Trego's Mountain Ear

By Amberli Emery

I want to talk about Montana’s CI-132, because my concern goes beyond whether a judge has an R or a D printed beside their name.

My concern is what happens AFTER we put this into our Constitution, when Montanans decide they want to change how judicial candidates identify themselves politically.

Before somebody arrives to explain that judges are “nonpartisan,” yes, I understand the designation. I also understand that putting on a black robe does not perform a political exorcism.

People have beliefs, loyalties, relationships, and ideological leanings. A ballot without a party label does not magically erase any of them.

The question is whether we are protecting impartial justice or giving the existing election structure constitutional protection and assuming impartiality comes with the packaging.

Those are very different promises.

CI-132 would add this sentence to Montana’s Constitution: “Judicial elections shall remain nonpartisan.” Its supporters argue that judges should be elected on their qualifications and records, and present the measure as protecting impartial courts. [1]

Qualifications and records absolutely matter. But an election designation is no substitute for examining either one.

Calling something nonpartisan does not settle whether political influence exists. Taking the label off a jar does not change what is inside. It just makes everybody else work harder to identify the contents.

Here is the part that gets my attention.

Montana already has nonpartisan judicial elections under state law. CI-132 would put that requirement into the Constitution. That means a future Legislature could not simply change the election structure through an ordinary law that conflicts with the new constitutional requirement. Removing that requirement would take another constitutional amendment approved by voters. [2][3]

That is a meaningful change in the public’s ability to pursue reform through its elected representatives.

We can preserve the way an election looks today while making it considerably harder to change tomorrow.

The word “remain” sounds comfortable. Familiar. Almost like we are voting to leave the furniture where it is.

Except we would also be bolting it to the floor.

This distinction even came up in the Montana Supreme Court’s review of the ballot language. The majority approved the wording. Chief Justice Cory Swanson and Justice Jim Rice dissented over concerns that “remain” could confuse voters about what the Constitution currently requires. Their concern about the constitutional change deserves attention, even though their position did not prevail. [2]

So when my gut says, “Wait a minute, this could make future changes harder,” there is an actual legal mechanism behind that concern.

Now, I want to be precise.

CI-132 does not expressly prohibit every future transparency requirement. It does not say voters can never learn about endorsements, financial backing, or political associations. Whether a particular law requiring candidates to disclose party affiliation would survive would depend on how it was written and how courts interpreted it. [1]

I am not going to claim the amendment says something it does not say. There is already enough creative writing in politics.

But moving toward explicitly partisan judicial elections would face a constitutional barrier. And a future requirement to declare a party could invite a legal fight over whether it conflicts with the protected nonpartisan structure.

That is a reasonable concern to raise BEFORE we approve it.

Personally, I want to know who supports a judicial candidate, what that candidate’s record shows, and how consistently they apply the law. I want to examine their reasoning, especially when the outcome benefits a political cause they appear sympathetic to.

A ruling I dislike does not, by itself, prove partisan misconduct. But neither does the word “nonpartisan” answer questions about a pattern of decisions.

And no, a Republican label would not purchase my blind loyalty either. An elephant beside a name is not a certificate of constitutional competence.

My standard is whether judges apply the law faithfully, explain their reasoning, and meet the same standard regardless of whose political interests are involved.

I understand why people want courts insulated from party machinery. I want courts insulated from political favoritism, too. I simply do not accept that protecting an election designation guarantees that result.

Before Montanans put this into our Constitution, we should understand both what it preserves and what it makes harder to change.

My concern is straightforward: we could constitutionally protect the appearance of political neutrality without doing anything to establish the actual impartiality of the people wearing the robes.

And I would like that question answered before we bolt down the furniture.

© Amberli Emery

SOURCES

[1] Montanans for Nonpartisan Courts, “Policy Language.” Complete proposed amendment and the sponsoring committee’s explanation of its position. The discussion of future disclosure requirements above is an interpretation of the text, not a court ruling on a specific future law.

[2] Montana Supreme Court, Montanans for Nonpartisan Courts v. Knudsen, 2025 MT 267, November 18, 2025. See the majority opinion, paragraphs 14–24, and the separate opinions of Chief Justice Swanson and Justice Rice, paragraphs 28–37.

[3] Montana Supreme Court, case OP 25-0699, December 2025. In discussing the related judicial-election proposal CI-131, the Court explains the distinction between the existing statutory requirement and constitutional protection that could be changed only through another voter-approved constitutional amendment.