State Democracy Research Initiative
University of Wisconsin Law School

MONTANA

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Outline of Montana

Montana has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments. Election timing may vary depending on the form of ballot measure; while proposed constitutional amendments must be submitted at regular and/or general elections, the legislature may order a special election for a statutory initiative or veto referendum. All statewide ballot measures are subject to similar ballot content requirements, although the entity responsible for drafting the ballot statements may vary depending on whether the measure is initiated by voters or referred by the legislature. The Secretary of State is charged with compiling a voter information pamphlet regarding all statewide ballot measures. Among other things, the pamphlet contains arguments crafted by committees appointed to advocate for or against each measure. Montana law explicitly provides for judicial review of ballot statements and other determinations by the Attorney General via original actions filed with the Montana Supreme Court, which considers whether statutory requirements have been satisfied while affording the Attorney General a degree of discretion.

BACKGROUND INFORMATION

What forms of direct democracy are available, and when?

Statewide Ballot Measures in Montana

Montana has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments.

√ Initiatives – Statutory

√ Initiatives – Constitutional

The people of Montana have reserved the initiative power to propose and enact laws and/or constitutional amendments independently of the legislature. See Mont. Const. art. III, § 4; id. art. XIV, § 9. Initiatives cannot be used to make appropriations of money or to create special laws. See id. art. III, § 4.

√ Veto Referendums

Montanans also have the referendum power to approve or reject any act of the General Assembly, except for an appropriation of money. See Mont. Const. art. III, § 5.

√ Legislatively Referred Amendments

An amendment to the state constitution proposed by the legislature must be approved by Montana voters.  Mont. Const. art. XIV, § 8.

Election Timing

The timing of an election on a Montana ballot measure depends on the form of direct democracy. While proposed constitutional amendments must be submitted to voters at regular and/or general elections, the legislature may order a special election to submit a statutory initiative or veto referendum.

  • A statutory initiative or veto referendum must be submitted to voters at a general election unless the legislature orders a special election. Mont. art. III, § 6.
  • A constitutional initiative must be submitted at the “next regular state-wide election” after the petition signatures have been deemed valid. See Const. art. XIV, § 9.
  • A legislatively referred amendment must first be approved by a 2/3 supermajority of all members elected to the legislature; it is then submitted “at the next general election.” Mont. art. XIV, § 8.

BALLOT PREPARATION

What is included on the ballot, and who prepares it?

The ballot for any statewide ballot measure in Montana must display the following information. All statewide ballot measures are subject to similar content requirements, but the entity responsible for drafting the content may vary depending on whether the measure is initiated via voter petition or referred by the legislature.

