Montana Supreme Court blocks AG's rewrite of nonpartisan court elections measure

(CN) — Montana’s attorney general took too much liberty editing ballot language for an initiative pushing for nonpartisan court elections, according to a new ruling from the state Supreme Court.

Constitutional Initiative 132 would create a new section of the constitution to mandate that court elections stay free from political affiliations. The text would read: “Section 12. Nonpartisan Judicial Elections. Judicial elections shall remain nonpartisan.”

It was submitted by Montanans for Nonpartisan Courts with proposed ballot language stating that the initiative “amends the Montana Constitution to require that judicial elections remain nonpartisan.”

Attorney General Austin Knudsen revised the statement to instead say the initiative, if passed, “amends Article VII of the Montana Constitution to create a new Section 12 that mandates all judicial elections be nonpartisan. A nonpartisan election prohibits labeling candidates on the ballot according to the political party the candidate aligns with including labels like independent.”

Montanans for Nonpartisan Courts challenged that revision and accused Knudsen of altering the ballot language after his office determined it met the state’s legal requirements in an effort to sabotage the initiative.

The state Supreme Court agreed it violated state code requiring that a ballot measure’s statement of purpose express the true and impartial explanation in plain language and not be written in a way that prejudices the issue.

The court found Knudsen’s wording “does not fairly state to the voters what is proposed within” Constitutional Initiative 132, Justice James Shea wrote on behalf of the majority in the Tuesday ruling.

Knudsen’s proposed revision implies that all judicial candidates are aligned with a political party that they are not allowed to disclose.

“That would mislead voters and prevent them from casting an intelligent and informed ballot,” Shea wrote.

It also implies that the requirement that judicial elections in the state be nonpartisan would change the status quo, which is not true.

The court determined Montanans for Nonpartisan Courts’ statement was compliant.

Montanans for Nonpartisan Courts celebrated the ruling.

“We are grateful for the Supreme Court’s prompt ruling,” Caitie Butler, spokesperson for Montanans for Nonpartisan Courts, said in an emailed statement. “Our goal from the beginning was to ensure [Constitutional Initiative 132] has a clear, unbiased ballot summary so that voters can fairly vote on nonpartisan judicial elections in 2026."

In a second ruling released the same day, the court was less favorable to a challenge from the group.

Montanans for Nonpartisan Courts proposed Ballot Issue 6 over the summer, and in October, Knudsen found it to be legally insufficient.

Ballot Issue 6 would amend the Montana Constitution to add a sentence stating judicial elections shall remain nonpartisan and one stating that “any new court created after this amendment becomes effective must consist of judges elected on a nonpartisan basis.”

Knudsen rejected the proposed initiative based on the determination that it violated the separate-vote requirement of the constitution. The Montana Supreme Court agreed.

Under the separate vote requirement of the Montana Constitution, proposed constitutional amendments must be presented as separate issues that can be voted on separately.

Knudsen argued the choice to require judicial elections to be nonpartisan is separate from the choice to require judges to be elected rather than appointed. Montanans for Nonpartisan Elections argued the proposed ballot issue is a “single, comprehensive policy to secure Montana’s system of nonpartisan judicial elections now and into the future.”

The Supreme Court noted the objective of the requirement is partially to avoid voter confusion and make sure the effects of the proposals are readily understandable.

“We do not believe voters will readily understand that [Ballot Issue 6] may cause some courts to have appointed judges while other courts with the same scope of jurisdiction will have elected judges solely due to the date of the creation of the court,” Shea wrote on behalf of the court. “Thus [Ballot Issue 6] fails to meet one of the objectives of the separate-vote requirement.”

Montana currently has certain courts that appoint judges, like the Water Court, Workers’ Compensation Court and small claims courts.

“It is undisputed that [Ballot Issue 6], if enacted, would preclude the legislature from creating any new court which is filled by appointment,” Shea wrote.

Montanans for Nonpartisan Courts argued there wasn’t a real argument that the ballot issue forces voters to weigh unrelated policies that wouldn’t gain public support, but the Montana Supreme Court didn’t see it that way.

“A voter may prefer that judges be appointed where permitted by law while concurrently preferring that, if judges are required by law to be elected, such election should occur by a nonpartisan ballot,” Shea wrote.

Neither the Montana Attorney General’s Office nor Montanans for Nonpartisan Courts provided a comment before press time.