Initiative Seeks To Protect Idea of ‘Nonpartisan’ Courts

Voters have an opportunity this fall to endorse an old idea: to keep judicial elections nonpartisan as they have been for almost a hundred years.

“The public likes having nonpartisan elections and especially in the judiciary when we want sort of these neutral arbiters of justice,” said Jessi Bennion, a political scientist from Montana State University.

But the fight over Constitutional Initiative 132, a measure that would permanently and directly alter the state’s constitution and ratify nonpartisan elections within it, is part of a broader political battle in Montana.

Supporters frame this initiative as a critical firewall to protect the courts from outside political overreach. Opponents argue that party labels provide the necessary ideological transparency for voters to make an informed decision and could increase voter participation in judicial elections.

The initiative follows a series of moves by the legislature to more clearly connect judicial candidates to political parties. This last legislative cycle, for example, the legislature voted to allow political parties to make direct contributions to judicial candidates. In part, this is because Montana Republicans have repeatedly seen bills they pass struck down by the state supreme court.

The Montana GOP passed a resolution in April formally opposing the initiative, saying “[nonpartisan judicial elections] serve only to obscure politics, leaving ordinary voters in the dark under the false pretense of neutrality and nonpartisanship.”

The Republican Party has also pointed out that many of the financial supporters of the initiative are from “liberal” organizations like Forward Montana, Big Sky 55+ and the Montana Federation of Public Employees.

Other Republicans have said the courts, in particular the state supreme court, have become an activist liberal group. This July, state Rep. Kerri Seekins- Crowe, R-Billings, attacked the initiative, writing in the Billings Gazette, “The Court has long behaved as a partisan liberal actor, striking down numerous conservative laws through wildly unfounded and activist interpretations of the Montana Constitution.” Seekins-Crowe went on to argue that rather than obscuring the politics of such elections, they should be out in the open and let voters make their own decisions.

Despite these partisan rumblings, Montana State’s Bennion said the initiative looks poised to pass in part because there has not been an organized campaign against it.

Still, supporters are not taking any chances. Montanans for Nonpartisan Courts, the primary group supporting the initiative, has raised some $4.5 million to support the effort, including $1.6 million from the American Civil Liberties Union and $500,000 from the National Education Association.

Caitie Butler, the communications director and spokesperson for CI-132, said the reason for pushing a constitutional initiative is clear.

“It represents the will of the people, and should this pass and it be in the constitution, the only way for it to get overturned is by another vote of the people so that politicians in Helena couldn’t change it,” Butler said.

To overturn this initiative, it would have to be put to another statewide vote to remove it, removing lawmakers and legislators from the equation.

Supporters of CI-132 argue that the vast majority of judicial work has nothing to do with partisan politics. Out of more than 500 cases the Montana Supreme Court hears annually, only a fraction result in major policy shifts or headline-grabbing opinions, and, they argue, it is even more true for most trial courts across the state.

“Most of what a district court does is not these big hot political issues,” said Betsy Brandborg, a retired attorney and representative of Friends of the Third Branch, a group that argues for support of the judiciary. “They’re figuring out family law. They’re figuring out business issues ... spending a spectacular amount of time on criminal law.”

Advocates argue that introducing party representation on the ballot does not help inform voters. Instead, Butler argues, legal principles should dictate judicial decisions, not party platforms or support.

“There is not a Democrat or Republican way to handle those cases; there’s just the law, right? We want our judges and justices that follow the law and the Constitution,” she said.

For everyday Montanans, impartiality is the most important factor in ensuring equal representation and fair deliberation when a case is decided, Brandborg said, and that is what supporters hope CI132 will protect.

“I don’t want to know if the person who’s doing my custody battle is a Republican or a Democrat ... I want to know if they’re going to look at me and think about me fairly ...” said Brandborg.