Blair Miller

(Daily Montanan) More than 10 months after Gov. Greg Gianforte vetoed a popular bill to redistribute Montana’s marijuana revenue, kicking off months of litigation surrounding the veto and legislative process, the poll in which lawmakers will be able to override the veto is headed toward their mailboxes.

A packet containing the override poll and a cover letter from Secretary of State Christi Jacobsen was delivered Tuesday afternoon to the state’s print and mail services, according to Secretary of State’s Office spokesperson Richie Melby, who provided a copy of the cover letter.

In the letter, Jacobsen outlines the contention surrounding the poll, which the Executive Branch and some Republican lawmakers have gone to lengths to stop, claiming constitutional issues surrounding what constitutes the Legislature being “in session” and how the veto process works need to be resolved first.

“To my knowledge, the Secretary of State has never polled members of the legislature on a bill returned to the legislative branch during session, before or after statehood, until now,” Jacobsen wrote. “Nor has the Secretary of State ever conducted a veto poll prior to the receipt of the bill. Finally, having the legitimacy of the poll itself weighed and potentially invalidated at any time is certainly unusual.”

Jacobsen wrote that sending out the override poll for Senate Bill 442 would comply with the orders from Lewis and Clark County District Court and the Montana Supreme Court to do so, lest she and the governor, who were sued when they did not send an override poll out last year, be in contempt of court.

She also acknowledged the letter 27 Republican senators sent to her and Gianforte on Monday, saying she sided with some of their beliefs.

The senators said they believe the courts’ ordering the override poll to be sent out by the end of Tuesday was unconstitutional, arguing that they are still in possession of the bill and that the governor, per the law, needs to possess it so he can send it to the Secretary of State to conduct the override poll. Senate President Jason Ellsworth, R-Hamilton, said Monday he had the bill, and a spokesperson for the Senate Republicans said Ellsworth had no intention of giving it to the governor.

Gianforte also sent a letter to Jacobsen with a copy of the veto message on Monday, saying he wanted to comply with the courts’ orders but did not want to violate the separation of powers by going to get it from the Legislature.

“Our office share many of your concerns and argued the same before the District Court. I understand your frustration. The Secretary of State’s Office followed Montana law for every veto during the 2023 legislature to the letter of the law. The Secretary of State should not be in this case. I look forward to the state’s supreme judicial body weighing in on this significant case.”

The letter is being sent via paper mail; it says lawmakers must return the poll ballot by 5 p.m. on April 18 to be counted. Two-thirds of the Legislature will have to approve of the veto override for it to succeed. One-hundred thirty out of 150 lawmakers voted for the bill on final passage during last year’s session.

But in recent court filings and letters, the governor and some Republicans have said that the broad bipartisan support that Sen. Mike Lang, R-Malta, got from legislators for his bill last session may be missing some Republican support more than 10 months later.

Spokespersons for legislative Democrats and Senate Republicans declined to comment on the start of the override process Tuesday. A spokesperson for Gianforte did not respond to a request for comment.

It’s likely there will be lots of vote-whipping over the next 30 days by both lawmakers and by the plaintiffs who sued Gianforte and Jacobsen last year when the override poll never happened. The plaintiffs – the Montana Association of Counties, Wild Montana, and the Montana Wildlife Federation – sued and alleged the governor had utilized a loophole in the law in order to block an override poll from ever happening.

The governor argued legislators could have taken a vote during the session or could call themselves into a special session to do so. The dispute centers around when technically the legislature had adjourned in relation to the veto and the different procedures for overrides based on that status.

After hearing arguments on the matter in December, District Court Judge Mike Menahan sided with the plaintiffs in a January order saying lawmakers must have a chance to override the SB 442 veto and ordering an override poll be sent out.

Attorneys for Gianforte and Jacobsen sought a stay of the decision but were denied, then filed an appeal to the Supreme Court, as well as another ask for a pause on Menahan’s order pending the full appeal.

But on Friday, the Supreme Court denied their request for the pause, saying that the override poll can and must still go out by the end of the day Tuesday while the court considers the appeal arguments moving forward.

“Although the Legislature must vote on whether to override SB 442, the outcome of the underlying appeal will determine whether the District Court’s ruling was correct, and therefore whether the governor’s veto ultimately stands over the Legislature’s vote,” the justices wrote in Friday’s order. “This Court can address the underlying issue in due course regardless of whether we issue a stay.”

The bill drew the support it did in the 2023 session because a diverse array of interest groups ranging from oil and gas associations to conservation groups got together to support Lang’s bill, primarily because it would redistribute millions to county road maintenance and fund a Habitat Legacy conservation program to preserve and acquire more public lands.

Lawmakers successfully overrode four of Gianforte’s vetoes in polls after the session, including House Bill 868, which contained the appropriation mechanism to send the tax revenue to the new programs. Gianforte had cited a lack of an appropriation for SB 442 in his veto letter and the funding of county roads from state funding as reasons for the veto.

Noah Marion, the political and state policy director for Wild Montana, said in a statement the plaintiffs are happy the override poll was sent out.

“At this time, we’re focused on trying to ensure that SB 442, a bill that helps every Montanan, gets a fair shot at becoming law,” Marion said. “SB 442 had the support of over 100 organizations representing tens of thousands of Montanans and 130 of 150 legislators during the session. That kind of collaboration deserves to be honored and SB 442 deserves to become law.”