Amendments to the Montana Constitution

In 1889, Montana was admitted as the forty-first state. The state’s first constitution, drafted by 75 delegates gathered in Helena, remained in force until 1972. This constitution was drafted in a rush to capitalize on political conditions favorable to statehood. (The Territory of Montana had previously ratified a constitution in 1884, but the United States Congress failed to ratify the document due to political party disputes.) As a result, Montana’s first constitution borrowed heavily from the 1876 Colorado Constitution. “The 1889 Constitution was enacted more as a tool to achieve statehood than to provide a well-thought-out structure of governance for the new state.” Delegates adopted this constitution with the understanding that it could be modified or replaced by future Montanans.

This prediction came true in 1972 when, in response to calls to modernize the state’s fundamental law, elected delegates convened a new constitutional convention. A “watershed movement in [Montana]’s modern history,” the 1972 convention produced a document that expressed “new concern for preserving the environment, a renewed pride in community, and a new interested in reforming and improving society and government.” Drafted by ordinary people (legislators and other elected officials were barred from serving as delegates), the 1972 Constitution was drafted over the course of 54 days. When it was complete, Montanans ratified the new constitution by a slim margin. This constitution remains in force today and has been amended 37 times.

The current Montana Constitution may be amended by legislative referendum or citizen ballot initiative. Legislators can place a referendum on the ballot with a two-thirds vote in each house. It becomes effective if ratified by a majority of voters voting on the question at the next general election. For initiative petitions, signatures must be obtained from 10 percent of the total number of qualified voters in Montana (based on the number of votes cast in the last governor’s race), including 10 percent of the voters in each of the 40 legislative house districts. Once proposed, a majority of ‘yes’ votes on the question is needed to ratify the amendment.

The Montana Constitution also provides that a constitutional convention may be called to alter, amend, or revise the document. Proposals formulated in a constitutional convention must be submitted to the voters for ratification.

Requiring a Warrant to Access Electronic Data or Communications

The 1972 Montana Constitution included an individual right to privacy and a protection against search and seizure in absence of a warrant. In 2022, Montanans adopted a constitutional amendment to explicitly include electronic data and communications among the belongings that are protected from unreasonable search or seizure. At the time this amendment was adopted, only two other states—Michigan and Missouri—provided explicit protection from unreasonable search and seizure to electronic data and communications.

As proponents of the amendment argued, “[m]ost . . . communication and personal information now is electronic,” something that was not contemplated when the 1972 Constitution was drafted to protect a person’s papers and effects from unreasonable search and seizure. The proposed amendment faced little opposition and passed with over 80% of the vote.

Right to Harvest Wild Fish and Game

In 2004, Montana adopted an amendment stating that “[t]he opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private

rights.” In adopting this amendment, Montana became the sixth state to adopt some constitutional protection for fishing or hunting in the state.

As of 2023, 23 states have adopted constitutional amendments to protect hunting or fishing. In 2022, the Montana legislature introduced a constitutional amendment that would have strengthened the right to fish and hunt in the state and directed the state to give preference to citizen fishing, hunting, and trapping as the primary means of wild fish and game population management. The proposal, however, failed to garner the necessary two-thirds vote in both houses of the legislature and was left off the ballot.

Amending the Initiative Process

In 2002, Montana voters adopted two amendments that altered the requirements for placing an initiated ballot measure on the ballot: The first required initiated constitutional amendment petitions to gather signatures equivalent to at least 10% of qualified electors in at least half of Montana’s counties (rather than two-fifths of the state legislative house districts). The second required initiated statute petitions to gather signatures equivalent to 5% of qualified electors in at least half of Montana’s counties (instead of one-third of legislative house districts). This raised the threshold for qualifying initiative measures for the ballot. 

Proponents urged that the new requirements “bring involvement by a broader cross-section of Montanans” and that the current system was “unfair because it is possible to obtain enough signatures to put an initiative on the ballot without the proponents having to set foot in 53 of Montana’s 56 counties.” Opponents contended that the new changes were unconstitutional and “would take away entirely your right to vote on many constitutional initiatives” by “enabling a relatively small number of people in a few counties to keep a measure off the ballot.”

While the ballot question passed, opponents to the amendment were vindicated when a U.S. District Court struck down the new procedures for being a violation of the Equal Protection Clause. 

