Montana Supreme Court overturns AG on ballot initiative to defend voter-made lawmaking

A ballot initiative meant to bar lawmakers from creating hurdles for citizens who try to enact laws by ballot initiatives may proceed over objections from the state attorney general, the Montana Supreme Court ruled on Friday.

In a 5-2 decision, the high court overturned Montana Attorney General Austin Knudsen's finding from late last year that the initiative, identified as Ballot Issue 8, was legally insufficient because it cobbled together too many unrelated items for Montanans to cast a single, educated vote.

This cycle alone, the Montana Supreme Court has struck down two proposed ballot initiatives for this reason, often referred to as "logrolling"; one proposal dealt in corporate spending in elections, while another sought to prevent current and future courts from holding partisan campaigns for judges.

The ballot initiative at hand, the court's majority wrote Friday, did not fail as the others had. Rather, BI-8's provisions operate together and protect a single constitutional right, wrote Justice Katherine Bidegaray, who authored the opinion.

"BI-8 recognizes a fundamental right to exercise powers of initiative and referendum and enumerates components of that right, including procedural guarantees for proposing, qualifying and submitting ballot issues," Bidegaray wrote. "The creation of this new provision constitutes one amendment. The question is whether the remaining provisions amount to additional, separate amendments that are not closely related. They do not."

The ballot initiative campaign is being run by a group called Montanans Decide. Spokesperson SK Rossi lauded the ruling in a statement on Monday.

"We hope this puts an end to Attorney General Austin Knudsen's attempts to use his powers to stop ballot issues he doesn't like," Rossi said. "Voters, not politicians, should decide which issues reach the ballot. The state constitution reserves that right for the people of Montana."

The attorney general's office likewise contended that the ballot initiative improperly usurped the power of several government offices, from the judiciary to the Legislature.

Here, Chief Justice Cory Swanson agreed, writing in a dissent from the majority that BI-8 trod on the judicial branch's power. Two of the provisions in the proposal's main section determine timelines for legal challenge to future ballot initiatives, he noted, creating a scenario where "the court has no control over how long it may take the various disputes to reach the court, no control over how complex and contentious the issues may be, and no control over the susceptibility of the challenges to resolution."

These deadlines also curtailed individuals' legal right to challenge these ballot initiatives, Swanson argued.

Seeing these as two distinct effects of the initiative, Swanson wrote that BI-8 should have failed on the logrolling issue.

The Montana Attorney General's Office concurred with Swanson's dissent.

"Today's decision only further muddies the courts' jurisprudence on ballot issue questions," spokesperson Chase Scheuer said in an emailed statement. "This initiative would violate the separate vote requirement by amending multiple parts of the Montana Constitution, but the court contradicted its prior rulings."

The court's majority in this case was unpersuaded by Swanson's argument, however, writing that constitutional amendments frequently establish parameters that affect judicial administration and litigant rights.

"That such provisions may interact with existing guarantees of access to courts or due process does not mean they constitution separate constitutional subjects," Bidegaray wrote. "To hold otherwise would mean that any constitutional amendment affecting adjudicative procedures necessarily amends every related constitutional protection, an approach we have declined to adopt."

The court's majority ordered that Knudsen's office prepare and forward ballot statements for BI-8 to the Montana Secretary of State's Office within five days of the order.

This story has been updated with comment from the Montanans Decide campaign.