Montana Supreme Court Strikes Down Four Limits on Citizen Ballot Initiatives
On October 6, 2026, the Montana Supreme Court agreed with MSWD’s arguments and ruled that the Legislature cannot add obstacles to the citizen initiative process that the Montana Constitution does not impose. In Ellingson v. State, 2026 MT 233, the Court invalidated four provisions of Senate Bill 93, at 2023 law that (1) prohibited resubmission of ballot issues within four years, (2) required a $3,700 filing fee, and (3) required an legislative interim-committee vote to be printed on the ballot. In an issue of first impression, the Court also considered what level of review it uses when evaluating laws implicating the power of initiative.
Rob Farris-Olsen argued the case for amici curiae Planned Parenthood Advocates of Montana and the Montana Public Interest Research Group. John Meyer of Cottonwood Environmental Law Center argued for the citizen plaintiffs who brought the challenge.
Impair versus facilitate. Before addressing the merits, the Court had to determine the appropriate level of review for laws that implicate the people’s power of initiative. In doing so, the Court addressed the constitutional background, noting that Article V, Section 1 reserves the powers of initiative and referendum to the people, and Article III, Sections 4 and 5 set out the conditions for exercising them. The Court read that history, from the Progressive-era fight against corporate control of the Legislature through the 1972 Constitutional Convention, to mean that the people's lawmaking power is equal to, and independent of, the Legislature's.The Legislature plainly may enact procedures that carry the process into effect, such as filing, drafting review, signature verification, and election administration, and it has a constitutional duty to guard against abuses of the electoral process, but it may not go so far as to undermine the people’s power of initiative. In that vein, the Court held that it must determine whether given law "facilitates" the initiative power or "impairs" it. It held that a regulation facilitates the process if it reasonably helps administer it, supplies neutral information needed to carry it into effect, or protects against abuse without materially burdening the people's power or conditioning access to it on a substantive requirement the Constitution does not impose. However, a regulation impairs the process, and is invalid, if it substantially burdens the people's coextensive lawmaking power. In reaching these conclusions, the Court rejected the State's argument that the Legislature need not hold itself to any comparable rule. It held that a regulation the Legislature imposes on initiatives but not on itself will be weighed in deciding whether the regulation is reasonably necessary. Legislative practice is useful evidence, but it is not a separate test. The Court also reaffirmed that the usual presumption of constitutionality does not carry the same weight here, and that doubts about whether a regulation facilitates or impairs the process are resolved in favor of the people.
The four-year resubmission ban. Section 13-27-221, MCA, barred filing an initiative that was "substantially the same" as a measure voters defeated within the previous four years. The Court found that Article III, Section 4(1) extends the initiative power to "all matters" except appropriations and local or special laws, and the State conceded as much. The delegates at the 1972 Convention addressed their concern about frivolous measures through demanding signature requirements, and a proponent must meet them each time, even for a measure that was once defeated. Because the ban turned on a measure's substantive content, the Court held that it limited what could qualify for the ballot and did not simply regulate procedure. The Court further noted, that the ban also has no legislative counterpart, which elevated the Legislature's lawmaking power above the people's. Accordingly, the resubmission ban is unconstitutional.
The interim-committee vote. Section 13-27-228, MCA, required a legislative interim or administrative committee to vote on whether it supported placing each proposed initiative on the ballot, and required the result to appear on the face of the petition. The Court held that the vote impairs the initiative power. The Constitution requires only the "full text of the proposed measure," and the Court traced a long history of additional petition text being limited to neutral, non-argumentative statements. The committee vote does the opposite, because it puts the Legislature's opinion in front of every signer. It also delayed the start of signature gathering by fourteen days in a process the Court described as already tightly constrained by the calendar. Continuing, the Court noted that the 1972 delegates deliberately removed the Legislature from the initiative process so that the people's power would remain independent of it.
The $3,700 filing fee. Section 13-27-215, MCA, required initiative proponents to pay a nonrefundable $3,700 fee, subject to a hardship waiver and penalties if a proponent was found able to pay. The Court observed that the Constitution says nothing about fees as a condition of participating in the initiative process. The State therefore had to show that the fee is reasonably necessary to facilitate the process or prevent demonstrable abuse, and it did not. The State's own argument that the fee deters unserious proposals confirmed that its purpose is to keep people from filing, since the signature requirements already do that work. The State's claim that the fee covers review costs lacked record support and was undercut by its acknowledgment that every proponent since enactment had received a waiver. The Court also noted that the Legislature charges nothing for bill drafts submitted to it, which is the kind of double standard that impairs the initiative power. The existence of a waiver, together with the threat of a penalty, did not save the fee.
Ellingson gives Montanans a clear, history-based statement of who holds lawmaking power under Article III, Sections 4 and 5 and Article V, Section 1, and it tells lawmakers that regulating the initiative process is not a license to obstruct it. The impair-versus-facilitate test, together with the rule that doubts are resolved in favor of the people, will frame future challenges to laws governing the initiative and referendum process.