general, the secretary of state’s figure included all ballots issued to electors at the polls, including those that were blank, mutilated, discarded, or otherwise not properly voted. “[T]he total number of individual electors voting at such election,” the attorney general stated, “is some number less than, and perhaps markedly less than, 237,600.” 220

Apparently several intervenors and amici allied with the governor knew in advance that the attorney general had this surprise planned, because within two days the Graybill intervenors, the League of Women Voters, and Common Cause all had filed briefs focusing on the new factual dispute. 221

Under these circumstances, the court could have pursued any of three defensible courses. The best would have been to remit the case to a trial judge for a hearing on the factual question—and, preferably, for development of the legal issues as well. The second best would have been to employ a special master to resolve the factual question. A barely-defensible option would have been to postpone oral argument and afford the relators time to investigate and respond. But the court adopted none of these courses. Instead, it retained original jurisdiction and proceeded with oral arguments as scheduled.

Those arguments were held on July 17, with numerous convention delegates peering from the courtroom galleries. 222 Judge Lovell says that he focused his argument on dicta from a 1902 case because the dicta had been composed by Montana’s longest serving Chief Justice, Theodore M. Brantley. 223 Lawyers speculated that Justices Frank I. Haswell and Gene B. Daly probably would vote for the new constitution because they were more liberal, while Chief Justice James T. Harrison and Justice Wesley Castles, who were relatively conservative, would oppose it. The swing justice was said to be Justice John C. Harrison. 224

On the face of it, those predictions seem to have been confirmed. 225 On August 18, 1972, the court ruled 3-2 in favor of the governor and for ratification, holding that a majority of the vote on the issue was sufficient. Justice Haswell wrote on behalf of a majority that included Gene B. Daly and John C. Harrison. James T. Harrison penned the dissent for himself and Castles.

V. Cashmore’s Majority Opinion

In view of the importance of the case and its departure from previous authority, it would be gratifying to report that Justice Haswell’s opinion was rigorously researched, carefully written, and powerfully argued. Unfortunately, such a report cannot be made. Indeed, the opinion’s organizational defects are such that reorganization is necessary before analysis can be attempted. When reorganized, Justice Haswell’s opinion coalesces into six fundamental propositions:

1. The framers did not clearly require an “extraordinary majority” because “a majority of electors voting at the election” is ambiguous.

2. The precedents from other states are in hopeless conflict.

3. The Montana precedents favor a simple majority.

4. “Natural right” favors a simple majority rather than an extraordinary majority.

5. The constitution’s variation in language is explainable on grounds other than variation of meaning.

6. The constitution was adopted even under the relators’ understanding of the rule.

We consider each point, in turn.

B. The Court’s Claim that Precedents from Other States Were in Hopeless Conflict

On this subject, Justice Haswell wrote for the court:

We recognize that there are two distinct and opposing lines of authority in other jurisdictions having the same or similar constitutional language. … These cases are cited merely to indicate the two conflicting lines of authority but are not relied upon or determinative of our decision in the instant case. We prefer to look to Montana statutes and cases for guidance in interpreting the meaning of our own constitutional provisions. 235

In fact, there were not “two distinct and opposing lines of authority.” Those cases equating “a majority of electors voting at the election” with “a majority voting on the question” arose from single issue special elections. In other words, they differed only in the scope of the election, not in the meaning of “a majority of electors voting.” 236 As the Cashmore dissenters pointed out, the alleged split of authority was more apparent than real. 237

This passage seems to have served the rhetorical purposes of dismissing all authority but two Montana cases on which the court’s majority wished to rely.

