Lawmakers failed to override the veto of Senate Bill 442, according to polling results released Friday afternoon by the Secretary of State’s Office. Just 24 senators and 41 representatives voted in favor of overriding the veto, which needed the support of two-thirds of both chambers in order to pass, and 68 lawmakers did not cast a ballot.
Though the bill received approval from 130 of 150 lawmakers in the legislature, led by a Republican supermajority, upon its final passage last May, the result was not unexpected, as most Republicans revolted in March and said they would not participate in the poll because leadership believes the Montana Supreme Court wrongfully stepped in and ordered the poll to be conducted.
The Secretary of State’s Office said Friday it received ballot packets back in which lawmakers said they refused to participate, while other packets were not claimed by lawmakers at all.
But the result marks a disappointment for Sen. Mike Lang, R-Malta, who is retiring, and for counties and conservation groups who had helped craft the bill, draw widespread support across various industries in Montana, and then successfully challenged Gianforte’s veto of the measure in court to force the override poll.
The group — the Montana Association of Counties, Wild Montana, and the Montana Wildlife Federation — said after the results came down Friday that they would bring the bill back during the 2025 session and press lawmakers who supported the measure last year to support next year’s version.
“Despite broad bipartisan support in the 2023 Legislature, politics became the enemy of good, homegrown policy. Our coalition of hunters, anglers, ranchers, county commissioners, veterans and Montanans across the state remains united and committed to address these pressing issues,” Montana Wildlife Federation Executive Director Frank Szollosi said in a statement.
“We look forward to working with the multitude of legislators who have claimed they will eagerly support the policy in 2025, even if they refused to support the override,” said Noah Marion, the political and state policy director for Wild Montana. “The governor’s unconstitutional actions and the cynical political gamesmanship by his allies was the only chance he had to stand in the way of such a broadly supported bill, but the Court has been clear that cannot happen again.”
Lang did not respond to a phone call seeking comment Friday but voted in favor of the override.
The failure to override Gianforte’s veto means the current structure for where Montana’s marijuana revenue goes will stay the same as it has for the past two years. It also means that counties will not get hundreds of thousands of dollars to put toward county road construction and maintenance they would not have had otherwise — even in counties that don’t allow for recreational marijuana sales.
“I applaud the Montana Legislature for today rejecting radical judicial overreach, as the court sought to meddle in the legislative process,” Gianforte said in a statement. “Legislators also made clear that we should continue using marijuana revenue to fund addiction and recovery services, law enforcement, veterans, wildlife habitat, and state parks and trails, just as Montanans intended when they voted for recreational marijuana at the ballot box in 2020.”
Democratic leadership, who supported the bill last session, blamed Republicans for killing a bipartisan bill that many of them supported.
“Today, Republicans chose party loyalty over supporting veterans, public lands and rural roads. These issues unite Montanans across party lines, and SB 442—which deserves to be law today—showed that we are still able to do good work for Montana,” House Minority leader Kim Abbott, D-Helena, and Senate Minority Leader Pat Flowers, D-Belgrade, said in a joint statement. “Unfortunately, when it came time to stand with Montanans, too many Republicans buckled under pressure from the governor. These games are exactly what Montanans hate about politics.”
Supreme Court appeal continues
While the 2023 version of SB 442 is dead, the question of whether Gianforte’s veto was done properly or whether the override poll should have been sent out in the first place remains an ongoing issue, as Gianforte and Secretary of State Christi Jacobsen have both appealed the district court decision that said lawmakers have to have a way to override a governor’s veto to the Montana Supreme Court.
The court will have to decide what “in session” means when it comes to the legislature and whether one chamber being adjourned means the legislature is not technically “in session.”
That is because MACo and the two conservation groups sued last year when Gianforte vetoed the bill in the hour before the Senate adjourned, but said the timing and circumstances of the veto meant legislators had no opportunity to override it.
The groups said the veto message was not read aloud in the Senate before senators voted to end their work for the session last May 2 and that it was, according to statute, not done when the full legislature was still “in session.”
Republican leadership saw the quick adjournment, instigated by Senate Minority Leader Pat Flowers, D-Belgrade, but approved by a handful of Republicans supportive of SB 442, as an affront to their efforts to finish up work on a handful of other bills, and held onto the bill.
Gianforte and Jacobsen maintained that they did not have the bill and could not initiate the override poll process, and contended the legislature was indeed in session when the veto occurred because the House was still in session and the veto message was read aloud there.
But after hearing arguments from MACo, the conservation groups, and the government in December, Lewis and Clark County District Court Judge Mike Menahan sided with the groups, ordering the override poll to be sent out and saying Gianforte and Jacobsen had “interrupted the political process in an impermissible way.”
But Gianforte and Jacobsen appealed the decision and asked it be put on pause pending the appeal. That request was denied, and the Supreme Court on March 15 ordered Jacobsen to send the override poll out by the end of the day on March 19.
Republicans’ campaign to not participate appears effective
But the day before that was set to happen, 27 out of the 36 Republicans in the Senate sent a letter to the Supreme Court saying they believed the judicial branch was stepping on the toes of the legislative and executive branches by ordering the poll to proceed. House Republican leadership did the same.
“The legislature will not participate in an unconstitutional poll,” the Senate’s letter said.
They wrote a similar letter to Gianforte and Jacobsen. When Jacobsen eventually did send the poll out the next day, she included comments saying she agreed with some of their points.
“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,” she 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.”
The pressure campaign seems to have been effective. Just 12 House Republicans and nine Senate Republicans voted in favor of the override, and most did not vote at all. Only one Democrat, Sen. Kathy Kelker of Billings, voted against the override.
Senate President Jason Ellsworth, R-Hamilton, said in a statement the poll results are “exactly as expected.”
“A majority of the Senate told the judicial and executive branches that we would not recognize it as legitimate, and that’s exactly what happened,” he said in a written statement. “Constitutional processes must be followed regardless of the policy merits of any piece of legislation.”
Jason Rittal, the deputy director of the Montana Association of Counties, said Friday the circumstances surrounding what happened with the bill and the veto should leave Montanans concerned.
“The District Court serves as a critical check in our system, ensuring that loopholes resulting in unconstitutional actions are not allowed. By closing one of these loopholes, the court did its job and provided the Legislature their opportunity to override,” he said in a statement. “Some legislators do not agree with the court’s involvement and subsequent decision, which is their prerogative. However, SB 442 is good policy that would have benefitted Montana far and wide, and when the 2025 session arrives, county commissioners throughout the state will again rally in support of another SB 442.”
