Montana Attorney General Austin Knudsen went too far in editing ballot language for an initiative calling for nonpartisan court elections, the state Supreme Court ruled Tuesday.
With two judges dissenting, the justices sided with Montanans for Nonpartisan Courts, ruling that changes Knudsen made to Constitutional Initiative 132 would “mislead voters and prevent them from casting an intelligent and informed ballot.”
The initiative, if approved by voters, would amend nonpartisan court races into the Montana Constitution. In October, Knudsen approved CI-132 for signature gathering. To qualify for the 2026 November ballot, the petition needs 60,000 Montana voters to sign on.
But the attorney general also changed the ballot language for CI-132. Knudsen’s language states that “a non-partisan election prohibits labeling candidates on the ballot according to the political party the candidate aligns with,” suggesting that all judicial candidates align with a political party and the initiative would prohibit disclosure.
“We conclude the Attorney General’s proposed Statement does not meet the requirements of [the law], because his wording does not fairly state to the voters what is proposed within CI-132,” Justice James Shea wrote for a four-judge majority.
Chief Justice Cory Swanson and Justice Jim Rice sided somewhat with Knudsen. The attorney general had taken issue with the original CI-132 ballot language suggesting that judicial races would by law “remain” nonpartisan if the initiative passed. Nonpartisan races are the current Montana public policy, but there is no language in the Montana Constitution requiring nonpartisan races for judgeships at all levels.
“This is a proposed amendment of the Constitution, and use of the word ‘remain’ conveys the idea that the Constitution currently provides for nonpartisan elections, which is incorrect,” Rice said in his dissent.
In his dissenting opinion, Swanson connected Knudsen’s subjective assessment of undisclosed judicial partisanship with the well-plied allegations of political bias in the courts made by conservative politicians, including the attorney general. Knudsen has blamed activist judges for the justice department’s high-profile court losses on cases concerning climate change and abortion.
“The attorney general’s description implies the candidate will in fact be affiliated with an organized political party, but that affiliation will remain hidden from the voters,” Swanson said in his dissent. “While I understand this is the working theory of those who advocate for partisan judicial elections — remove the screen which is obscuring the judicial candidate’s loyalties — this theory has not been established as fact for the purposes of the official ballot statement informing voters of the proposed amendment’s substance.
“The proponents and opponents will both argue the merits of this point, but the ballot statement should be as clear as possible and divorced from the campaign.”
Knudsen was right about striking the word “remain” from the original CI-132 language, Swanson concluded.
The court’s majority was less literal than Rice and Swanson about the application of “remain.” Nonpartisan judicial races are the status quo, Shea wrote. Passage of CI-132 would keep court races nonpartisan.
“It does not mislead voters as to what the Montana Constitution currently requires but provides the context that judicial elections are currently nonpartisan and this amendment, if passed, would maintain that status quo,” Shea wrote in the majority opinion. “As we noted above, the current law is the status quo.”
The court unanimously sided with Knudsen’s rejection of a separate proposed ballot issue for making two substantive changes to the Montana Constitution that weren’t closely related. Ballot Issue 6 required that any new court created be staffed with judges who were elected, not appointed. It also required judicial elections to be nonpartisan.
Knudsen argued that the Ballot Issue 6 subjects would have to be voted on separately to avoid “logrolling” unrelated constitutional amendments into a single vote, potentially confusing voters, or persuading voters to approve a legal change they dislike to obtain a change they do.
Montanans for Nonpartisan Courts also drafted Ballot Issue 6. The group said in a press release Tuesday evening that it was grateful for the prompt ruling on CI-132.
MNC also partnered with another petition group, Montanans for Fair and Impartial Judges, on Oct. 6 to sue over similar attorney general edits to Constitutional Initiative 131, a petition to make nonpartisan races constitutionally secured for state Supreme Court and district courts. That lawsuit remains undecided.
The initiatives follow several failed attempts by Republican legislators earlier this year to allow judicial candidates to declare party affiliation. GOP lawmakers have accused the courts of liberal bias after several laws passed by the Legislature in recent years have been ruled unconstitutional.