Montana voters are being asked to decide on Constitutional Initiative 132 (CI-132) for the November 2026 ballot. Keep it simple: CI-132 would amend the state constitution to declare, “Judicial elections shall remain nonpartisan.” It doesn’t create a new system—it just locks in the current one (nonpartisan judicial races by statute since 1936) so the legislature can’t switch to partisan elections without another voter-approved constitutional change. Supporters call it a safeguard for impartial courts. Critics say it’s a Trojan horse: it freezes a broken status quo where judges hide behind a “nonpartisan” label while legislating from the bench, striking down laws voters and lawmakers support, and making policy instead of applying the law.
The core problem? No judge is truly nonpartisan. Every one has a worldview shaped by philosophy, experiences, and politics. Without party labels on the ballot, average voters fly blind while insiders (lawyers, donors, party operatives) know exactly where candidates stand. This isn’t neutrality—it’s opacity that shields activist rulings. And after 90 years, Montana’s courts show a clear pattern of overreach: voiding conservative laws and ballot measures while upholding liberal ones, often ignoring the presumption that democratically passed laws are constitutional unless proven otherwise beyond a reasonable doubt. Constitutional scholar Rob Natelson has documented this bias in detail. If the nonpartisan system “worked,” we wouldn’t see repeated judicial policymaking. Here’s the evidence—from Montana cases only—showing how judges have stepped into the legislature’s role.
Case After Case: Judicial Overreach in Action
1. Held v. State (2024, affirmed December 2024): Sixteen youth plaintiffs sued, claiming Montana’s environmental laws violated their constitutional right to a “clean and healthful environment” by not factoring in climate change and greenhouse gas emissions. The Montana Supreme Court agreed in a 6-1 decision, ruling that a stable climate system is part of that right and striking down limits on considering climate impacts in state environmental reviews (MEPA). The court essentially ordered the state to treat climate policy through judicial oversight rather than leaving it to lawmakers.
Critics, including dissenting Justice Rice and Republican leaders, called it straight-up legislating from the bench. Rice warned it opened the door to “ad hoc judicial natural resources management” and turned the courtroom into a “legislative policy committee.” State officials accused the court of violating separation of powers by making energy and climate policy. This wasn’t neutral judging—it was judges rewriting environmental priorities.
2. Western Native Voice v. State / Manzella v. Marbury (2024): The court struck down four 2021 Republican-backed voting laws, including stricter voter ID requirements and the elimination of same-day registration. It ruled these violated the “fundamental right to vote” under the Montana Constitution, which offers broader protections than the U.S. Constitution. Dissenting justices accused the majority of “unrestrained judicial power” and overstepping into the legislature’s authority to set election rules.
Republicans argued the laws were reasonable updates, but the court substituted its policy preferences for the elected branches. This pattern—courts micromanaging elections—shows how nonpartisan judges can block voter accountability measures without clear partisan signals for the public to respond.
3. Barrett v. State (2024): The Supreme Court upheld a lower court ruling striking down key parts of the 2021 “Save Women’s Sports Act” (HB 112), which banned transgender athletes from competing on women’s teams at public colleges and universities. The court said the law unconstitutionally infringed on the Board of Regents’ authority over higher education. (It left K-12 rules intact, but the ruling still gutted the law’s broader intent.) Governor Gianforte called it “enabling biological men to compete in women’s sports.”
Again, judges overrode the legislature’s policy choice on fairness in sports, prioritizing institutional autonomy over statewide standards set by elected officials.
4. Abortion clinic regulations (All Families Healthcare v. State, 2026): In March 2026, the court upheld a block on HB 937 and related rules, which imposed extra licensing and operational requirements on clinics performing more than five abortions per year. The 5-2 decision found the measures likely violated equal protection and privacy rights by treating abortion providers differently from other medical facilities. Dissenters and critics saw it as judicial protection of abortion access against legislative health and safety rules.
This fits a decades-long pattern where the court has expanded privacy rights (from the 1999 Armstrong decision onward) to micromanage reproductive policy, overriding legislative attempts at regulation.
5. Ballot measure strikes: A consistent conservative veto (2012–2023): Natelson’s exhaustive analysis shows the court voided nearly every conservative voter-approved or legislative referendum while upholding every liberal one. Examples include:
• Montana Immigrant Justice Alliance v. Bullock (2016): Struck down LR 121 (nearly 80% voter approval) requiring proof of citizenship for state services, claiming federal preemption—while ignoring the presumption of constitutionality and possibilities for reconciliation.
• Montana Association of Counties v. Montana (2017): Voided a victims’ rights constitutional initiative (Marsy’s Law) using a subjective “separate vote” rule invented by the court.
• Monforton v. Knudsen (2023): Killed a property tax cap initiative.
• In contrast, liberal measures like open primaries or pre-K expansion sailed through.
The pattern? The court applies stricter scrutiny to conservative reforms and more deference elsewhere, often bypassing standing, facts, or proper deference to voters and lawmakers. Natelson calls it a “partisan Democrat bench” operating like a judicial oligarchy.
Why Nonpartisan Elections Enable This—and Why CI-132 Makes It Worse
These rulings aren’t isolated. They stem from a system where judges run without party labels, campaigns focus on vague “qualifications,” and heavy outside spending (often from left-leaning groups) shapes outcomes. Voters can’t easily connect a judge’s record to politics at the ballot box. Long terms and weak accountability tools compound it. Natelson and Montana Republicans argue this isn’t impartiality—it’s unaccountable power. CI-132 doesn’t fix it; it constitutionalizes the facade, blocking reforms like party labels that would give voters the transparency they deserve in other races.
If the 90-year nonpartisan experiment truly delivered impartial courts, Montana wouldn’t have this record of judicial policymaking on climate, elections, sports, abortion, taxes, immigration, and victims’ rights. The evidence shows it doesn’t work. CI-132 isn’t protection—it’s a permanent shield for the status quo. Voters should reject it and keep the door open for real accountability.
Footnotes
1. Montana Supreme Court opinion and dissents in Held v. State (2024).
2. Natelson’s 2024 analysis for the Senate Select Committee on Judicial Oversight and Reform.
3. Reporting from Montana Free Press and state court records on voting laws, Barrett, and abortion cases.
Full sources and opinions available via Montana Courts website and Ballotpedia tracking for CI-132.
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