Proposed Ballot Measure Would Limit Montana Legislature from Burdening Direct Democracy

Constance Van Kley, in her individual capacity, filed an amicus brief on behalf of Campaign Legal Center in Kendrick v. Knudsen.

Montana voters may be the first to consider a state constitutional amendment intended to limit new legislative burdens on direct democracy.

Half of the states allow the people to directly initiate laws, override legislation, or amend their state constitutions. And in every state, the legislature can refer a proposed statute or constitutional provision to the voters. Citizen-initiated constitutional amendment processes began appearing in state constitutions around the turn of the 20th century, largely in the West. But state legislatures have increasingly attempted to make it harder for citizens to amend their constitutions or enact statutes by popular vote.

A measure proposed for Montana’s 2026 ballot would create express protections for the “right to exercise [the people’s] powers of initiative and referendum.” The proposal would limit the legislature’s ability to burden that right, prevent government officials from showing partiality for or against ballot measures, and ensure adequate time for citizens to gather the signatures required to place a measure on the ballot. This right-of-direct democracy proposal responds to concerns about legislative interference with ballot access. Ongoing litigation over the initiative demonstrates the ways in which state legislatures, attorneys general, and courts may prevent voters from having the last word on constitutional change.

Legislative Hurdles to Direct Democracy in Montana

The measure is a reaction to obstacles the Montana legislature has created for citizens seeking to amend the state constitution. Over the past several legislative sessions, the legislature has substantially modified the process by which a proposed constitutional initiative is certified for the ballot. When a proponent seeks approval to begin gathering signatures, they must now pay a nonrefundable fee of $3,700 — the highest such fee in the nation. If the state budget director finds that provision will have an economic impact on the state, they prepare a fiscal note (which will be placed on the ballot). The attorney general then reviews the initiative for “legal sufficiency” and may attempt to rewrite the ballot statement. The attorney general also reviews whether the proposal “will likely cause significant material harm” to business interests, including by potentially causing a regulatory taking, with an adverse determination appearing on the ballot petition. A legislative committee votes on whether it supports the initiative.

The ballot proponent may challenge the attorney general’s determination of the initiative’s legal sufficiency, revision of the ballot language, and determination of adverse impact on a business. If the initiative passes this first stage of review — either because the attorney general greenlights it or the court overrules an adverse determination — the proponent may begin gathering signatures. First, though, proponents must register every paid signature-gatherer with the state. And although proponents have a constitutional right to pay signature gatherers (and are far likelier to succeed if they do), paid signature gatherers must tell each potential signatory their first name, their state of residence, and that they are being paid. Finally, if the proponent collects enough signatures but the initiative does not pass, they are barred from attempting a similar amendment for at least four years.

Under this regime, a 2024 abortion amendment, while ultimately successful, resulted in protracted litigation involving the attorney general’s legal insufficiency determination, the attorney general’s creation of a fiscal note after the budget director identified no fiscal impact, the attorney general’s reworded ballot statement, the secretary of state’s refusal to allow signature-gathering, and an attempt to change the rules governing who can sign a petition. 

Separate-Vote Requirements

Consistent with the progressive and populist sentiments that drove the direct-democracy reforms of the early 20th century, most states with the constitutional initiative power prevent logrolling — combining multiple unrelated proposals into one initiative in order to improve the likelihood of passage. The substantial majority of these states have separate-vote requirements, ensuring that each proposed constitutional amendment be independently presented to voters. And many have single-subject rules, which require cohesion among subparts of a proposed amendment, in addition or alternatively to separate-vote requirements.

Montana’s interpretation of the separate-vote provision provides considerable ammunition for a hostile reviewer, compounding newly enacted legislative burdens. In a 2017 decision, the Montana Supreme Court invalidated “Marsy’s Law,” a constitutional bill of rights for crime victims, under the separate-vote requirement. In doing so, it adopted a rule developed in Oregon that, on its face, seems easy enough to meet, asking whether a proposal “make[s] two or more changes to the constitution that are substantive and not closely related.” But it went on to say that the amendment is itself one change and that any effect on other constitutional provisions is another change. If the affected provisions are not themselves closely related, the separate-vote requirement is violated. With regard to Marsy’s Law, the addition of language to the constitution was itself one change, and any effects on other provisions, no matter how tangential — for example, its modification of a prosecutor’s duties, which interacted with the court’s constitutional authority to regulate the bar — that weren’t closely connected was a bridge too far.

