HELENA – A district court judge indicated Wednesday that a portion of a Republican-backed ballot initiative, which many in the GOP hope will tilt Montana Supreme Court elections to their party’s favor, could be unconstitutional as alleged by critics.
The Legislature last year sent the initiative directly to this June’s primary ballot. It establishes regional districts that would each elect one justice to the state’s high court. The court’s six justices and one chief justice are currently elected in statewide elections.
Supporters argued that justices elected statewide favor Democrats and do not represent certain places, like the rural areas that generally favor Republicans.
Opponents argued Wednesday in district court in Helena that the proposal runs afoul of the Montana Constitution by adding qualification criteria for the judicial candidates. They are asking the courts to remove it from the ballot.
Judge James Reynolds made it clear that he also likely believed that the provision requiring judicial candidates to live inside the proposed regional districts is unconstitutional. Current constitutional requirements only demand state residency, as opposed to the proposed new regional residency requirement.
Past courts have disallowed the Montana Legislature from either retracting or expanding provisions of the Montana constitution.
“The residency requirement seems to me” could violate the constitution, Reynolds said.
Reynolds said he hopes to make a decision by Tuesday.
The Montana Secretary of State will soon start printing primary ballots and voter information pamphlets.
A state lawyer, arguing to keep the initiative in place as passed by the Legislature, said an appeal to the Supreme Court is likely no matter who prevails.
The judge told both sides he is evaluating whether he can strip just the requirement that candidates live inside the proposed judicial districts. That would leave intact the new districts that would each choose a justice, and another that directs justices to choose their own chief justice.
Under such a system, a judge living in Helena could run for one of the proposed new judicial districts covering eastern Montana counties. The chief justice would no longer be selected by voters.
Some Republican legislators supporting the new initiative are encouraging the judge to make such a change, ensuring that at least a portion of their ballot measure moves forward. But opponents argued the judge shouldn’t start rewriting the proposed initiative. They said the whole measure should be thrown out if a piece is found unconstitutional.
The judge said it may be more appropriate to throw the whole thing out, rather than just slice out a portion of the proposed law.
“That makes me more nervous,” Reynolds said of parsing out a portion of the initiative. “I have not found any cases where the courts have done that on a proposed ballot initiative.”