Montana Supreme Court
Credit: John S. Adams / MTFP

The Montana Supreme Court last week ruled that a ballot initiative seeking to change how its justices are elected will not go before voters this November, upholding a previous ruling by a state district court.

The decision will keep House Bill 325, a legislative referendum that would ask voters whether to establish Supreme Court elections by districts beginning in 2023, from reaching the ballot. The court held that a previous ruling overturning a nearly identical initiative a decade earlier established that the Montana Constitution gives all voters across the state the right to elect the court’s justices. 

“The Montana Constitution, both as originally approved in 1972 and as amended in 1992, clearly entrusts the people of Montana with the election of the members of their Supreme Court,” Chief Justice Mike McGrath wrote on behalf of the 5-2 majority. “Nothing in the text, history, or purpose of the Montana Constitution, or our subsequent interpretations of it, authorizes the drastic diminishment of this right entailed by HB 325.”

HB 325 was one of several bills Republicans passed in the 2021 session that would reshape the state’s judiciary and judicial elections process, measures responding to longstanding concern in factions of the GOP about the court’s ostensible liberal bias. Several of the bills, HB 325 included, have faced constitutional challenges.


A court divided?

House Bill 325 would ask voters to approve election of state Supreme Court justices by districts, rather than statewide. Supporters say the change would encourage better representation on the state’s most powerful bench. Critics call it ‘judicial gerrymandering.’

If the measure had passed, it would have divided the state into seven Supreme Court districts, with would-be justices selecting a specific district in which to run. Montana Supreme Court justices have been chosen in statewide elections since statehood.

Supporters of the ballot referral argued the change would create a high court “more aligned” with the electorate. Democrats and other opponents said the bill smacked of an attempt to gerrymander the Supreme Court to be more friendly to Republican interests. 

Litigation over HB 325 began with an attempt by the state to disqualify each of the justices from ruling on the case, arguing that the measure presented a conflict of interest for sitting justices because it would affect how they can run for re-election. The justices declined to recuse themselves, citing the “rule of necessity” — in other words, concluding that the requested recusal standard would leave no judges available to hear the case because any Montana judge could eventually be a candidate for the state supreme court. 

In a statement last week, Attorney General Austin Knudsen called the ruling “shameful and self-serving.”

“In order to protect their own jobs, Justices Gustafson, McGrath, McKinnon, Sandefur, and Shea deprived every Montanan of their right to decide how we elect Supreme Court justices,” Knudsen wrote.

Much of the court’s ruling hinged on precedent set in Reichert v. State, a 2012 decision that invalidated an essentially identical referral from reaching the ballot. The Reichert court held that the state Constitution’s framers intended for statewide elections of Supreme Court justices, especially given that the court’s purview is statewide. 

The only distinction between that referral and the new one is that the former had required justices to reside in the district where they sought election, a provision not included in HB 325. Secretary of State Christi Jacobsen, as the defendant in this year’s case, argued that the Reichert case was improperly decided, and that the residency distinction was enough of a departure from the prior case that the Reichert precedent shouldn’t apply. Jacobsen’s lawyers also argued that it wasn’t appropriate for the Court to invalidate the ballot question before it goes before voters in November.

Laws on Trial Montana Free Press

But the high court ruled last week both that Reichert applies and that the court is within its rights to decide on the initiative’s facial constitutionality even before voters have a chance to consider it. 

“To effectively preserve and protect the rights Montanans have reserved to themselves to approve and reject by referendum legislative acts and proposed constitutional amendments, pre-election judicial review is rare,” McGrath wrote. “However, such deference and restraint does not apply where the challenged measure is facially unconstitutional. In such instances, the courts have a duty to exercise jurisdiction and declare the measure invalid.” 

Justices Laurie McKinnon, Jim Shea, Dirk Sandefur and Ingrid Gustafson concurred with McGrath. In a dissent, Justices Beth Baker and Jim Rice did not address whether they believed HB 325 was constitutional, but said they believed the majority overstepped in blocking the initiative before voters could consider it. 

Lawyers for Jacobsen can choose to appeal the ruling to a federal court. A spokesperson for Attorney General Austin Knudsen said Monday the state is considering its options.

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Raised in Arizona, Arren is no stranger to the issues impacting Western states, having a keen interest in the politics of land, transportation and housing. Prior to moving to Montana, Arren was a statehouse reporter for the Arizona Capitol Times and covered agricultural and trade policy for Politico in Washington, D.C. In Montana, he has carved out a niche in shoe-leather heavy muckraking based on public documents and deep sourcing that keeps elected officials uncomfortable and the public better informed.