Montana high court election changes ruled unconstitutional

March 22, 2022 GMT

HELENA, Mont. (AP) — The Republican-controlled Legislature’s proposal to change the way Supreme Court justices are elected in Montana is unconstitutional and cannot appear on the November 2022 ballot, a state judge has ruled.

Montana’s Constitution requires Supreme Court justices to be elected on a statewide basis and a previous Montana Supreme Court ruling upheld that method, District Court Judge Peter Ohman said Monday.

His ruling came after a challenge to the 2021 bill passed by the Legislature for a referendum for voters to decide if they want to elect Supreme Court justices by district, rather than on a statewide basis.

Those challenging the bill in District Court in Butte-Silver Bow County included a Roman Catholic nun, a former court clerk and three former state lawmakers.

The complaint asked for Secretary of State Christi Jacobsen to be prohibited from placing the referendum on the ballot.


The bill that passed on party lines is similar to another that passed a decade earlier that also called for voters to decide whether to divide the state into seven districts, with each district electing one Supreme Court justice.

The Montana Supreme Court found the 2011 law was unconstitutional because the state Constitution specifically requires Supreme Court justices to be elected on a statewide basis.

Attorneys for Jacobsen asked for the plaintiffs’ case to be dismissed, arguing the court didn’t have the jurisdiction to give an opinion on the constitutionality of a potential law.

But Ohman wrote that three previous Montana Supreme Court rulings prevented the secretary of state from placing on the ballot initiatives that were “unquestionably and palpably unconstitutional.”

In the 2011 case, “the Court clearly stated the Montana Constitution intended Supreme Court justices to be selected on a statewide basis — exactly what” the challenged legislation prohibits, Ohman wrote.

The 2021 Legislature “was on notice” because of the ruling in the 2011 case that it could not amend the Constitution by asking voters to pass a law. The “body was free to submit a constitutional amendment to electors, however, it did not do so,” the judge wrote.

“Thus, given the defect in the attempt to amend the Constitution by legislative action, it does not make sense to await a vote,” Ohman wrote, adding that putting the referendum on the ballot ”would be a waste of time and resources and deceive the voters.”

Jacobsen’s office received a copy of the decision Tuesday and “has not had the opportunity to review and evaluate the decision at this time,” said Richie Melby, Jacobsen’s spokesperson.

Attorney Jim Goetz of Bozeman, who along with Cliff Edwards of Billings represented the plaintiffs, said they asked Judge Ohman for a quick ruling after he heard arguments in January to give the losing side a chance to appeal.