Montana Supreme Court strikes down GOP restrictions on citizen ballot initiatives

The Montana Supreme Court unanimously struck down a series of Republican-backed restrictions on citizen-led ballot initiatives Tuesday, invalidating key provisions of a 2023 law that imposed an exorbitant filing fee, barred voters from reconsidering defeated measures for four years and gave lawmakers a formal role in reviewing proposed initiatives before supporters could gather signatures.

In a defense of direct democracy, the state’s highest court ruled that the Montana Legislature can adopt neutral rules to administer the initiative process, but it cannot use that authority to burden the people’s independent constitutional power to make laws themselves.

“The Constitution and its history demonstrate that the path for the people’s lawmaking power was intended to have as few obstacles as possible before reaching the ballot and eventually becoming law,” Justice Beth Baker wrote for the court. “The path should be direct.”

The decision is a major victory for citizen-led democracy in Montana, where the state constitution expressly reserves the powers of initiative and referendum to the people. It also delivers a significant rebuke to restrictions enacted by the Republican-controlled Legislature as part of Senate Bill 93 in 2023.

The measure was introduced by state Sen. Mike Cuffe (R) and ultimately passed the Legislature mostly along party lines before Republican Gov. Greg Gianforte signed it in May 2023. 

A group of Montana residents sued shortly afterward, arguing that the law erected unconstitutional barriers between voters and the initiative process. A district court agreed on four of their claims, and the state appealed three of those rulings to the Montana Supreme Court.

The Supreme Court affirmed the lower court across the board.

At issue was a basic question about who holds legislative power in Montana. The state argued that lawmakers have authority to regulate the mechanics of citizen initiatives. The court agreed — but only up to a point.

The Legislature can establish rules needed to make the system function, such as procedures for filing petitions, checking signatures and administering elections. But it cannot transform that administrative authority into control over whether or how citizens exercise a lawmaking power guaranteed to them by the state constitution.

The court held that when the Legislature substantially burdens that power or inserts its own policy preferences into the process, it crosses a constitutional line. It also made clear that doubts about restrictions on initiatives should be resolved in favor of the people.

The justices first struck down a provision preventing proponents from submitting an initiative that is “substantially the same” as one voters rejected during the previous four years. The state claimed the rule would prevent voter fatigue and protect the initiative process from abuse.

The court found those justifications unsupported by the record. 

The state presented no evidence of voter fatigue caused by repeat initiatives and no evidence that previously defeated measures were routinely being resubmitted. More fundamentally, the Montana Constitution already specifies what subjects may and may not be addressed through initiatives. Lawmakers could not add another substantive restriction simply because they believed a proposal had returned to voters too soon.

The four-year ban “substantially burdens the initiative process,” the court held, because it blocks measures based on their content even after supporters satisfy the constitutionally required signature thresholds.

The court also invalidated a requirement that a legislative committee vote on a proposed initiative and have the result printed on the petition circulated to voters.

That provision effectively allowed lawmakers to place an official stamp of approval or disapproval on a citizen proposal before supporters had finished gathering signatures.

“It may not place its thumb on the scale by conditioning the circulation of petitions on the inclusion of its own body’s recommendation on the proposed measure,” Baker wrote. “The committee vote impairs the initiative power because it interferes with the people’s independent ability to make law, substantially burdens the people’s timeline for balloting an issue, and does so without final deference to the people.” 

The court separately struck down the law’s $3,700 nonrefundable filing fee for proposed statewide ballot measures. Although the law allowed people who could demonstrate financial hardship to seek a waiver, the justices held that the Montana Constitution does not make access to the initiative process contingent on the ability to pay such a charge.

The state claimed the fee would help discourage frivolous proposals and pay for government review of initiatives. But the court noted that the constitution already uses signature requirements to separate serious proposals from those lacking meaningful public support. 

The state’s suggestion that imposing a financial burden would prevent a “loud minority” from dominating the initiative process was not supported by the constitution, the court found.

A fourth provision, which expanded the attorney general’s definition of “legal sufficiency” to include review of an initiative’s substantive legality, was also voided. The state did not challenge that portion of the district court’s ruling on appeal. In other words, executive officials cannot use the pre-election review process to decide whether a proposed measure would ultimately be constitutional — a determination reserved for the judiciary. 

The constitutional portion of the ruling was unanimous.

Chief Justice Cory Swanson and Justices James Jeremiah Shea and Jim Rice joined Baker’s opinion in full. Justice Katherine Bidegaray, joined by Justices Ingrid Gustafson and Laurie McKinnon, agreed with the court’s constitutional rulings but dissented from the majority’s separate decision to uphold the denial of attorney fees to the plaintiffs.

The result leaves no ambiguity about the fate of the challenged restrictions.

“Though the Legislature may act under its duty to facilitate the initiative process and protect it from fraud and injustice, it may not impair the people’s independent power to make law,” Baker wrote. “We conclude that [the provisions] impair the people’s initiative power, are facially unconstitutional, and are declared void.”

For Montana voters, the ruling does more than eliminate several barriers enacted in 2023. It establishes a broader constitutional rule for future attempts to regulate direct democracy. 

State lawmakers may keep the initiative process orderly, but they cannot use that power to make citizen lawmaking more difficult, substitute their judgment for voters’ or elevate the Legislature’s power above the people who created it.