Rob Natelson: The Montana Supreme Court Ballot Issue Jurisprudence: “Liberal, Sí — Conservative, No!”

Many Montanans have complained of the state’s supreme court’s leftward bias. But law is such a specialized area, that this bias can be hard to illustrate in ways non-lawyers can understand.

But everyone can see it in how the Montana justices handle ballot issues.

In Montana, the legislature and citizen petitioners enjoy the right to place initiatives and referenda on the ballot. Opponents also are free to challenge those measures in court.

The state supreme court has heard many ballot-issue cases. Some of the cases involve measures that are truly non-partisan, or can’t be classified as “liberal” or “conservative.” But many others do involve measures that can be classified that way.

 In my MPI study of the court issued late last year, I identified 18 cases in which the ballot measure under attack could be classified as either “conservative” (tending to reduce the power of government) or “liberal” (tending to increase the power of government). In 12 of the 18 cases, the measures challenged were “conservative.” In six, they were “liberal.”

The results, tabulated in a chart on page 18 of the study, show a dramatic difference in how the court treats conservative and liberal ballot issues.  Of the 12 conservative measures, the court upheld only two and struck down 10.  But of the six liberal measures, the court upheld every one! Since 1996, moreover, the pattern was perfect: every challenged conservative measure was struck down, every liberal measure upheld.

There were some particularly striking cases. For example, in one dispute the court voided a proposed conservative measure because it did not have legal force—it was an expression of popular opinion: what the court called a mere “resolution.” Yet in a later case, the court upheld a liberal initiative (I-166, which I discussed in an earlier post), although it, too, was a mere resolution.

Now, what made that pair of cases particularly perverse is that, under the law, they should have been decided precisely the opposite way. This is because the conservative measure was a proposed constitutional amendment, and the state constitution contains no rules against “resolutions” being part of the constitution. (In fact, resolutions or “recitals” are common in state and federal constitutions.) On the other hand, the liberal measure was a statutory initiative, and the state constitution (Article III, Section 4) specifically requires that statutory initiatives be genuine “laws” rather than mere expressions of opinion.

So the court struck down a conservative measure that was stronger on the law, and upheld a liberal measure that was weaker!

You can read the entire study here.