SupCo reverses AG Knudsen on powers-of-initiative ballot measure

A ballot initiative protecting Montanans’ right to petition to enact laws can proceed, contrary to a finding from Attorney General Austin Knudsen, the Montana Supreme Court said.

In a recent 5-2 opinion, the state Supreme Court said the ideas offered in Ballot Initiative 8 operate together, are closely related and therefore do not unconstitutionally “log roll” a couple of concepts into one.

The measure aims to protect the people’s right to initiative and referendum from undue burdens by amending the Montana Constitution. It aims to ensure an “impartial, predictable, transparent and expeditious process,” and one without use of government resources to support or oppose the initiative.

Chief Justice Cory Swanson and Justice Jim Rice dissented in favor of Knudsen’s argument, finding the initiative contains two distinct constitutional questions — one, to ensure an expeditious ballot process, and two, to place a restriction on government.

However, the majority found that the limit placed on government resources to support or oppose an initiative functions within the protection for the initiative and referendum process, and it is legal.

The opinion also said that just because the initiative would set up timelines for initiatives doesn’t mean it’s taking away any authority vested in the courts, contrary to Knudsen’s argument.

Montanans Decide, a plaintiff in the case against Knudsen, is running the effort to protect the state’s citizen initiative process, which it argues has “come under sustained attack by politicians” in recent years.

In a statement, Montanans Decide spokesperson SK Rossi said the group is celebrating the ruling, a “refusal to allow political interference in the ballot initiative process.

“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. Voters, not politicians, should decide which issues reach the ballot. The state Constitution reserves that right for the people of Montana.”

Knudsen has disputed numerous proposed ballot initiatives for the 2026 election.

In December, the Montana Supreme Court overturned two of his decisions, both on nonpartisan judges.

However, the court also found a proposed initiative to ban corporations from spending on elections violated the “single subject” rule, as Knudsen determined. (The Transparent Election Initiative since refiled the initiative.)

In the recent case, the justices said the provisions work together “to define and safeguard a single constitutional right,” the right to propose initiatives and referendums.

Written by Justice Katherine Bidegaray, the opinion reversed Knudsen’s finding the initiative was legally insufficient, and it ordered him to prepare a ballot statement to send to the Montana Secretary of State within five days.

The justices also found Knudsen lacked the authority to attach a fiscal statement to the initiative because the state estimated the cost to be zero. They said assuming potential future litigation wasn’t proper, and the statement was invalid.

In their dissents, Rice and Swanson sided with the AG in part and said the initiative has two separate ideas — at least two, according to Swanson.

Swanson said the deadlines the initiative imposes to complete court challenges end up being a curtailment to a future ballot opponent’s right to access the courts.

“Perhaps it may be a constitutionally permissible limitation, but it is a new limitation nonetheless, and therefore an additional amendment beyond the rights of the proponents to enjoy the initiative power,” Swanson said.

The Attorney General’s Office did not respond by press time to an email for comment about how it would proceed.