Why does Montana elect its Supreme Court Clerk?
The position used to be a relatively common elected office, but Montana is the only state to still have it
On Tuesday, voters in Montana will cast ballots in their state’s primary election, picking the Democratic and Republican nominees for statewide, legislative, and local offices, and narrowing down the field of candidates for nonpartisan judicial elections. With the presidential primaries all but formally over—and a brutal Republican primary for the U.S. Senate averted—the attention has focused on the remaining contests, like for the state supreme court.
One of the most competitive races, however, is also for one of the oddest (and most unique) positions: Clerk of the Montana Supreme Court. There’s a contested Republican primary featuring incumbent Clerk Bowen Greenwood and State Senate President Jason Ellsworth, and there’s certainly plenty to say about that race. It certainly seems plausible that Ellsworth, who has faced domestic abuse allegations, was pushed to run for Clerk to get him out of legislative Republicans’ hair. Moreover, given the office’s largely ministerial responsibilities, an intra-party challenge to an uncontroversial incumbent by a high-ranking member of the legislature is curious.
Yet the race itself raises some questions that have nothing to do with the candidates. Why is this position elected? What role are voters meant to play in selecting someone whose primary job is to keep the records of the state supreme court? In my first post for Guaranteed Republics in a while, let’s walk through the strange world of elected supreme court clerks.
Today, Montana is the only state with an elected state supreme court clerk. That fact may not, itself, be terribly surprising, but the position used to be a lot more common—and as such, it might be more accurate to say that Montana is the only remaining state that still elects a supreme court clerk.
Throughout American history, 13 states in total have ever elected the clerk for their state’s highest court. The position was most common from the mid-1800s through the mid-1900s, reaching a peak of 12 states (representing more than a quarter of all states at the time) in 1911.
Outside of those states, two states elected clerks for other courts. Arkansas elected the Clerk of the Pulaski County Chancery Court from 1874 to 1887 and Mississippi had an elected clerk for its Superior Court of Chancery from 1848 to 1857 (though later, it would also have an elected supreme court clerk). And, in two states, voters also elected a reporter of supreme court decisions alongside their supreme court clerk: Indiana, from 1853 to 1983, and Iowa, from 1867 to 1915.
There’s also one other weird variation to note: from 1849 to 1903, Illinois elected three supreme court clerks—one for each of the state’s so-called northern, central, and southern “grand divisions.” In 1897, the legislature consolidated the three offices into just one.
But why did any state do this?
For much of early American history, there were relatively few statewide elections to speak of. A good number of states didn’t even have directly elected governors until the mid-1800s, and there were few other state-level elected offices in existence at this time. (The U.S. Senate was still indirectly elected at this point, too.) But the during the Jacksonian era, there was pressure to democratize state governments and to elect more positions. So as states rewrote their constitutions, they created a large number of elected offices—either by converting existing appointed positions into elected ones, or by creating altogether new positions.
The deluge of new positions included a lot of the usual suspects—the attorney general, secretary of state, treasurer, auditor, superintendent of public instruction, and so on—but also a lot of weirder, seemingly more random ones, like state supreme court clerks and state printers. The logic behind expanding the number of elected offices was twofold: First, voters should be electing important offices that had significant responsibilities. But second, officeholders that were responsible for entering into contracts on behalf of the state and spending money should also face public scrutiny—so that corrupt officeholders who enriched themselves or their cronies with no-bid or overpriced contracts could be removed from office.
Take Indiana, for example. Prior to Indiana’s 1850-51 constitutional convention, the state had just two positions elected statewide—its Governor and Lieutenant Governor. After the convention, it walked away with many more: the Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Clerk of the Supreme Court, and Reporter of the Decisions of the Supreme Court, as well as an elected Supreme Court. (It could very well have ended up with more—delegates rejected proposals to have a statewide elected Librarian and Sheriff of the Supreme Court.)
At Indiana’s convention, there was a small amount of debate1 as to the merit of having an elected Supreme Court Clerk. Delegate John Pettit argued in favor of doing so, observing that the delegates “have taken a start in the right direction” by providing “that the people shall elect all officers,” and he “hope[d] we will carry it out as far as possible.” He explained that “[t]he office of clerk of the Supreme Court is a very important and lucrative one, and I hope that the clerk, like the judges, may be put before the people to be elected.”
