Victory for Citizen-Led Democracy in Montana
The Montana Supreme Court has decided a precedent-setting case in favor of Cottonwood and the people of Montana. The decision is a major victory for citizen-led democracy in Montana, where the state constitution expressly reserves the powers of initiative and referendum to the people.
In 2024, Cottonwood filed a lawsuit challenging SB 93, a law that restricted the People’s power of lawmaking. Mae Nan Ellingson, the lead plaintiff in the case and the youngest delegate to the 1972 Constitutional Convetion, wrote the Preamble to the Montana Constitution that is shown above.
The Montana Supreme Court formulated a new test for determining the constitutionality of challenged laws that implicate Montanans’ constitutional powers of initiative and referendum. Under the Ellingson decision, a law that facilitates the People’s power is constitutional, while a law that impairs the People’s power is unconstitutional. The Court decided the People’s power of law-making is equal to that of the Legislature and courts should consider whether the legislature imposes the same restrictions on itself when deciding the constitutionality of a challenged law.
The Court applied the new precedent and struck down four laws as unconstitutional. First, the Court decided the legislature cannot charge People money to submit a ballot initiative. Second, the Court decided the Attorney General cannot decide the constitutionality of a ballot initiative—that is the courts’ job. Third, the legislature cannot insert itself into the People’s lawmaking process by adding unnecessary language to the face of signature petitions. Fourth, the legislature cannot prohibit the re-submission of a statewide ballot measure for four years after defeat of a substantially similar measure.
Watch the oral argument in the Montana Supreme Court below.
Cottonwood has been on the front lines of constitutional ballot initiative litigation for years. We're grateful to have represented some of the remaining delegates that wrote the 1972 constitution; a former Republican Secretary of State; a former Speak of the House; a former Commissioner of Office of Political Practices; a Montana Constitutional historian; a retired University of Montana professor, a retired employee of the Montana Water Quality Bureau, and others.
Join Cottonwood in continuing to safeguard our Constitution. Become a member or donate.
Read the first District Court Order.