Constance Van Klee filed the following complaint in her personal capacity: Court summary On behalf of Campaign Legal Center Kendrick vs. Knudsen.
Montana voters may be among the first to consider a state constitutional amendment aimed at limiting new legislative burdens on direct democracy.
Half of the states allow citizens to directly enact laws, override laws, and amend the state constitution. And in any state, Congress can submit bills or proposed constitutional provisions to the voters. Citizen-driven constitutional reform processes began to appear in state constitutions around the beginning of the 20th century, primarily in Western countries. But state legislatures are increasingly trying to make it increasingly difficult for residents to amend the constitution or pass ordinances by popular vote.
The bill proposed for Montana’s 2026 ballot would specifically protect the “right of the people to exercise the initiative and referendum power.” The proposal would limit Congress’ ability to encumber that right, prevent government officials from voting for or against ballot measures, and give the public enough time to gather the signatures needed to put a measure on the ballot. This proposal for a right to direct democracy responds to concerns about legislative interference with voting access. Ongoing litigation surrounding the initiative shows how state legislatures, attorneys general and courts can prevent voters from having the final say on constitutional changes.
Legislative hurdles to direct democracy in Montana
The measure is a response to obstacles the Montana Legislature has put in place for residents seeking amendments to the state constitution. Over the past few sessions, Congress has made significant changes to the process by which proposed constitutional initiatives are certified by vote. Supporters seeking approval to begin collecting signatures must currently pay a non-refundable fee of $3,700, the highest in the nation. If the state budget director determines that the provision would have an economic impact on the state, it will create a fiscal memo (which will be placed on the ballot). The attorney general could then review the initiative’s “legal sufficiency” and try to rewrite the ballots. The attorney general will also review whether the proposal is “likely to cause material material harm” to business interests, including the possibility of triggering a regulatory investigation, and will write an adverse decision on the ballot petition. A legislative committee will vote on whether to support the initiative.
Ballot proponents may challenge the Attorney General’s determination of the initiative’s legal sufficiency, revisions to ballot language, and adverse business impact determinations. If the initiative passes this first stage of review, either because the attorney general has given the go-ahead or a court has overturned an adverse decision, proponents can begin gathering signatures. But first, supporters must register all paid signature collectors with the state. And while supporters have a constitutional right to pay signature gatherers (and are far more likely to succeed if they do so), paid signature gatherers must tell potential signers their name, where they live, and that they are being paid. Finally, if the proponent collects enough signatures and the initiative does not pass, they will be prohibited from attempting a similar amendment for at least four years.
Under this regime, the Abortion Amendment of 2024, although ultimately successful, resulted in protracted litigation that included the Attorney General’s determination of legal insufficiency, the Attorney General’s fiscal report after the Budget Director found there would be no fiscal impact, the Attorney General’s rephrasing of the voting statement, the Secretary of State’s refusal to authorize signature gathering, and attempts to change the rules governing who could sign the petition.
Individual voting requirements
Consistent with the progressive and populist sentiments that drove direct democratic reforms in the early 20th century, most states with constitutional initiatives prohibit logrolling, which combines multiple unrelated proposals into a single initiative to increase the chances of passage. A substantial majority of these states have separate voting requirements, ensuring that each proposed constitutional amendment is presented to voters independently. And many bills have single-subject rules that require cohesion between subparts of an amendment, in addition to, or instead of, separate voting requirements.
Interpretation of Montana’s separate voting provision provides considerable ammunition for hostile judges, further adding to the burden of the newly enacted legislation. In a 2017 decision, the Montana Supreme Court struck down Marsy’s Law, a constitutional bill of rights for crime victims, based on the separate voting requirement. In doing so, it adopted a seemingly easy rule developed in Oregon that asks whether a proposal “makes two or more substantive but not closely related changes to the Constitution.” However, he said that the constitutional amendment itself is a change, and the effect on other constitutional provisions is also a change. If the affected provisions themselves are not closely related, the separate voting requirement would be violated. As for Marsy’s Law, adding language to the Constitution was itself a change, and any impact on other provisions, no matter how tangential, such as amending the prosecutor’s duties that interacted with the courts’ constitutional powers to regulate the judiciary, were not closely related was a bridge too far.
