The planned destruction of the Montana Supreme Court
Since 2021, legislative Republicans have abolished the state's independent judicial nomination commission and have tried to gerrymander the court—now they want to make judicial elections partisan
In 2020, Montana Republicans won total control of their state government. For the first time since 2003, Republicans controlled the Governor’s office and the state legislature—and for the first time since 1923, Republicans held all state elected offices. In 2022, they padded their majorities in the state legislature, winning enough seats to hold a supermajority. In the past few years, Governor Greg Gianforte and the legislature have leaned in to a hard-right turn on social policies, targeting trans Montanans and abortion rights in particular.
But there’s one big exception to Republican dominance of state politics: the Montana Supreme Court.
The ideology of the Montana Supreme Court is hard to concisely describe—the justices are elected in nonpartisan elections, and though governors have the power to fill judicial vacancies, only three of seven justices were so appointed, with four justices elected in their own right. But some of the Court’s recent rulings have demonstrated its liberal lean. In 1999, the Court held that the state constitution included a right to abortion, and last year, it prevented several abortion restrictions from coming into effect. When the legislature abolished same-day voter registration, the ACLU brought suit, arguing that it violated the rights of indigenous Montanans to vote; a trial court enjoined the law and the Montana Supreme Court affirmed the injunction.
It’s unsurprising, then, that Montana Republicans have been fixated on attempting to remake the state Supreme Court. In 2021, shortly after they won control of state government, they passed a law that abolished the state’s independent judicial nominating process. Under the state’s 1889 Constitution, the Governor had a near-total power to fill judicial vacancies; the 1972 Constitution largely continued this power, but allowed the legislature to determine how the Governor would make appointments. Accordingly, in 1973, the legislature created the Judicial Nomination Commission, which screened judicial nominees and selected a slate of possible candidates for the Governor to choose from. Republicans tossed this process in 2021, instead allowing the Governor to fill judicial vacancies with candidates of his choice. Though the constitutionality of the law was challenged, the Montana Supreme Court overwhelmingly upheld it as permissible under the state constitution.
Separately, the legislature also proposed to convert the Court from statewide to district-based election. The legislature planned to submit this proposal to voters in 2022 for their approval or rejection. A handful of states elect their supreme courts by district, and it’s an electoral system that has been used to elect supreme courts since the nineteenth century. However, as Jed Shugerman, Miriam Seifter, and others have pointed out, the increased interest in district-based electoral systems is motivated by a desire to gerrymander state supreme courts. Indeed, Stephen Wolf mapped out the proposed districts and determined that 5 of the 7 districts would have voted for Donald Trump—which could have allowed Republicans to control the court even if their judicial candidates received fewer votes.
However, in 2022, the Montana Supreme Court struck down the proposal as unconstitutional in McDonald v. Jacobsen—the second time in ten years it had done so. It reaffirmed its decision in Reichert v. State, decided in 2012, concluding once again that the Montana Constitution required the statewide election of the Court’s members.
A recently introduced proposal from Republican State Senator Daniel Emrich has also opened the door to allowing partisan judicial elections. From 1889 until 1909, the supreme court was elected in explicitly partisan elections. But in 1909, the state legislature passed the Nonpartisan Judiciary Act, converting most judicial elections into nonpartisan affairs. Under the current system, judicial candidates run in the June primary, and the two candidates with the most votes advance to the general election, where they face off again. It’s irrelevant if there are only two candidates, or if one of the candidates wins a majority in the June primary—the primary is always held, and the general election always occurs thereafter. Though partisan organizations are involved in judicial elections, party plays no formal role in the current system.
Under Emrich’s proposed legislation, S.B. 302, judicial candidates could be listed on the ballot with a “designation of political party preference.” This “designation” would be self-drafted, and “is not evidence that the candidate has been nominated or endorsed by the political party or that the political party approves of or associates with that candidate.” In other words, judicial candidates would run in the same nonpartisan primary and general elections—just with a political party preference “in not more than three words” appearing beneath their name.
