HELENA — Montana voters who head to the polls next month to choose a president may be surprised to also find ballot questions on medical marijuana, abortion, illegal immigrants, whether corporations are people and health insurance mandates.
Those five measures have been overshadowed in a packed ballot that also includes high-stakes U.S. Senate and governor’s races, an open congressional seat and a lengthy list of legislative and judicial candidates.
Each measure deals with a contentious issue that has been the source of heated debate.
But two of them would not be enforceable if passed because they conflict with federal law, a constitutional scholar said. Those two measures deal with matters recently decided by the U.S. Supreme Court.
The first calls for a prohibition on governments from mandating that people buy health insurance. The second calls for a state policy that says corporations are not people entitled to constitutional rights and directs Montana’s congressional delegation to introduce a constitutional amendment saying as much.
If there is any conflict between state and federal laws, the federal law wins. That’s called the Supremacy Clause of the U.S. Constitution, said University of Montana law professor Anthony Johnstone.
“This means that while the Montana Legislature or the people of Montana may pass laws that conflict with federal law, such laws are unenforceable as a practical matter,” Johnstone said in an analysis of the ballot questions in response to an Associated Press query.
The health insurance mandate question is a legislative referendum placed on the ballot by majority Republicans who thought the measure had a better chance of passing by popular vote than getting past Democratic Gov. Brian Schweitzer. The question was drafted in reaction to the health insurance mandate in President Barack Obama’s Affordable Care Act, which was opposed by Republicans.
But the measure, called LR-122, was placed on the ballot before the Supreme Court ruled this summer that Obama’s law was constitutional and Congress has the power to impose the insurance mandate and the tax penalty enforcing it.
“So if enacted as state law, LR-122 would offer no legal defense to avoid the federal tax imposed by the Affordable Care Act,” Johnstone said.
The ballot question that opposes constitutional rights for corporations was spurred by the U.S. Supreme Court’s 2010 Citizens United decision that ruled a ban on corporate spending in federal elections was a restriction of free speech.
This year, the Supreme Court upheld that decision and applied it to state election laws by ruling Montana’s 100-year-old Corrupt Practices Act unconstitutional, and allowing some direct corporate spending in elections.
Given the Supreme Court’s ruling, that provision also wouldn’t be enforceable, Johnstone said. In addition, voters can’t direct the congressional delegation to act because once elected, the powers and duties of members of Congress are determined by federal, not state law, he said.
A third ballot question is a voter referendum of a law passed last year, and only three other voter referenda have appeared on the ballot since 1993.
The ballot measure asks voters to affirm or repeal a law that restricts who qualifies to register for medical marijuana, limits the number of people a provider can distribute it to and bans profits or compensation for providing it. A yes vote is to keep the new law in place, while a no vote is to repeal the new law and reinstate the 2004 voter-approved medical marijuana law.
Supporters of the new law say the sudden boom in registered users and providers after 2009 created a retail industry not foreseen by voters who approved medical marijuana in 2004. The boom came after a Department of Justice memo that said prosecutors would not pursue individuals who follow state law, and supporters of the restrictions say a multimillion dollar industry rose due to gray areas in the law.
Opponents say the new law is too restrictive, and is a repeal bill in disguise that goes against the will of the people who voted in medical marijuana in 2004. The restrictions will prevent seriously ill people from receiving the drug they need to eliminate pain, initiative opponents Lori Burnam, Sarah Baugh Combs and Dr. Edwin Stickney said in a prepared statement.
Medical marijuana advocates challenged the new law in a lawsuit, and the Montana Supreme Court this summer upheld the constitutionality of the ban on profits and limiting the number of patients per provider to three.
The two remaining referenda were authored by Republican lawmakers. One would require parents to be notified prior to an abortion for a girl under 16. A doctor who provides an abortion without proper notification could receive a six-month prison sentence and a $500 fine, according to the initiative.
Supporters say parents should be involved in such an important decision, and the child can petition a youth court judge to obtain a waiver of that notification in some cases.
Opponents argue that the government should stay out of such decisions and the right to privacy extends to all Montanans in making private medical decisions. This initiative would re-enact a parental notification law that was found to be unconstitutional in 1999 without addressing any of the problems found then, opponents said.
The last ballot question would deny some state services to illegal immigrants. The initiative would require every person who seeks any state service — from student aid to disability benefits to a state job — to prove that he is a U.S. citizen or in the country legally.
Republican state Sen. Jim Shockley and Rep. David Howard wrote in support of the initiative, saying it would prevent illegal immigrants from obtaining services at the expense of citizens and prevent them from taking jobs at a time of high unemployment.
Opponents say the initiative would trade in Montana’s tradition of being open and friendly for bureaucratic red tape and identity checks whenever a person applies for a state service, and it would misplace the burden of identifying illegal immigrants on employers.