C. The Court’s Claim that the Montana Precedents Favored a Simple Majority

Having disposed of other authority, Justice Haswell opined that “we must consider the policy and philosophy of government contained in our Constitution as enunciated in numerous [Montana] cases … . ” 238 Those “numerous” cases turned out to be two: Tinkel v. Griffin239 and Morse v. Granite County. 240

Tinkel involved a one-issue special election, so the number of votes in the election was identical to the number of votes on the issue. 241 In addition, the constitutional provision at issue in Tinkel was worded differently from the governing provision in Cashmore. The clause relevant to Tinkel required that for a county bond issue to pass, approval was necessary by “a majority of the electors thereof, voting at an election”. 242 Thus, the provision relevant to Tinkel, unlike that relevant to Cashmore, featured a comma before the word “voting.” This signals, of course, that the ensuing phrase is not restrictive—that is, the ensuring phrase does not define or limit the meaning of “electors.” (This use of the comma as a non-restrictive signal was paralleled elsewhere in the 1889 constitution. 243) A county bond issue, in other words, needed approval by a majority of all electors. The statute implementing Article V, Section 13 interpreted the comma as non-restrictive as well, for it required approval by “a majority of the electors of the county.” 244

As noted earlier, 245 some cases interpret “a majority of electors” to mean either (1) the majority of electors voting or (2) a majority voting on the question. One can classify Tinkel among the second group. But that was not relevant to the interpretation of the clause at issue in Cashmore. 246

Morse v. Granite County247 was in all relevant respects identical to Tinkel. In Morse the court stated that the single issue referendum had been offered at a general election, but closer examination of the court’s opinion shows that the referendum actually was a single-issue special election held concurrently with the general election: It was a one-county affair characterized by a separate call, separate notice, and separate ballots. 248 Moreover, it was a county bonding referendum, subject to the same constitutional and statutory provisions that governed Tinkel. 249

Justice Haswell must have understood that neither Tinkel nor Morse dictated the answer in Cashmore. 250 This explains why he glossed over the law and facts governing those cases in favor of dicta in Tinkel, which he cited primarily as evidence of “policy and philosophy.” 251

D. The Court’s Claim that the 1889 Constitution’s Variation in Language was Explainable on Grounds Other than Variation of Meaning

There is a presumption that when a legal document employs different phrases the phrases carry different meanings. 252 However, in writing for the court Justice Haswell stated that the “differences in the language employed by the framers of our Constitution in the different election provisions … are no evidence of a differing intent on the part of the framers, but are the result of inherent constitutional differences in the elections themselves, which in turn requires different language.” 253 He explained:

The first part of Section 8 relating to calling a constitutional convention requires a referendum vote by “a majority of those voting on the question”; Section 9 dealing with submission of individual constitutional amendments by the legislature requires referendum to the qualified electors and approval “by a majority of those voting thereon”. That part of Section 8 we are called upon to construe requires . . . approval by ‘a majority of the electors voting at the election”.

The reason for the difference in language between these three provisions is readily apparent. The referendum to the voters on the calling of a constitutional convention is normally held at a general election as was done here; consequently, the phrase requiring “a majority of those voting on the question” was employed to distinguish the constitutional referendum question from other general election issues.

The language of Section 9 relating to submission to the electors of individual constitutional amendments proposed by the legislature must be at a general election where up to three such amendments can be submitted at the same election, thus the language “approved by a majority of those voting thereon” is used.

The language of Section 8, that we must construe.—“a majority of the electors voting at the election” was used because a separate election is required for approval or rejection of a constitution proposed by a constitutional convention and there is no need to differentiate between approval or rejection of a proposed constitution at such separate election and issues at some other election held at the same time. 254

Yet this passage adds text to the 1889 constitution that was not present. It states, “The referendum to the voters on the calling of a constitutional convention is normally held at a general election as was done here,” but nothing in the constitution so required. It required only that the legislature “submit [the proposal for a convention] to the electors of the state.” 255 Nor was there any evidence that including the referendum in a general election, as in 1970, was any more “normal” than holding a special election for the purpose. The claim that “a separate election is required for approval or rejection of a constitution proposed by a constitutional convention” was similarly without textual basis. The constitution required only that the convention designate an election for the referendum; there was no requirement that the election be general or special. 256

Thus, Justice Haswell’s opinion created distinctions between elections that did not exist. And without them, no reason remained for disregarding the presumption that different language signifies different meaning.