Emrich’s proposal was likely framed this way for two reasons: It’s more palatable and less controversial than suggesting a total shift to partisan elections with partisan primaries, and it’s less likely to be struck down as unconstitutional.
The Montana Supreme Court’s decisions in McDonald and Reichert were ultimately based on the Court’s conclusion that Article VII of the state constitution implicitly requires statewide elections for Supreme Court Justices. Another theme from Reichert, however, is the idea that the legislature is not empowered to statutorily alter the qualifications of the Justices. The legislative proposal at issue in Reichert “would effectively create two new qualifications for Supreme Court justice: at the time of election or appointment, the justice (a) must be registered to vote and (b) must be a resident not merely of ‘the state,’ but of a specific portion of the state” (emphasis in original). The Court explained that “when the Constitution has prescribed the qualifications required to hold a particular office, neither the Legislature nor the people have the power to supplement the constitutional pronouncement by prescribing additional qualifications.”
If Emrich had proposed to entirely shift the Court to partisan elections with partisan primaries, it’s possible that his legislation would have been vulnerable for similar reason—it clearly would’ve altered the structure of the Court by making it into a partisan body1 and it might’ve added a new, extraconstitutional qualification for Supreme Court Justices.2
But even under the language that Emrich has proposed, I think that there’s a plausible argument that it’s impermissible under the Montana Constitution.
A concern in both Reichert and McDonald is the idea that electing the Court by district “alter[s] the structure of the Supreme Court by making it into a representative body composed of members elected from districts.” In reviewing the records of the 1972 constitutional convention, the Court determined that the goal of the convention was the establishment “of the Supreme Court as an adjudicatory body of state-wide jurisdiction, not a representative body.”
Similarly, many delegates at the 1972 convention were concerned about the possibility of having partisan judicial elections. Though the Judiciary Committee’s Majority Proposal did not address the topic of partisan or nonpartisan elections, the Minority Proposal did—and would have required nonpartisan elections. During the discussion of the judiciary article, though delegates rejected a proposal to mandate nonpartisan elections, the majority of the convention’s discussion of the judiciary article concerned the idea of merit selection and how judicial vacancies would be filled—and most delegates assumed, when deciding on these provisions, that nonpartisan elections would continue for “the foreseeable future.” There’s a plausible argument to be made that Emrich’s proposal would alter the structure of the Court by converting it from a neutral adjudicatory body into a highly charged, partisan body.
In any event, it’s possible that Emrich’s proposal ends up passing, and, if challenged, that the Montana Supreme Court would uphold it. While it doesn’t obviously follow that conservatives would immediately take control of the Court—the Justices’ terms are staggered, and they may well benefit from incumbency—it would represent a clear opportunity for Republicans to take over the last remaining part of state government that they don’t control.
Armed with that majority, they could destroy the Court’s decades-long protection of individual rights and liberties, including abortion rights, and undo the Court’s recent rulings that have stymied their ability to suppress Native voters and gerrymander the Supreme Court itself.
The Montana Constitution implicitly contemplates that judicial candidates won’t run in partisan primaries, for example. Article VII, Section 8, provides that, when an incumbent Justice “files for election and there is no election contest for the office,” the election is converted into a basic retention election, with voters entitled to vote “yes” or “no.” If candidates ran in partisan elections, and write-in candidates were eligible to participate in the process, an ally of the Justice could run as a write-in candidate to close out the possibility of a retention election. Moreover, though Section 8 merely requires that judicial candidates be “elected,” there’s no reference to nomination—unlike Article IV, Section 8, which imposes term limits on executive and legislative candidates and specifically contemplates that candidates would seek a party’s “nomination” for these offices.
As is true in most states, Montana holds partisan primaries for partisan offices, and candidates are required to either file as a member of a political party or run as an independent candidate. If they file as a member of a party, they either have to submit a “declaration of nomination” (if they’re running with a major party) or a “petition for nomination” (if they’re running with a minor party). If they run as an independent, they cannot have “be[en] associated with a political party for 1 year”—which means having previously run for office as a partisan candidate or holding a public office “with a political party designation”—“prior to submission of the person’s nomination petition.”