Why Montanans need a convention rather than amendments to update their constitution

This article was first posted on February 19 by the Mountain States Policy Center.

In 2030, Montana voters will decide whether to commission a new state constitutional convention. In this series of op-eds, I’ve pointed out defects in the current state constitution. And I’ve observed that amendments cannot make the necessary repairs; only a convention can do that.

One reason is that the necessary repairs are simply too extensive for the amendment process to handle. But an even more important reason is that the Montana Supreme Court likely would strike down any amendments of which the justices personally disapprove. Here is my basis for saying that:

Under the 1889 Montana constitution, only the legislature could propose amendments to the voters. Amendments, like most other bills, could cover only a single subject. This “single subject rule” was easy to comply with.

The 1972 constitution allowed ordinary citizens to propose amendments through the initiative-petition process. The single subject rule does not apply to voter initiatives.

In the 1998 election, Montanans approved Constitutional Initiative 75. It required public votes on most tax increases, and likely would have prevented controversies such as that currently raging over Montana property taxes.

But pro-spending interests loathed CI-75, and after its approval, they asked the Montana Supreme Court to reverse the election results. The case was Marshall v. Montana.

The plaintiffs’ case was remarkably weak. Almost any other court would have dismissed it summarily. The plaintiffs had no standing to sue, their factual claims were rebuttable, and CI-75’s drafters had been careful to comply with all existing rules—including, in an excess of caution, the single subject rule.

Moreover, it violates the state constitution to overturn a ballot issue after the voters approve it, and it violates the U.S. Constitution to impose new election standards on an election already held.

Yet in early 1999—in one of the most astounding decisions in state judicial history—the Montana Supreme Court upended the CI-75 election. To justify the result, the court derived an unprecedented legal doctrine from an irrelevant section of the state constitution and applied that doctrine to the election retroactively.

This new doctrine came to be called the “separate vote rule.” But it’s not really a “rule,” because it changes with every new case. In Marshall, the court said CI-75 was invalid because it expressly altered three sections of the state constitution. In a 2017 case, where an amendment merely added a single section, the court said the amendment was invalid because it impliedly changed parts of the constitution not “closely related.” In a 2023 case, the court admitted the proposed amendment addressed subjects that were tightly “conjoined,” but the amendment failed because it affected different parts and functions of the state bureaucracy.

On the other hand, when the justices want to uphold an amendment, the “separate vote rule” suddenly disappears, or they change it, or they help the sponsors by re-drafting the amendment themselves.

I’ve written about the fictitious “separate vote rule” extensively elsewhere. It’s enough to say at this point that the justices mostly use it to strike down conservative amendments while upholding liberal ones.

But the important point here is that the job of rewriting the state constitution is too important to entrust to the Montana Supreme Court’s capricious and arbitrary behavior. The only way the people of Montana can systematically update their constitution is to commission a state convention to propose a new one.

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