E. The Court’s Claim that “Natural Right” Favors a Simple Majority Rather than an Extraordinary Majority

“We are mindful of the principle,” Justice Haswell wrote,

that when a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. Section 93-401-23, R.C. M. 1947. Majority rule is a natural right and fundamental tenet of government in a democracy, and only the strongest evidence that something more than a majority, i.e., an extraordinary majority, is required in a given situation will suffice. Here no such evidence exists.

Of course the differences between the parties arose not from differences about majority rule but about the group from which a majority is determined. The dispute was over decisional denominators rather than numerators. More importantly, perhaps, Justice Haswell cited no authority for the proposition that majority rule is a matter of natural right. On the contrary, one reason super-majority requirements appear in constitutions is to better protect the “natural rights” of individuals and minorities. 257

F. The Court’s Claim that the Constitution Was Adopted Even Under the Traditional Rule

Near the end of his majority opinion, Justice Haswell alluded to the factual issue raised by the attorney general: The secretary of state reported 237,600 electors as voting, but that figure may have included all those receiving ballots rather those who cast them properly. 258 Justice Haswell therefore determined that “the figure of 237,600 labeled ‘total number of electors voting at the election’ on the Secretary of State’s certificate is demonstrably incorrect, and the disputable statutory presumption of correctness of such figure … must yield to the facts.”

Certainly the court should have yielded to the facts, but it neither ordered a recanvassing nor appointed a fact-finder to determine what those facts were. Instead, the majority opinion insisted that

We can make that determination on the materials before us. If we take the total number of electors who cast ballots that were counted on the issue receiving the largest total vote, this should approximate the total number of electors voting in the election. 259

Accordingly, the majority added together the number of votes on the most-voted for issue in each county—that is, the gambling question in 18 counties and the constitution in the remaining 38. This yielded a total of 230,588 voters. The constitution, wrote Justice Haswell, was ratified under the traditional rule because the affirmative vote of 116,415 represented a majority of 230,588. 260

Unfortunately, these calculations demonstrated a lack of numerical understanding. In absence of specific legal authorization, one cannot employ the most-voted-on question as a proxy for total votes cast because some electors opt to vote only on issues other than the most-voted-on question. Consider the hypothetical five-voter election posited above: 261

• * Elector 1 votes for governor and on Proposition A.

• * Elector 2 votes for governor, senator and on Propositions A and B.

• * Elector 3 votes for governor, senator, and on Proposition B.

• * Elector 4 votes for senator and on Proposition A.

• * Elector 5 votes on Proposition A only.

The most voted-on candidate or issue is Proposition A—four votes. But that was not the number of electors who voted (five), because Elector 3 voted for the candidates and on Proposition B, but not on Proposition A.

Nor was this a merely theoretical concern in the actual referendum:

• Advocates of the constitution, the press, and presumably election officials repeatedly told the electors that an abstention on any proposition was effectively a vote against it. 262 The death penalty was, as it is now, a subject of passionate views. Those who went to the polls to vote for the death penalty, particularly social conservatives, had reason not to bother voting on the other (more liberal) proposals. The court’s count omitted all of those voters.

• Gambling was also contentious. No doubt there were single-issue voters who went to the polls to cast their ballot on gambling and nothing else. The court’s count omitted electors who chose only to vote on gambling in counties where the constitution was the most-voted-on issue.

• Some people in the eighteen counties where gambling was the most-voted-on issue may have chosen only to vote on the constitution, on unicameralism, and/or on the death penalty. The court’s count omitted them as well.

In other words, the court’s estimate omitted every elector in 36 counties who cast a ballot but decided not to vote on the constitution and every elector in the other eighteen counties who cast a ballot but decided not to vote on gambling. The number omitted may have been very significant—but even an undercount of less than one percent would have raised the denominator sufficiently to depress the constitution’s percentage below the necessary majority. 263

VI. Chief Justice Harrison’s Dissent

Chief Justice James T. Harrison’s dissenting opinion 264 was structured in a peculiar manner. It revealed signs of piecemeal drafting, with different parts written at different times and perhaps by different authors.