In response, Delegate William P. Dunn argued:
All the people desire is, that a competent man should be selected to fill that office. The Judges of the court know what qualifications are necessary to make a good Clerk, and they are personally interested in securing the services of such an officer. I can see no reason why we may not with as much propriety declare that the Speaker and Clerks of the House of Representatives, and the Secretaries of the Senate, shall be elected by the people, as that the Clerk of the Supreme Court shall be so elected. We are making so many officers elected by the voters of the whole State, that the ballots at some of our general elections will be near a yard long. If you require that the Clerk of the Supreme Court shall be elected by the people, the result will be that a party caucus in this city will select the officer. The people will take no interest in the matter, and will generally vote for the nominee of their respective parties.
Several other delegates raised similar arguments, but in the end, the delegates voted to make the Clerk of the Supreme Court elected.2
Indiana wasn’t alone in establishing its supreme court clerk as a constitutional office. California, Illinois, Kentucky, Maryland, Minnesota, Mississippi, Montana, Nevada, New York, and Oklahoma did so, too. However, beginning in the early 1900s, reformers began questioning the need for so many elected offices—and argued that voters, overwhelmed with the number of positions on the ballot, simply picked the candidate nominated by their preferred party. These reformers, many of whom were affiliated with the nationwide short ballot movement, were successful in persuading state legislatures, governors, and voters across the country of the need to trim the number of elected offices.
Where elected positions were established statutorily, converting them into appointed positions—or abolishing them—was easy enough to do. But for constitutional offices, there were more hurdles.3 Yet once a constitutional amendment appeared on the ballot, it usually had no difficulty passing.4 Though voters have regularly rejected efforts to eliminate elected offices, they apparently had no specific attachment to electing the clerk of the supreme court. Some of these amendments were individual questions—in that they only asked voters if they wanted to keep or abolish the office.5 Other amendments were part of broader rewrites to the entire state constitution, or to the judicial branch article.
So what happened in Montana? The office was created in the 1889 constitution and given a six-year term—longer than for any state office other than the Supreme Court. At the state’s constitution convention from 1971 to 1972, the delegates debated whether to continue the office or not. The debates were largely repetitive of every recorded debate on the subject. Advocates of electing the clerk emphasized that it was an important office, and further noted that electing the clerk did not detract in any way from the smooth operation of the court system; opponents argued that the position was a clerical office best selected by the supreme court itself, not voters.
In the end, the convention opted for a neutral solution: it simply eliminated all reference to the office in the constitution. The convention’s judiciary committee was unable to reach a consensus on whether to have the office elected or appointed, and split 5-4 on the question. After the convention delegates debated how to select the office for some time, Delegate Bruce Brown proposed an amendment to eliminate the section referring to the clerk. He explained:
It is my opinion that this is a legislative matter. The more offices we lock into the Constitution—we do not give the people more freedom to elect their public officials, we lock future generations into the officials we think they should have. Therefore, to keep flexibility, this type of legislation should be kept out of the Constitution.
The convention approved the amendment.6 After the constitution was ratified by voters in 1972, the 1973 legislature passed legislation to continue the office.
And so, more than fifty years later, the office remains. Because of the six-year term, the election for Clerk of the Supreme Court aligns with elections for the state’s other offices, like Governor, just half of the time—and usually with very little attention. In 2018, for example, as Democrat Jon Tester was narrowly winning re-election to the U.S. Senate in an expensive, competitive contest, Republicans easily won the office for the first time since 1982, yet few tuned in to the race.
This year, with contested primaries on both sides, and the incumbent facing an intra-party challenge from the State Senate President, perhaps more attention will focus on the election—even if to ask why the office is still elected.
I quote from convention records with the significant caveat that, as Molly Brady has observed, the records of proceedings are flawed.
In 1970, Indiana voters ratified a complete revision of the state constitution’s judiciary article, which had the practical effect of eliminating the Clerk of the Supreme Court as a constitutional office and allowing the legislature to abolish it. The legislature didn’t do so until 2004, and the final officeholder—David C. Lewis, appointed in 2003—left office in 2006.
For example, many state constitutions require that any amendment receive supermajority support from the legislature before it can be placed on the ballot; many others require that amendments be approved by two successive legislatures.
Minnesotans technically rejected such an amendment in 1916, but the rejection only occurred because too many voters did not vote on the question at all. That same year, 70% of Oklahomans rejected a measure that cut the Clerk’s salary and made the office appointed, but the rejection took place at a lower-turnout August election at which voters rejected every amendment that was put to them.
In 1911, California voters approved such an amendment with 61% of the vote. 62% of Marylanders in 1940 and 58% of Mississippians in 1976 did the same.
In hindsight, the decision to simply punt the decision to the legislature was unsurprising. The convention essentially did the same thing with the state treasurer (which the legislature opted to not continue) and decided against adding the statutory railroad commission, a statewide elected board, into the constitution (and the legislature subsequently converted it into a board elected by district).