Constitutional legitimacy: A final reason for a Montana constitutional convention

“Was the 1972 Montana constitution truly ratified?”

The answer to that question remains unknown.

This is the last in a series explaining why Montanans should vote for a state constitutional convention in 2030. Earlier columns discussed defects in the current constitution and judicial misinterpretations of its provisions.

But another reason for a new constitution is that the current one is under a cloud.

When I was active in Montana civic life, I often heard claims that the constitution was never legally ratified. I initially dismissed them as conspiracy theory stuff. But my colleague on the University of Montana law faculty, the late William F. (“Duke”) Crowley, told me they had some merit. In 1972, he had been an aide to Governor Forrest Anderson, and he told me what he knew.

In 2017, I began a thorough investigation. Among the many witnesses I interviewed was the late Chuck Johnson, dean of the Montana press corps, who as a young reporter had covered the events.

I published my findings in a British scholarly journal—the only peer-reviewed study of the subject to date.

The constitutional convention adjourned on March 24, 1972, and scheduled a special ratification election for June 6. The constitution’s advocates enjoyed certain advantages: The early election date made it difficult for opponents to organize. The election’s rules and the ballot language both favored a “yes” vote. Advocates had some federal money and enjoyed media support.

But they faced one difficulty: The existing constitution required that for a new constitution to be ratified, it had to garner “yes” votes amounting to a majority of those showing up at the polls. It was not enough to receive a majority of the yes/no vote. The new constitution needed majority of everyone voting on any issue. If 100,000 people showed up but only 80,000 voted on the constitution, the constitution would need 50,001 votes to win.

The newspapers and pro-constitution campaigners thoroughly explained this to the voters.

The election returns showed the constitution receiving slightly more “yes” votes than “no” votes, but short of the necessary majority. Clearly, some people had abstained as their way of voting “no.” Accordingly, Frank Murray, the Democratic Secretary of State, refused to certify the election.

Democratic governor Forrest Anderson had no such hesitation. “Government must be free to act,” he announced, “and I proclaim the passage of this Constitution, declaring it to be a major step in that direction.” Dr. William F. Cashmore, a Helena physician, and Stanley C. Burger, a Farm Bureau representative, then filed a challenge in the Montana Supreme Court.

My article tells the story of what happened next. After hearing oral argument and accepting legal briefs, the five justices voted in chambers. The result was 3-2 against the constitution.

But one of the justices later changed his vote, so the court ultimately upheld the constitution, 3-2. On rehearing, the majority claimed the constitution actually had received the necessary majority—but its mathematical reasoning was demonstrably flawed.

Questions remain. Why was no recount held? Would a recount have shown that the constitution won? Which justice flipped his vote and why?

From second-hand accounts, Professor Crowley and Chuck Johnson believed Justice John C. Harrison switched due to improper pressure from U.S. Senator Lee Metcalf. Possibly. But close examination of the justices’ opinions suggests the vote-flipper may have been Justice Frank I. Haswell.

It is now far too late to challenge the constitution’s legality. However, Montanans deserve a constitution that is not under a legal cloud. A state constitutional convention could propose such a document.