As finally issued, the dissenting opinion began with a preface of about 660 words. This preface was haunted by a spirit of exasperation. It recited earlier proceedings and complained that the majority was not acting in a consistent manner. It specifically criticized Justice Haswell for contradicting his own statement in an earlier case. 265

After the preface came the core exegesis. It was composed in the indicative mood. 266 It consisted of about 6300 words, of which more than half—a recital of authorities—was cribbed nearly verbatim from Dr. Cashmore’s principal brief. 267 The core exegesis also borrowed from an exhaustive amicus brief by Billings lawyer Gerald J. Neely. 268 Near the end of the core was a 150-word insert written in the subjunctive mood, 269 after which the opinion returned to the indicative. 270 The last three paragraphs were written in the subjunctive and served as a conclusion. 271 Like the preface, this conclusion is testy in tone. 272

From the overall structure it appears that the core exegesis was to be the majority opinion, but when it became clear the writer or writers did not command the majority, he (or they) interlineated the 150-word passage, added the frustrated preface, and appended the testy conclusion.

Supporting the hypothesis of piecework composition are some other oddities. One passage was incoherent and another bore no relation to the remainder of the text. The incoherent passage appeared in the portion of the opinion that agreed with the holding in Tinkel:

We have no argument with that philosophy. The same argument is applicable to the case at bar because the total number of votes for the proposed constitution may have been less than a majority of those who voted on that separate issue. 273

Perhaps the writer intended to say he agreed with Tinkel insofar as it limited the decisional denominator to those who voted in the special election, but that Tinkel was inapplicable because the proposed constitution may have received less than a majority of those who voted in the special election.

The passage without relation to anything else in the opinion was as follows:

We would find then that ‘positive assent’ is the same as ‘a majority of the electors voting at the election’. This positive assent is referred to by many writers and courts as an extraordinary majority. 274

This passage appears to have been dropped into the opinion by mistake. There is no other reference to “positive assent” in either the majority or dissenting opinions. The passage derives from the part of Neely’s brief that explained the “majority of electors voting at the election” requirement as one that ensured that ratifiers approve by positive assent rather than by silence. 275

The coherent portions of the dissent’s core exegesis cited and reproduced extracts from constitutional provisions and from eight decided cases defining “a majority of electors voting at the election.” It then distinguished Tinkel and Morse, and finally discussed the factual question of how many voted in the special election. 276 It argued that the number of electors who voted was “the critical, controlling fact figure,” 277 and that the court should order a “recanvass” [sic] to resolve it. Apparently, this process would involve only requiring each county election officer to clarify whether the number of voters he or she submitted to the secretary of state consisted of all ballots issued or only of ballots legally voted.

Despite its length, the dissent suffered from several lost opportunities. First, its author(s) should have contended that original jurisdiction had been improvidently granted or, once granted, should have been revoked after the factual issue surfaced. The factual issue—and, indeed, the complex and important legal issues—justified careful consideration at the district court level, or at least by a special master.

Second, the dissent should have noted the unfairness of the proceedings: Five days before the hearing—after all parties had agreed that there was no factual dispute and after the briefs of the relators and their allies had been prepared—the attorney general and his allies produced a factual dispute. Under the circumstances, the court should have postponed the hearing, asked the relators for briefs on the factual issue, or otherwise permitted an opportunity for response.

Third, the dissent strung together a list of relevant cases, but failed to draw two necessary conclusions: One was that the phrase “a majority of electors voting at the election” had a clear, accepted meaning, not a disputed or debatable one. The other was that this was also the meaning when the voters ratified the 1889 constitution. It was this understanding that should have governed the case, not the “philosophy” of the Tinkel dicta issued thirteen years later.

Fourth, the dissent failed to show how that meaning, and the public message that an abstention meant “no,” invited those who opposed the constitution to abstain.