As Justice James Rice wrote in a dissenting opinion, the court’s analysis is likely to result in a “radical nullification of the initiative.” This warning seems prescient today, as it can be reasonably argued that nearly every new constitutional amendment interacts with other provisions. For example, if Montana did not have an explicit privacy right and tried to adopt one today, it probably would not be able to do so because creating an enhanced privacy right would affect several constitutional provisions that are not considered closely related to each other, such as search and seizure requirements, the right to access government information, and due process.
Montana’s secessionist stance reflects legitimate concerns that Montana’s streamlined 1972 Constitution remains consistent and centered on the state’s unique needs. But overly strict rules create the same problems as unnecessary $3,700 application fees. This is evidence of distrust of the people as sovereign citizens and undermines confidence in the democracy that distinguishes state constitutions.
Impact on voting access in 2026
Between legislative hurdles and strict individual voting requirements, supporters of ballot initiatives may not be able to present proposed constitutional amendments to the public.
Indeed, several initiatives proposed for the state’s 2026 ballot have already been blocked. First, the Montana Plan is a proposal that seeks to circumvent a 2010 U.S. Supreme Court ruling. citizens united Decisions under state corporate law. Montana’s attorney general disqualified the ballot proposal based on separate voting requirements, finding the proposal would cause “substantial harm” to business interests. Voting advocates unsuccessfully challenged the attorney general’s decision. The Montana Supreme Court ruled that the proposal violates individual voting requirements because voters who support the proposal’s campaign finance goals may have different views about other outcomes, such as limiting the power of corporations more generally. Because this initiative was disqualified, the court reached no other findings of the Attorney General. Proponents have since submitted two new Montana plans, but they have little time to collect signatures if one of them passes legal review.
Second, after a meeting in which the Montana Legislature considered making Montana’s judicial elections partisan, proponents laid out three initiatives to make nonpartisan judicial elections constitutional. The attorney general altered the ballot statements of all three candidates and ruled that one of them was legally insufficient because it did not comply with Montana’s individual voting requirements, forcing the lawsuit. The court rejected the alterations on ballots in two cases, but affirmed the legal insufficiency in the third case. One of these measures is now being presented to Montanans seeking signatures to be eligible to vote.
Third and finally, a group called Montanans Decide has proposed a direct democracy rights initiative for the 2026 vote. The Attorney General determined that this initiative was legally insufficient because it did not comply with the requirements for a separate vote, and rewrote the separate voting statement. Ballot proponents challenged the attorney general’s decision and the case. Kendrick vs. Knudsenwhich remains pending in the Montana Supreme Court. If the bill passes judicial review, passes ballot qualification, and is approved by voters, it would place significant limits on interference with direct democracy in Montana and could serve as a model for other states that see similar interference with the initiative and referendum processes.
Nationwide attack
Montana isn’t the only state where the state legislature is creating new hurdles for residents seeking to amend the state constitution. Across the country, Congresses are passing laws that make it harder to gather signatures to qualify provisions, increasing the percentage of voters needed to amend the constitution, imposing filing fees on new proposals, and creating processes for executive branch officials (such as state attorneys general) to consider amendments before ballots are certified.
Beyond the legal burden on the initiative process, government officials can use their power to keep issues off the ballot or invalidate them after the fact. For example, in just one step in the long (and ongoing) saga over the success of Missouri’s abortion plan, the state attorney general refused to certify the ballot initiative, citing disagreements with the state auditor’s financial report. And the Mississippi Supreme Court effectively invalidated the initiative clause of the Constitution, along with the successful initiative to legalize medical marijuana, based on redistricting’s impact on the Constitution’s signature-gathering requirements.
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Ahead of the 2026 election, the Montana Supreme Court’s consideration of ballot access cases highlights how direct democracy faces pressure from all directions. The Legislature could impose new burdens on the effort. The attorney general can investigate ballot issues and impose policy decisions. Courts could then interpret procedural limitations to exclude initiatives or referendums from voting altogether.
Constance Van Kley is an assistant professor at the University of Montana Alexander Blewett III School of Law, where she teaches state and federal constitutional law. The views expressed are the author’s own.
Recommended Citation: Constance Van Klee, The proposed ballot measure would limit the Montana Legislature’s ability to burden direct democracy. Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (February 17, 2026), https://statecourtreport.org/our-work/analysis-opinion/proused-ballot-measure-would-limit-montana-legislature-burdening-direct
