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This essay was first published in the December 4, 2023 Epoch Times.
One of the few ways the people can check an overreaching judiciary is by passing constitutional amendments. At the federal level, the people reversed U.S. Supreme Court decisions through the 11th, 14th, and 26th amendments.
At the state level, the people sometimes use the citizen initiative process to curb activist judges. The citizen initiative process allows anyone to circulate a petition to put a proposal on the ballot so the people can vote on it. This prevents judicial oligarchy. It also is a “safety valve” for popular discontent.
So alarm bells should go off when a state supreme court hijacks the amendment process itself.
To some extent, this has happened in several states—including, for example, Oregon and Pennsylvania. But nowhere has it gone as far as in Montana, where the state’s highest court has asserted an absolute veto over what the people may add to their own constitution.
Montana once was a populist state where, in close questions, judges tended to defer to the popular will.
In Montana, as elsewhere, the terms of a state constitutional amendment were fixed by the content of the proposal offered to, and approved by, the people.
The Montana constitution, like that of many other states, has a “separate vote” requirement. This was not designed to control the content of amendments. It was designed to promote democracy by preventing officials from bundling amendments to force the people to vote “yes” or “no” on the entire package. The “separate vote” rule assured that if, for example, the legislature proposed two amendments and the people proposed one by petition, the voters could vote differently on each.
Traditionally, the only restriction on a Montana amendment’s content was that when the legislature proposed, it had to meet the same single-subject rule applied to other bills. Even this loose standard did not apply to voter initiatives.
The Montana Supreme Court Becomes Hyper-Activist
For several decades, however, the Montana Supreme Court has been hyper-activist. Since 1982, the tribunal has an almost unbroken record of upholding liberal ballot measures and striking down conservative ones.
In November, 1998, against all odds, the voters approved Constitutional Initiative 75. This was a tightly-drafted measure to allow the people to vote on most tax increases. CI-75 was what scholars call a “tax and expenditure limitation” or “TEL.”
The drafters of CI-75 (of which I was one) sought to avoid defects in other state TELs. We did so by clarifying terms and adding enforcement mechanisms. All of the terms were integral to accomplishing CI-75’s purpose. For clarity, CI-75 identified three sections of the constitution being changed. There was little dispute that CI-75 complied with existing law
Yet a few months later, in Marshall v. Montana (pdf), the state supreme court voided CI-75. To do so, it adopted a novel interpretation of the “separate vote” requirement.
The justices claimed that because CI-75 expressly changed three sections of the constitution, it was really three amendments that had to be voted on separately. Furthermore, the justices overruled several of their own case precedents and imposed the change retroactively on an election already held!
Of course, anyone who reads a constitution knows that nearly all amendments—even the narrowest—alter more than one part of the pre-existing document. Some amendments, such as the 5th and 14th in the U.S. Constitution, sprawl over multiple topics.
Marshall v. Montana achieved its purposes, however: The court converted the “separate vote” requirement from a rule to promote popular sovereignty into a rule to limit popular sovereignty. It denied the people the right to vote on the taxes they pay. It asserted a veto over the people’s approval of constitutional amendments. And it deeply discouraged conservative and pro-freedom activists.
The Court Extends Its Power Further
In 2016, Montanans voted to add CI-116, a crime victims’ bill of rights (“Marsy’s Law), to the state constitution. This time, the drafters were careful not to specify parts of the constitution being amended.
But the court still voided it. In Montana Ass’n of Counties v. Fox (pdf), the court pointed out that an amendment can change several parts of a constitution even if it doesn’t say so.
Less plausibly, the justices added that (1) any language added to the constitution would be counted as one amendment and (2) the effect of that language would be counted as a second amendment. This rendered it literally impossible for any amendment to be counted just as one.
Then the court went on to say that any “substantive” changes had to be “closely related” for the measure to survive.
What did the court mean by “substantive” and “closely related?” No one really knows, and the court hasn’t provided much guidance. In the CI-116 case, for example, the court ruled that a victim’s right to be present at the defendant’s bail hearing was “not closely related to victims’ rights”—even though a major part of many bail hearings is the risk the defendant might pose to the victim and to others.
The Court Vetoes Property Tax Relief—and Makes a Damaging Admission
Montanans, like residents of some other Western states, face soaring property tax assessments. This year, petitioners offered a constitutional amendment to rein in property taxes.
Their proposed amendment altered only one section of the state constitution. All its terms were, as the court admitted, tightly “conjoined.”
Still, the court voided the proposal. And this time it did so even before the electorate had a chance to see it. The case was Monforton v. Knudsen (pdf).
The justices held that the tax-relief measure changed several parts of the constitution. One purported reason was that it affected functions that happened to be carried out at different levels of government. Another purported reason was that it added a cap on tax hikes to its cap on property assessments.
The court said these changes were not “closely related.” As in the previous two cases, it didn’t matter that they were integral to carrying out the amendment’s purpose.
In Monforton, the court also held that all “separate vote” challenges had to be brought before the people made a decision—that the Montana constitution forbids such challenges after the election has been held.
This was an admission that the cases voiding the CI-75 and CI-116 elections had been illegitimate.
The Rules Change for a Liberal Amendment
Those of us who regularly follow the Montana Supreme Court predicted that it would never apply its impossible-to-meet standards when liberal amendments were challenged.
And on November 22, we were proven right. The case was Montanans for Election Reform Action Fund v. Knudsen (pdf).
At one time, Montana was among those northern states in which the Republican Party was controlled by its “progressive” wing. Gradually, however, the Montana GOP has grown more conservative.
As I pointed out in an earlier Epoch Times column, when “progressives” lose under a set of rules they often seek to change the rules. This year they prepared a constitutional amendment to revolutionize Montana’s election laws.
The principal purpose of the amendment seems to be this: to make it easier for self-styled “moderate Republicans” to shut out more conservative rivals. The amendment would have another likely result also: to make it easier for the left-of-center minority to win statewide elections by garnering small pluralities in multi-candidate contests.
Their proposed amendment would alter several provisions in the Montana constitution. The provisions being changed include candidate qualifications, the legislature’s power to regulate elections, and arguably even the free speech guarantee. (Significantly, the changes exempt Montana Supreme Court justices.)
Yet—surprise!—the court upheld this one. It claimed each constitutional change was “integral” to the whole. This was the same justification the court rejected in the prior three cases.
The story is a caution to all Americans: The courts have no business determining the content of constitutional amendments. This is the prerogative of the people. It is a prerogative the people should guard jealously.