Fifth, the dissent failed to mention how the manipulated structure of the paper ballot could have affected the election results. For example, contrary to the standard practice (followed for the other three propositions) that a “yes” vote is a vote to alter the status quo, the ballot provided that a “yes” vote continued the death penalty. It also advised voters that “If the proposed constitution fails to receive a majority of the votes cast, alternative issues also fail.” 278 Hence electors who contributed to the landslide majority in favor of the death penalty might well have voted for the constitution only because they were misled into believing that without the new constitution Montana could no longer inflict the death penalty.

Finally, the dissent failed to challenge the majority’s erroneous claim that the number of electors casting ballots on the most voted-upon issue was equivalent to the total number of electors voting.

VII. The Motion for a Rehearing

On September 5, Burger filed a petition for rehearing. The petition included extensive argument. Much of it represented a futile effort to persuade the court to reconsider its legal conclusions, but it also included the first written rebuttal of the attorney general’s claim of factual dispute. The petition pointed out that county election officials copied the voter numbers they sent to the secretary of state from their “poll books,” and that under state law a poll book recorded only those who actually cast valid ballots, not everyone who was issued a ballot. Attached to the petition were affidavits from two county clerks affirming that the numbers they transmitted represented only those who had properly voted. 279

The Burger petition also featured elaborate statistical examples showing that the number of votes on the most-voted-upon issue was not the same as the total number of electors participating in the election.

The following day, Dr. Cashmore also filed a petition for rehearing. Cashmore’s petition noted that the constitutional referendum was part of a multi-issue special election, and discussed cases arising in such elections. It also urged a “recount” of the vote. 280

The attorney general’s response accused the relators of trying to re-litigate issues the court already had decided. 281 After the filing of some additional papers—among them two very short amicus briefs in support of the relators but not really on point 282—the court denied re-hearing without explanation. The vote for denial was the same 3-2 tally that resulted in the initial decision. 283

The denial was, in retrospect, probably inevitable. The petitions contained little more on the legal issues than that already offered by the parties, intervenors, or amici in the earlier proceedings. The Burger petition, it is true, demonstrated clearly the error in equating the vote on the most-voted-on issues with “electors voting at the election.” Additionally, it cast doubt on the conclusion that there were fewer than 237,600 actual voters. But the statistical portion of the court’s opinion had been dicta anyway.

VIII. The Aftermath

After the Montana Supreme Court issued its decision on rehearing, Dr. Cashmore surrendered, as he earlier had announced he would. 284 Burger appealed to the U.S. Supreme Court, which denied certiorari. 285 He next sued in federal district court, claiming that, in violation of the Fourteenth Amendment to the U.S Constitution, the state had misled voters by informing them that an abstention on the constitution was a “no” vote. 286 He was joined by another voter, who alleged that he

was one of the 7,302 electors who did not vote on the constitution ... . He testified in his deposition that he voted for a bicameral legislature, gambling, and the death penalty, and that he understood that if the proposed constitution failed “the alternate issues also fail.” He failed to vote on the proposed constitution for two reasons: first, because he did not know enough “about the issues involved”, and second, because he felt that if he did not vote, “it was a vote against it.” He had read the ballot and the newspaper supplement. [His] wife voted as he did. 287

However the district court found no Fourteenth Amendment violation:

There is no suggestion that any publication or statement, either official or unofficial, was intended to misrepresent any facts or deceive or mislead the voters. The official ballot and publication followed the language of the existing constitution. The other statements at most contained an erroneous interpretation of an ambiguous provision in the Montana Constitution—an interpretation deemed correct by two of the five justices of the Montana Supreme Court.

