New Montana Supreme Court decision protects citizen initiatives

In 2023, the Montana legislature adopted Senate Bill 93, which restricted the citizen initiative process. On October 6, 2026, the Montana Supreme Court unanimously ruled that much of SB 93 was unconstitutional. The case was Ellingson v. Montana.

The citizen initiative process is a procedure whereby the people may amend the state constitution or adopt laws without the concurrence of the legislature. A proposal’s advocates circulate a formal petition, and if enough people within certain geographic districts sign it, the measure goes on the ballot for the electorate to accept or reject.

The initiative process first came to Montana in 1906, after nearly 85 percent of the electorate voted for a constitutional amendment adopting it. With some changes, the 1972 constitution continued it.

In Montana, the initiative process, like ordinary legislation, sometimes has been abused. The sponsors of SB 93 were trying to correct some of this abuse. Still, on purely constitutional grounds, the court’s decision in Ellingson v. Montana was correct.

Justice Beth Baker wrote the court’s principal opinion. Presumably Chief Justice Cory Swanson selected her for this job—which was a good call, since Baker is one of the court’s best legal technicians.

As Justice Baker acknowledged, all political power comes from the people. A constitution is a device by which the people delegate defined spheres of authority to government officials. In adopting Montana’s constitution, the people granted the legislature power to make laws. But they also specifically reserved the right to legislate directly through voter initiatives.

The state constitution lists some exceptions to the people’s initiative power. An initiative may not appropriate money. It may adopt only a general law rather than a law applying only to certain localities or persons. Petitions must be structured in a specific way and must meet specified signature thresholds and timing deadlines. The legislature may decide whether the vote is held at a general or special election.

A long-established legal rule says that when you have a list of exceptions like this, then you presume that the general rule otherwise applies. In other words, the legislature has the specific powers the constitution gives it, but may not otherwise infringe the people’s power to make laws.

And in this case, this presumption is particularly strong, because the 1889 constitution (as amended) contained a provision granting the legislature additional power over the initiative process, which the 1972 constitution deleted.

Thus, as Justice Baker’s opinion recognized, any remaining authority the legislature may have over initiatives must be used only to facilitate them, not to obstruct them.

However, SB 93 obstructed initiatives in several ways. It required the initiative petition to include a legislative committee’s endorsement or opposition. It required sponsors to either pay a $3,700 fee or obtain a hardship exemption. It banned initiatives substantially similar to those rejected within the previous four years.

Those limits may be good ideas, but the bill that enacted them was unconstitutional because it obstructed the process rather than facilitated it.

Unfortunately, the court’s opinion suffered from a few defects as well. It acknowledged that the state constitution “obtains life only by the direct power of the people,” but then erroneously stated that it should be interpreted by the views of its drafters instead of the views of the voters who ratified it.

The opinion also contradicted itself. It stated that (1) laws regulating initiatives must be upheld unless proved unconstitutional beyond a reasonable doubt, but (2) this rule did not apply to laws pertaining to initiatives! It further stated that (1) rules clear on their face must be applied as written, but (2) such rules were still subject to interpretation based on outside evidence.

Unfortunately, as I demonstrated in studies conducted in 2012 and 2024, such contradictions are common in Montana Supreme Court decisions.

Finally, while the court properly limited the power of the legislature to throttle initiatives, it failed to acknowledge its own unjustified and repeated interference with the process.

Among the reasons for voting for a new state constitutional convention in 2030 is that it will allow Montanans to address initiative abuse, contradictory rules, and other issues.