As Justice James Rice wrote in dissent, the court’s analysis was likely to result in “precipitous invalidation of initiatives.” That warning appears prescient today, as one can reasonably argue that nearly any new constitutional amendment will interact with other provisions. For example, if Montana did not have an express right to privacy and attempted to adopt one today, it might well be unable to do so, as creating enhanced privacy rights would affect several constitutional provisions that could be found not closely related to each other — such as requirements for searches and seizures, the right of access to government information, and due process. 

Montana’s separate-vote doctrine reflects a legitimate concern that Montana’s streamlined 1972 constitution remain cohesive and centered in the state’s unique needs. But a too-strict rule presents the same problems as an unnecessary $3,700 filing fee — it evidences distrust in the people as popular sovereign, eroding the faith in democracy that sets state constitutional law apart.

Impacts on Access to the Ballot in 2026

Between legislative hurdles and a strict separate-vote requirement, proponents of ballot initiatives may find themselves unable to present proposed constitutional changes to the people.

Indeed, several initiatives proposed for the state’s 2026 ballot have already been blocked. First, the Montana Plan is a proposal that would attempt to bypass the U.S. Supreme Court’s 2010 Citizens United decision using state corporate law. Montana’s attorney general disqualified the proposal for the ballot under the separate-vote requirement and found that the proposal posed “material harm” to business interests. The ballot proponents challenged the attorney general’s determination, but they were unsuccessful. The Montana Supreme Court held that the proposal violated the separate-vote requirement because voters who support the proposal’s campaign finance goals may have different views about some of its other consequences, such as limiting corporate powers more generally. Because the initiative was disqualified, the court did not reach the attorney general’s other findings. The proponents have since filed two new Montana Plan proposals, but they will have very little time to gather signatures if one of these proposals makes it through legal review.

Second, following a session during which the Montana legislature considered making Montana’s judicial elections partisan, proponents set forth three initiatives that would constitutionalize nonpartisan judicial elections. The attorney general rewrote the ballot statements for all three and deemed one of the three legally insufficient for noncompliance with Montana’s separate-vote requirement, forcing litigation. The court rejected the rewritten ballot statements in two cases but affirmed the legal insufficiency determination in the third. One of these measures is now being presented to Montanans for signatures to qualify for the ballot.

Third and finally, a group called Montanans Decide has proposed the right-of-direct democracy initiative for the 2026 ballot. The attorney general deemed the initiative legally insufficient for noncompliance with the separate-vote requirement and, separately, rewrote the ballot statement. The ballot proponents challenged the attorney general’s determinations, and the case, Kendrick v. Knudsen, remains pending before the Montana Supreme Court. If the measure survives judicial review, qualifies for the ballot, and is approved by the voters, it will place substantial limits on interference with direct democracy in Montana and may become a model for other states seeing similar interference with the initiative and referendum processes.

A Nationwide Attack

Montana is not the only state in which state legislatures are creating new obstacles for citizens seeking to amend their state constitutions. Across the country, legislatures are passing laws making it harder to gather signatures in order to qualify a provision, increasing the percent of voters needed to amend the constitution, imposing a filing fee on new proposals, and creating processes by which executive branch officials (such as the state attorney general) review proposed amendments prior to ballot certification. 

Beyond statutory burdens on the initiative process, government actors may use their power to keep an issue off the ballot or to invalidate it after the fact. For example, as just one step in a long-running (and ongoing) saga over Missouri’s successful abortion initiative, the state attorney general refused to certify the initiative for the ballot based on a purported disagreement with the state auditor’s fiscal note. And the Mississippi Supreme Court effectively invalidated its constitutional initiative provision — along with a successful initiative legalizing medical marijuana — based on the effect of redistricting on the constitution’s signature-gathering requirements.

• • •

Ahead of the 2026 election, the Montana Supreme Court’s review of ballot access-related litigation highlights how direct democracy faces pressure from all directions. Legislatures may impose new and mounting burdens on initiatives; attorneys general may subject ballot issues to searching review and impose policy judgments upon them; and courts may interpret procedural limits to keep initiatives and referenda off the ballot altogether.

Constance Van Kley is an Assistant Professor of Law at the Alexander Blewett III School of Law at the University of Montana, where she teaches state and federal constitutional law. The views expressed are the author’s own.

Suggested Citation: Constance Van Kley, Proposed Ballot Measure Would Limit Montana Legislature from Burdening Direct Democracy, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Feb. 17, 2026), https://statecourtreport.org/our-work/analysis-opinion/proposed-ballot-measure-would-limit-montana-legislature-burdening-direct