Constitutional Initiative 131 would require district court, Supreme Court elections to be nonpartisan; groups say rewritten wording suggests the opposite
Two groups leading efforts to ensure that Montana’s judicial elections, both at the local and Supreme Court level, remain nonpartisan have filed a motion with the Montana Supreme Court saying that Attorney General Austin Knudsen has rewritten the ballot language of a proposal his office had already determined met the state’s legal requirements, and alleging that Knudsen has confused the issue intentionally in order to sabotage it.
Montanans for Fair and Impartial Judges and Montanans for Nonpartisan Courts, each of which have sponsored their own versions of nonpartisan judiciary amendments, have joined together in a legal challenge for Constitutional Initiative 131, which would add just three words to the state’s constitution. The proposed amendment would make it so that the state’s Constitution would explicitly say that Montana’s judicial elections are nonpartisan.
The current portion of Article VII, Section 8 reads:
“Supreme Court justices and district court judges shall be elected by the qualified electors as provided by law.”
CI-131 would change that section:
“Supreme Court justices and district court judges shall be elected in nonpartisan elections by the qualified electors as provided by law.”
The two groups have pushed three separate proposed constitutional initiatives that deal with the judiciary. CI-131, which was submitted by Montanans for Fair and Impartial Judges, has already been approved for the signature-gathering process, while two other initiatives by Montanans for Nonpartisan Courts are still pending review by the Attorney General’s Office. Essentially, two of the initiatives would do the same thing, plus a separate initiative would make any future court or judge created by the Legislature nonpartisan as well. Monday’s court filing marks a combined effort by attorneys from both groups. Raph Graybill and Rachel Parker of the Graybill Law Firm and Alex Rate of the American Civil Liberties Union of Montana are representing MNC, while Joel Krautter is representing MFIJ.
The Montana Attorney General’s Office was not immediately available for comment on Monday.
Republican lawmakers in the Legislature have contemplated converting the state’s judicial elections to partisan, something the GOP has said would bring more transparency to the judiciary. Montana’s judicial elections have been nonpartisan since 1935, but the state’s constitution is silent on whether they can be partisan or not. CI-131, if approved by voters, would keep the state’s court races nonpartisan unless and until voters changed it through the amendment process.
However, in their lawsuit, the groups say that Knudsen’s office is intentionally meddling in the wording in attempt to create confusion, essentially sabotaging the effort. While they decried the revision, they also said in a court filing on Monday to the Montana Supreme Court that the move is illegal because Knudsen’s office had already signed off on the measure, saying it was legally sufficient.
The Montana Supreme Court is the not only the highest state court, but is also the only court authorized to hear this particular constitutional challenge.
“Montana’s statutes governing the ballot statement approval process strike a balance between securing the public’s right to make an informed vote and proponents’ constitutional right to propose ballot issues on fair terms,” the lawsuit said. “Thus, the government may intervene to improve ballot statements for clarity and neutrality. But the statutes do not empower the government to leave its own editorial imprint on ballot statements on a whim, or to degrade their quality by introducing confusing and prejudicial language.”
The revised CI-131, as submitted by Knudsen’s office, expands the three word addition to a two-sentence description:
“CI-131, if passed, mandates Montana supreme court and district court elections be non-partisan. A non-partisan election prohibits labeling candidates on the ballot according to the political party the candidate aligns with including labels like independent.”
Attorneys for the ballot group allege that Knudsen’s office expanded the description to purposely tilt against the notion of a nonpartisan court, appearing to prohibit independent candidates for judicial office.
“The Attorney General did exactly what the statute proscribes: Opining on what the ballot initiative, if passed, will do and what voters should think about it,” the lawsuit said.
Attorneys also said that if the state’s Supreme Court does not intervene, it could set a dangerous precedent where future attorneys general can rewrite ballot statements at will.
The attorneys also said that Knudsen is not following Montana law, which says that if the office finds that there is a problem or concern with a proposed ballot initiative, the review process is the proper place to raise those concerns. In this case, they allege that Knudsen’s office had already determined CI-131 met the legal requirements.
“First, the rewritten statement would lead voters to believe the initiative prohibits them from voting for judicial candidates not signed with a political party, when that is the exact opposite of the initiative’s purpose,” the lawsuit said. “Second, the statement tells voters to presume that judicial candidates are partisan and the effect of the initiative will be to conceal this information from voters. This is pure political messaging and flatly inappropriate for a ballot statement.
“Especially egregious is the Attorney General’s gratuitous reference in the second sentence to prohibiting ‘independent’ judicial candidates.”
Attorneys for the groups also say that Montana law prohibits rewriting statements to be argumentative or controversial. Instead, the State of Montana routinely publishes a voters’ guide, a “Voter Information Pamphlet,” on statewide issues in which supporting and opposing groups give their opinion for voters to consider.
“The rewritten statement prejudicially and falsely, tells voters to presume that judicial candidates are partisan actors aligned with a political party, and that voting for the initiative will have the effect of concealing this information,” the lawsuit said. “This is exactly the kind of argument — not description — that belongs in the ‘opponent arguments’ of section of the Voter Information Pamphlet, not the ballot statement itself.”