In no document was there any advice or suggestion that the electors should not vote on the proposed constitution. On the contrary, the unofficial as well as the official publications urged a vote on all four issues. 288

The court added that the newspaper supplement was an “unofficial” document and that if “any electors were in fact misled, they were simply mistaken as to the effect of their abstention from voting and not deprived of any right or opportunity to vote … . ” 289

Although most election errors do not constitute Fourteenth Amendment violations, this decision is somewhat disquieting. Surely the Montana public was entitled to assume the constitutional language would be interpreted as represented by all concerned, with abstentions being counted as “no” votes. Perhaps Montana officials can be accused of changing settled election rules after the election was over—which surely is a Fourteenth Amendment violation. 290

IX. What Happened?

When the court granted original jurisdiction it did so upon the representation by all parties that there were no unresolved issues of fact. Once it became clear this was not true, a prudent tribunal would have remitted the case to a trial judge or at least to a special master. If the trier of fact found that a critical number of ballots issued were not validly cast, the constitution would have been ratified under the traditional rule, and there would have been no need to spend court time on exhaustive treatment of the law. Even in the absence of a factual dispute, the case could have benefited from lower court review because of the extensive amount of case law interpreting the phrase “a majority of the electors voting at the election.”

Why did the court retain original jurisdiction in such circumstances? Cashmore is not the only case in which the Montana Supreme Court’s exercise of original jurisdiction amounted to judicial malpractice, 291 but it was certainly the most important. And another question is “Why, having retained jurisdiction, did the justices decide to abandon a settled rule of law on which all parties, no matter what their views on the new constitution, had relied?”

The answer to the latter question may be simply because Charles C. Lovell from the attorney general’s office, funneling his appeal through the words of Montana’s longest-serving chief justice, out-argued the constitution’s opponents. Otherwise, the two questions may have some common answers. First, there is a substantial body of research showing that the decisions of judges, in particular elected judges, are influenced by personal incentives and judicial self-interest. 292

It is not disrespectful to the Montana Supreme Court to observe that the justices had powerful incentives to short-circuit the judicial process and uphold the 1972 constitution. The new constitution’s omission of fiscal limitations could be expected to increase funding for the judiciary. The greater scope for legislation and some of the new constitution’s open-ended language promised more judicial business and more scope for judicial efforts to “do good.” The new constitution also extended the justices’ terms of office from six years to eight. 293

Additional influences on the justices may have arisen from their daily associations: They were, after all, public employees and human beings. They were in the hub of a county that awarded the new constitution the second highest percentage of any county in the state. 294 The information flow in Helena at the time was such that they would have been inundated with claims that the new constitution was good for Montana. It was unlikely they had encountered any coherent, intelligent arguments to the contrary. 295 They worked in the same building as the governor, and the fact that they already had issued one decision against the movement for a new constitution 296 may have discouraged them from issuing another. 297

The justices may have been subtly affected also by the foreseeable consequences of alternative outcomes. It seems all but certain that the constitution’s advocates would have “punished” an adverse decision, perhaps with continued litigation and perhaps through mass media favorable to the new constitution. A decision against the constitution, on the other hand, entailed fewer costs. The constitution’s opponents had demonstrated their media ineptitude during the ratification campaign, and Dr. Cashmore had made a tactically unwise public statement ruling out in advance any federal court proceedings. 298 It was not then known that Burger was determined enough to proceed without him.

In such circumstances it is not remarkable that three justices voted to short-circuit the process, disregard precedent, and rule the constitution ratified. It is perhaps more remarkable that two justices did not.

Why, then, having decided to retain original jurisdiction and abandon the traditional rule, did they not take more time and care in organizing and composing their opinions?”

Part of the answer to this question may lie in the proceedings within the court’s chambers. Some insiders claim the initial vote among the justices was 2-3 against the constitution, that each side prepared an opinion on that basis, that one justice switched sides, and that both opinions had to be re-written. 299 This claim is corroborated by the structure of the dissent. As noted earlier, its core exegesis shows signs of having been composed as the opinion of the majority. Its preface and conclusion display a sense of exasperation the core exegesis does not show, and may have been tacked on later. 300 Moreover, the court’s decision was unaccountably delayed, and work continued feverishly right up to the very day Associate Justice John C. Harrison was to leave on a European vacation. 301