  • Ballot statements, which must include the following.
    • A statement of the measure’s purpose and implication, if not otherwise listed as the title (135 words or less). 2023 Mont. Laws 647, §§ 2, 48 (to be codified at Mont. Code Ann. §§ 13-27-501(2)(f), 13-27-212(2)).
    • “Yes” and “no” statement to indicate that a “yes” vote indicates support for the issue and a negative vote indicates opposition. See 3 (to be codified at Mont. Code Ann. § 13-27-213).
      • For initiatives and veto referendums, the measure’s proponents submit draft ballot statements to the Secretary of State before petitions are circulated. §§ 5–7 (to be codified at Mont. Code Ann. §§ 13-27-216, 13-27-217, 13-27-218). The draft is reviewed by the Legislative Services Division, which may recommend revisions to the proponents; these recommendations are non-binding. See id. § 10 (to be codified at Mont. Code Ann. § 13-27-225).The statements are then reviewed by the Attorney General for legal sufficiency: including compliance with constitutional and statutory requirements. See id. §§ 1(7), 11 (to be codified as amended at Mont. Code Ann. §§ 13-27-110(7), 13-27-226). If the Attorney General determines the ballot statements are not in compliance, the Attorney General shall prepare a revised version. Id. § 11(3)(c) (to be codified at Mont. Code Ann. § 13-27-226(3)(c)).
        • For initiatives, following review by the Attorney General, the proposal is then subject to a public hearing held by the relevant legislative committee. See § 13(2) (to be codified at Mont. Code Ann. § 13-27-228(2)). The committee votes regarding whether to support or not support the placement of the proposed initiative on the ballot. Id. §§ 5(8)(b), 7(8)(b) (to be codified at Mont. Code Ann. §§ 13-27-216(8)(b), 13-27-218(8)(b)).
      • For legislatively referred amendments, the ballot statements may be drafted by the legislature, but if the legislature declines to do so, they are drafted by the Attorney General. See id. 9(3)(a) (to be codified at Mont. Code Ann. § 13-27-220(3)(a)).
  • The following content may also appear on the ballot, if applicable.
    • A fiscal statement (50 words or less). 2023 Mont. Laws 647, §§ 11(4), 48(2)(e) (to be codified at Mont. Code Ann. §§ 13-27-226(4), 13-27-501(2)(e)).
      • If the measure has an effect on state revenues, expenditures, or liability, the Budget Director shall determine whether a fiscal note is necessary and if so, prepare the note in cooperation with any state agencies affected by the measure. See id.§ 5(5), 6(5), 7(5), 12 (to be codified at Mont. Code Ann. §§ 13-27-216(5), 13-27-217(5), 13-27-218(5), 13-27-227(1)). See also Mont. Code Ann. § 5-4-205.
      • If this fiscal note indicates a fiscal impact, the Attorney General must prepare a fiscal statement for the ballot. 2023 Mont. Laws 647, § 11(4) (to be codified at Mont. Code Ann. § 13-27-226(4)).
    • A separate ballot title. § 48(2)(c) (to be codified at Mont. Code Ann. § 13-27-501(2)(c)).
      • Typically, the ballot title is the same as the statement of purpose and implication. See § 2(3)(to be codified at § 13-27-212(3)). However, if a court has ordered the use of another title, this court-approved title must also appear on the ballot. See id.
    • An explanatory statement by the Attorney General. See id. 48(2)(d) (codified as amended at Mont. Code Ann. § 13-27-501(2)(d)). State statutes and regulations offer little guidance on the parameters of such an explanatory statement.
    • A statement that the ballot measure conflicts with one or more measures also appears on the ballot, if the Attorney General so determines. See id.§ 11(5), 48(2)(h) (to be codified at Mont. Code Ann. §§ 13-27-226(5), 13-27-501(2)(h)).

INFORMATION TO VOTERS

What information is provided to voters before the election, and how?

Publication

X Montana law does not generally require that information about statutory initiatives or veto referendums be published in a newspaper or similar media, except for voter information pamphlets (discussed below).

  • In Montana, only constitutional ballot measures are subject to publication requirements. Specific requirements vary depending on whether a proposed amendment is initiated via voter petition or referred by the legislature.
    • For constitutional initiatives, the Secretary of State must have the full proposed initiative published twice per month for two months before the election, in at least one newspaper of general circulation in each county. See Const. art. XIV, § 9(2); 2023 Mont. Laws 647, § 38(1) (to be codified at Mont. Code Ann. § 13-27-311(1)).
    • For legislatively referred amendments, the Secretary of State may arrange for newspaper publication or radio or television broadcast in each county. See 2023 Mont. Laws 647, § 38(2)(a) (to be codified at Mont. Code Ann. § 13-27-311(2)(a)). If the Secretary of State opts for newspaper publication, it is sufficient to solely publish the ballot statements (including the statement of purpose and implication and the “yes” and “no” statements); the full proposal need not be published. See id. 38(2)(b) (to be codified at Mont. Code Ann. § 13-27-311(2)(b)).

Voter Information Pamphlet

For all statewide ballot measures, the Secretary of State is charged with preparing and printing a voter information pamphlet containing the following information. See generally 2023 Mont. Laws 647, § 41 (to be codified at Mont. Code Ann. § 13-27-401). A copy of the pamphlet must be delivered to each residence with a registered voter, at least 110 days before the election. See generally id. § 47 (to be codified at § 13-27-410).

