A group of delegates to Montana’s 1972 constitutional convention and other activists are challenging a raft of fresh restrictions on the citizen initiative process recently enacted by the Legislature.
In a complaint filed May 26 in Lewis and Clark County District Court, the plaintiffs ask the court to strike down Senate Bill 93 and other statutes that add to the processes for citizens to propose new laws and constitutional amendments as ballot initiatives.
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The right of citizens to make policy through direct action, rather than through their elected representatives, is outlined in the Montana Constitution. Those citizen initiatives have long been subject to minimum signature requirements to reach the ballot, and the constitution states they can’t appropriate money.
SB 93 requires that those proposing a ballot initiative first pay a nonrefundable $3,700 filing fee, regardless of whether they get enough signatures to get on the ballot. It also forbids citizens from proposing a similar referendum more often than once every four years.
The legislation built on a 2021 law that also created several new steps in the citizen initiative process, and is also being challenged by the lawsuit. Those changes add to initiative petitions a statement from the Attorney General’s office on potential harm to business interests, a 50-word statement on the proposal’s estimated fiscal impact and a tally of an interim legislative committee’s vote on whether the initiative should end up on the ballot.
“The Montana Constitution does not provide the AG, the Legislature, the (Secretary of State) or any entity of government with the power to interfere with the people’s power to write the initiative, including the language of the petition to place the initiative on the ballot,” the complaint states.
Constitutional convention delegates Mae Nan Ellington, Jerome Loendorf and Arlyne Reichert are among the plaintiffs in the case. It also includes several former Montana officeholders and activists with a history of working on ballot initiatives. They’re being represented by John Meyer with the Cottonwood Environmental Law Center.
It names as defendants Gov. Greg Gianforte, Attorney General Austin Knudsen and Secretary of State Christi Jacobsen, all of whom are Republicans. The plaintiffs allege that the new restrictions violate provisions in the state constitution that establish the extent of the Legislature’s power and lay out the processes for proposing initiatives, referendums and constitutional conventions.
SB 93 cleared the Legislature earlier this year with nearly all Republicans in support, and all but one Democratic lawmaker voting against it. It was signed into law by Gianforte earlier this month.
Democrats and other opponents of the bill argued it was being pushed by special interests who already control the legislative process and want to limit the citizen initiative process. The original bill emerged as a bipartisan effort crafted during the interim, but was overhauled by an amendment that had input from the Montana Chamber of Commerce and other groups, according to bill sponsor Sen. Mike Cuffe. Those changes included the $3,700 filing fee, expansions of the review process and restrictions on how often a similar measure can be proposed.
Cuffe, a Republican from Eureka, had argued that the filing fee and restrictions were necessary to compensate the use of state resources and allow a more deliberative approach to the initiative process.
“That’s what we spend on average, on the low end of average, when a ballot initiative comes forward,” Cuffe said, referring to agency staff time. “And so many ballot initiatives, they’re not well-vetted like legislation on the floor is. They’re 20-second commercials.”
Business groups who supported the amended version of SB 93 argued that the citizen initiative process makes it too easy to target certain industries.
“Organizations like ours are oftentimes expected to cough up tens of thousands, if not hundreds of thousands, of dollars to buy TV commercials to settle public policy matters that really should be in front of this body,” Cary Hegreberg, president of the Montana Bankers’ Association, told a House committee in March. “… Ballot measures should be difficult to get on the ballot, because it’s too simple a way to make law.”
The plaintiffs also allege that the changes “add weeks of additional time” to the process of getting a petition onto the ballot, without changing the deadline for proponents to reach the signature threshold for initiative petitions. Along with the ability to accept or reject proposed language to put on the ballot, the laws give “exclusive control” of the initiative process to government agencies to run down the clock, it states.
The complaint is currently before District Court Judge Kathy Seeley. Spokespeople for Knudsen and Jacobsen said Tuesday they hadn’t been served with the complaint. The governor’s office declined to comment.