If the initial vote was 2-3, then who switched? The person usually identified is the affable John C. Harrison, 302 the same justice whom experienced attorneys identified early as the likely swing vote. 303 To be sure, there is some evidence Justice Harrison did not switch. First, he subsequently denied changing his position. 304 Second, even before the case was heard Harrison had acknowledged that in the referendum he had voted for the constitution. 305 Of course, a judge is not supposed to take his or her political preferences into account in deciding the law, but in practice this can be a difficult abstraction to apply, and it can be particularly difficult for a judge with circumscribed legal abilities—which Harrison certainly was. 306 Finally, the target of the dissent’s exasperation was Justice Haswell, not Harrison. 307

But several reports nevertheless identify John C. Harrison as the justice who changed his vote. According to a prominent constitutional convention delegate, someone leaked the story of the 2-3 preliminary tally (with Harrison voting against) to U.S. Senator Lee Metcalf, a strong advocate of the new constitution. Accordingly, Metcalf confronted Harrison in Helena and threatened to run him out of the state Democratic Party if he voted to (in his words) “kill the constitution.” 308 This tale of political pressure has been corroborated in part by Charles S. Johnson, former chief of the Lee Enterprises Helena Capitol Bureau and widely considered the dean of the Helena press corps. Johnson says he was present at the 1997 celebration of the constitution’s 25^th anniversary, when former convention president Leo Graybill openly announced in a banquet speech to attendees that he had personally contacted Metcalf and asked the Senator to induce Harrison to change his vote. 309 Researcher Ann Koopman of Bozeman has recovered the official program for the event, and it confirms that Johnson participated and that Graybill was one of two banquet speakers. 310

If tampering did occur, then it further explains why the justices did not draft their opinions with more care. There is not much incentive one to take pride in one’s written product when that product is not really your own.

X. Conclusion

There is, of course, no chance the Montana Supreme Court will reverse the result in Cashmore. In fact, the court is highly protective of the 1972 constitution. 311 Several reforms can, however, reduce the chances of similar results in the future, both in Montana and in other states.

One such reform would be to adopt rules that prevent state supreme courts from assuming original jurisdiction except in the most dire emergencies. Even in emergencies a case with unresolved factual issues is never appropriate for original jurisdiction without a mechanism for reliable fact-finding. After all, we have lower courts for a reason: They resolve factual issues in hearings specially designed to do so, and they clarify legal issues for higher tribunals. There was no real emergency in the Cashmore case, no reason it should not have been examined first by a trial court, and every reason to believe it should have been.

When appeals courts do exercise original jurisdiction, they should apply the usual standards for late-breaking evidence—that is, exclude it or provide the opposing party with a fair opportunity to respond. This would seem to be a basic requirement of due process.

More fundamentally, legal reformers should examine seriously the effects of incentives on judges and how to address them so as to better preserve judicial impartiality. For example, jurists who live in a capital city are as likely as anyone else to be caught up in the thinking that prevails in that capital city. When justices of a state’s highest court are reviewing the validity of a measure from which they, and the institution they work for, will benefit or suffer, they face a conflict of interest.

This Article does not focus on judicial reform, and I do not, therefore, offer comprehensive solutions. At the least, however, we might abandon the dogma that the state’s highest court must be located in the same place as the governor, legislature, and central bureaucracy. The Montana Supreme Court might be better located in Billings or Great Falls, or perhaps rotate between the two, rather than in the small-town political hot-house that is Helena.

Existing mechanisms for temporarily replacing judges who face conflicts of interest can be more broadly applied. Replacement could come from the ranks of district judges. Alternatively, or in addition, Montana could team with other low population states to form an interstate pool consisting of judges of unusually high quality. Montana could draw from the pool for impartial judges from other states in cases in which state supreme court justices face conflicts and the matter for determination does not require detailed knowledge of Montana law.312 This is not as radical as it sounds: Many other low-population jurisdictions utilize common judges,313 and Montana already teams with other states to provide certain other services.314

More important than any specific suggestion, however, is the lesson that the rule of law is a fragile thing, and easily shattered when those in power find the reasons for shattering it sufficiently appealing.