  • A copy of the ballot title (typically, the statement of purpose and implication), and the form in which the measure will appear on the ballot. § 41(1)(a)­–(b) (to be codified at Mont. Code Ann. § 13-27-401(1)(a)–(b)).
  • The fiscal statement, if applicable. § 41(1)(a) (to be codified at Mont. Code Ann. § 13-27-401(1)(a)).
  • The complete text of the measure to be voted upon.
  • Arguments advocating the measure’s approval and rejection, drafted by appointed committees (discussed below). See id.§ 41(c), 42, 44 (to be codified at Mont. Code Ann. §§ 13-27-401(1)(c), 13-27-402, 13-27-406).
    • Each argument is limited to a single page and must include only written materials rather than pictures. Arguments must be submitted at least 105 days before the election at which the measure will be submitted to voters. See id. 44 (codified as amended at Mont. Code Ann. § 13-27-406).
    • A majority of committee members must sign off on any argument for inclusion in the pamphlet. See id.§ 44–45 (codified at Mont. Code Ann. §§ 13-27-406, 13-27-407). Committee members could potentially be held liable or otherwise legally responsible for statements printed in a voter information pamphlet. See id. § 46 (to be codified at Mont. Code Ann. § 13-27-409).
  • Rebuttal arguments (optional). §§ 41(d), 45 (to be codified at Mont. Code Ann. §§ 13-27-401(1)(d), 13-27-407).
    • Each committee advocating approval or rejection may file a rebuttal argument, which is limited to one-half the size of the originally submitted argument. Discussion in the rebuttal is confined to the subject matter raised in the argument being rebutted. § 45 (to be codified at Mont. Code Ann. § 13-27-407).

Committees charged with argument and rebuttals are subject to composition requirements, depending on the type of measure, as follows.

  • For initiatives, a committee advocating approval comprised of three members is appointed by the initiative’s proponents. See id. 42(4)(a) (to be codified at Mont. Code Ann. § 13-27-402(4)(a)). A committee advocating rejection is comprised of five members; the Governor, Attorney General, and the presidents of both legislative houses each appoint a member, and a fifth member is appointed by the first four. See id. § 42(5) (to be codified at Mont. Code Ann. § 13-27-402(5)).
  • For veto referendums, a committee advocating approval of the underlying legislative act is comprised of one senator and one representative, appointed by the president of each house, plus a third member (who need not be a legislator) appointed by the first two. See id. 42(2)(a) (to be codified at Mont. Code Ann. § 13-27-402(2)(a)). A committee advocating the underlying act’s rejection is comprised of three members appointed by the proponent of the veto referendum. See id. § 42(4)(b) (to be codified at Mont. Code Ann. § 13-27-402(4)(b)).
  • For legislatively referred amendments, both the committee advocating approval and that advocating rejection must be comprised of one senator and one representative, appointed by the president of each chamber, plus a third member appointed by the first two members (who need not be a legislator). See § 42(2)(a) (to be codified at Mont. Code Ann. § 13-27-402(2)(a)).

JUDICIAL REVIEW

When and how can the court step in?

Montana law explicitly provides for judicial review of ballot statements via original actions filed with the Montana Supreme Court. A measure’s proponents or opponents may challenge the adequacy of ballot statements approved by the Attorney General, or an Attorney General determination that a petition was legally deficient or sufficient. See 2023 Mont. Laws. 647, § 39(1)-(2) (to be codified at Mont. Code Ann. § 13-27-316(1)–(2)). Such challenges must be brought within ten days of the Attorney General’s determination. See id. They are to take precedence over other cases and the court is to render a decision as soon as possible. See id. sub. 39(3)(c)(i) (to be codified at Mont. Code Ann. § 13-27-316(3)(c)(i)).

An action challenging ballot statements must set forth how the statements do not satisfy the statutory requirements and must propose alternate statements. See id. sub. (3)(b). If the court determines the ballot statements do not satisfy the statutory requirements, it may order the Attorney General to revise them within five days or certify its own statements to the Secretary of State for inclusion on the ballot. See id. sub. 3(c)(ii). The court has noted that the statutory process affords the Attorney General with a degree of discretion in the development of ballot statements and has declined to intervene absent noncompliance with the statutes. See Montanans Against Tax Hikes v. State by and through Fox, 423 P.3d 1078, 1081 (Mont. 2018).

Montana law further provides that if the court finds the Attorney General incorrectly determined a petition to be sufficient, the measure may not appear on the ballot. 2023 Mont. Laws 647, § 39(3)(c)(iii) (codified as amended at 13-27-316(3)(c)(iii)). If the court finds the Attorney General incorrectly determined a petition to be insufficient, the Attorney General shall prepare ballot statements within five days of the court’s decision. Id. sub. (3)(c)(iv).

Sample case: Montanans Against Tax Hikes v. State by and through Fox, 423 P.3d 1078 (Mont. 2018) (rejecting a challenge that initiative ballot statements were deficient, despite mathematical misstatement that measure would be a “33% tax increase” when tax rate would increase from 50% to 83%; noting that “[t]he standard of review in these matters is not whether a better statement could have been approved, but rather whether the statement complies with [statutory requirements]”).