Judge strikes down more portions of Montana ballot initiative law
Legislative committee review, four-year window laws found unconstitutional
By Blair Miller for the Daily Montanan
A district court judge last week struck down two more parts of law passed during the past two legislative sessions surrounding Montana ballot issues, saying that a provision that prohibits a ballot measure from being filed if a similar one was defeated within the past four years, and another that required a legislative committee to review each initiative are unconstitutional.
But Lewis and Clark County District Court Judge Mike Menahan upheld other parts of the ballot initiative process first passed in 2021 and tweaked by Senate Bill 93 in 2023, saying the 10 plaintiffs who sued the governor, attorney general and secretary of state had not proven they violated the constitution in their request for summary judgment.
The group of plaintiffs, which includes former Constitutional Convention delegates and former elected officials, sued over SB93 in May 2023, saying the additional requirements for proponents to try to get initiatives and constitutional amendments onto the ballot violated their constitutional rights.
In February, Menahan agreed that a $3,700 filing fee to propose an initiative was unconstitutional, saying it was a hindrance to Montanans’ ability to participate in the electoral process. He also found unconstitutional any review of an issue by the attorney general that goes beyond whether the proposal complies with statutory requirements.
But the plaintiffs continued to push to have other parts of the initiative review process changed by SB93 declared unconstitutional, and asked Menahan for summary judgment on the eight remaining portions of statute they challenged.
Two Parts of Law Struck Down
In his August 13 order, Menahan sided with the plaintiffs on two of those challenges and with the state on the remaining six.
He found the plaintiffs did have standing to challenge the part of the law that prohibits proponents from filing an initiative if it is “substantially the same” as a measure defeated by voters within the past four years.
“The world of politics is a changing world in which circumstances leading to the defeat of a ballot issue may change significantly between elections and voters may approve a previously unsuccessful ballot initiative,” Menahan wrote.
The state had argued the prohibition was in place to keep the same rejected measures from coming up for voters every couple of years, would make voter confusion less likely and would preserve state resources.
But Menahan sided with the plaintiffs, saying the portion of law violated Article III of the state Constitution that says people may enact laws by initiative “on all matters except appropriations of money and local or special laws.”
Menahan called the prohibition an “arbitrary hurdle” to Montanans participating in the initiative process, said voters could reject initiatives for various reasons because legal and political landscapes change, and noted that the legislature has no similar prohibition on bringing up the same bills in consecutive sessions even if they were previously rejected.
“Indeed, such a restriction would place an unconstitutional imitation on legislative power vested in the legislature under Article V, Section 1 of the Montana Constitution,” Menahan wrote.
Menahan also declared unconstitutional the requirement that interim legislative committees consider ballot initiatives before proponents can go out to gather signatures and give them a favorable or unfavorable vote whose results go on the face of the ballot petition.
Senate Republicans have fiercely defended that portion of law, now declared unconstitutional, this year. When the Montana Supreme Court found that the constitutional amendment initiative CI-128, which would put abortion protections into the state constitution, did not have to go through a legislative committee review because the attorney general never found the initiative legally sufficient – the court did – the Republicans on the Law and Justice Interim Committee decided to hold a hearing anyway despite the vote not going onto the petition.
Republicans on the Select Committee for Judicial Oversight and Review this week discussed drafting a committee bill that would require every initiative to go through a committee review and vote in an attempt to close what they see as a loophole after the Supreme Court’s decision.
But Menahan said the entire legislative review amounted to an unconstitutional and unnecessary hurdle in the petition process and said the legislature was needlessly involving itself in a process it has no rights to under the constitution.
“The initiative and referendum process established in the Montana Constitution is intentionally separate from the legislature’s lawmaking authority,” Menahan wrote. “By requiring ballot proponents to include the legislature’s position on the face of their petitions, legislators have unlawfully inserted themselves into the people’s independent lawmaking process.”
Menahan said he was “unconvinced” by the state’s argument that the committee vote helps the public better exercise their political rights by expressing their opinions on a proposal through public comment.
“The initiative process specifically eschews the idea the people need the legislature’s participation or approval to exercise their political rights,” Menahan wrote. “If the legislature wishes to express an opinion on the proposed initiatives, it may do so through the voter information pamphlet after the initiative proponents have collected the necessary signatures to certify an initiative for the ballot.”
Judge Denies Summary Judgment on Other Claims
Menahan sided with the state on the remaining issues. He found the secretary of state has the authority to reject proposed initiatives if the final text is substantively different than the original language submitted to legislative services or if the attorney general finds one is legally insufficient.
He also found that the “harm to business” statement the attorney general can put on a petition if it would do “significant material harm” to business interests in the state is constitutional because it does not interfere with a proponents’ ability to advocate for or collect signatures for the initiative or their ability to participate in the process, in general.
“If an individual ballot proponent wishes to challenge the imposition of a harm to business statement on a specific ballot petition, the issue may be examined in context,” Menahan wrote. “However, based on the information currently before the court, plaintiffs have not established the harm to business statement requirement is unconstitutional in all applications.”
He similarly found that the attorney general may put a fiscal impact statement on a petition because it must be position neutral, cannot advocate for or against the initiative, and does not interfere with proponents’ ability to advocate for the initiative. He said the same happens for bills during the legislative session, which he said provides “important, content neutral information to potential voters.”
Menahan also rejected plaintiffs’ contention that the constitution does not allow the attorney general to reject proposed initiative language because it is legally insufficient, saying the Montana Supreme Court has upheld that review process several times since it took effect in 1977, including during the fight earlier this year over CI-128.
“While the attorney general does not have the authority to make any determinations regarding ‘the substantive legality of the proposed issue if approved by voters,’ it is not unconstitutional for the attorney general to review a petition for compliance ‘with statutory and constitutional requirements governing submission of the proposed issue to the qualified electors,’” Menahan wrote in the order.
He sided with the state on the final two issues in contention as well. The plaintiffs had argued that the additional review steps in the process caused unnecessary delays in their efforts to participate in running a ballot initiative. Menahan wrote while he appreciates the argument about the difficulties proponents face, the legislature is allowed to create law that facilitates how the people’s power of initiative and referendum is exercised.
“A statute may facilitate the process without being strictly necessary to the process. For instance, a fiscal note is not necessary to the process, but it does facilitate the process by providing potential ballot petition signers with relevant, position neutral data,” Menahan said.
And he agreed that proponents of an initiative who want to employ paid signature gatherers can be charged a fee in order to do so under the constitution. The statute says that fee cannot be more than $100 “or an amount set by the secretary of state,” but the secretary currently charges $0.
Menahan said unlike the $3,700 fee, which he found unconstitutional, the fee for employing paid signature gatherers is not a hurdle in the participation process but rather a “standard administrative fee.”
“A reasonable filing fee in this context will not prevent initiative proponents from participating in the process because they have the option to engage volunteer signature gatherers, thus avoiding the registration requirement entirely, or seek a fee waiver by demonstrating financial hardship,” he wrote. “Provided the filing fee remains reasonably related to the cost of administering the registration system, the registration fee is not unconstitutional.”
Menahan’s order is not the final step in the case; the plaintiffs could try to take the issues that he has not granted summary judgment on to trial or could drop the remainder of the case. The state could also appeal the decisions that declared portions of the law unconstitutional.
Attorney John Meyer, who is representing the plaintiffs, said Thursday he was considering the next steps in the case and whether to move forward with the summary judgment orders as they stand or to appeal any of the decisions that went in the defendants’ favor.
The Governor’s Office and Attorney General’s Office did not respond Thursday afternoon to requests for comment on the judge’s order and questions about whether they planned to appeal.
Hindering the initiative process is simply trying to suppress the will of the people.