Term Limits

Montana voters ratified this amendment to implement term limits for public officers. Public officials may not seek re-election if they have held the office for eight years in any 16-year period. The official, however, could still be re-elected by a write-in vote. Proponents saw term limits as a way to prevent incumbent abuse, help the state “return to the idea of citizen lawmakers,” and encourage elected officials to “resolve problems and legislate more in the public interest.” Opponents pointed out that the limits were likely unconstitutional as applied to the state’s congressional representatives—a position that the U.S. Supreme Court would confirm three years later in U.S. Term Limits, Inc. v. Thornton, which overturned an Arkansas constitutional amendment placing term limits on U.S. Congressmembers. Nonetheless, the amendment passed and the term limits still apply to state electoral offices.

Judicial Elections and Vacancies

In Montana, the judges and justices of Montana’s district and supreme courts are selected through non-partisan elections. If there is a mid-term vacancy, the governor appoints a judge or justice to fill that vacancy for the remainder of the term.

Under the original vacancy provisions of the 1972 constitution, a judge or justice appointed to fill a vacancy did not have to stand for election, either for a new term or to be retained to serve out the remainder of their predecessor’s term, until the first general election after their appointment had been confirmed by the state senate. As this provision was drafted with the understanding that the legislature would meet annually, such a system would create minimal delays. However, following the 1974 amendment that provided for biennial legislative sessions, this system resulted in up to a three-year delay between the appointee taking office and standing for election. Additionally, the Montana Supreme Court held that should a vacancy appointee not be confirmed before the end of the office’s original term, the vacancy appointee’s tenure could extend past when their predecessor’s term would have expired.

To address these two issues, the legislature referred, and voters approved, an amendment that made two major changes: First, it prohibited vacancy appointees from serving beyond the original term of their predecessors. Second, it allowed the legislature to dictate by statute when the appointee would be required to stand for election.

Initiative and Referenda Challenges and Election Timing

In 1990, Montana voters approved an amendment aimed at preserving the will of voters as expressed through ballot measure elections. The amendment required courts to give priority to pre-election procedural and post-election electoral administration challenges to ballot measures. If a post-election challenge resulted in a ballot measure being declared invalid due to deficiencies in how the election was conducted, the ballot measure was to be automatically submitted at the next statewide election.

Proponents of the measure argued that, too often, opponents of a measure were incentivized to get a measure overturned “on a technicality,” and then, once thrown out, the measure would have to requalify for the ballot. Opponents argued that giving priority to pre-election procedural challenges could result in allowing blatantly unconstitutional measures on the ballot without remedy until after it had already passed.

Following the passage of the 1990 amendment, the “truncated timeline” applied to ballot measures challenges was itself challenged by parties who argued that the expedited proceedings constituted a due process violation. However, the Montana Supreme Court held that courts are constitutionally required to expedite the proceedings in a pre-election challenge to a ballot measure and that, short of an absolute denial of a process such as discovery, a condensed pre-trial timeline was not equivalent to a denial of due process.

Judicial Residency Requirement

In 1988, on the 99th birthday of the state, Montanans voted on seven statewide measures including one that replaced a strict constitutional residency requirement for town and city judges with a provision allowing the legislature to establish residency requirements for town and city judges. Before this amendment, town and city judges were required to live in the jurisdiction they served—in other words, each locality was required to hire its own judge to preside over the town or city court since several smaller towns could not elect to consolidate judicial services and split the salary, training, and other expenses of a judge. The legislature already established residency requirements for supreme court justices, district court judges, and justices of the peace. 

Opponents of the amendment worried that allowing the legislature to loosen residency requirements might result in judges who did “not know the problems and affairs of the municipality as well as he would if he lived in the municipality.” There were also concerns this would increase travel costs and make accessing services less convenient. For example, if a judge lived far away from the municipality they served, it might make it significantly more difficult to obtain the judge’s signature on time-sensitive orders or search warrants.

Despite these concerns, voters approved this amendment. To this day, some localities are grouped together and served by a single judge.

Deadline for Reapportionment

Montana voters approved an amendment in 1984 requiring that the Montana Districting and Apportionment Commission must complete its congressional redistricting plans within 90 days of the final census figures becoming available. The amendment also eliminated the need for legislative comment on congressional redistricting plans, though it retained the requirement for legislative comment on legislative redistricting plans. Prior to the amendment, the commission was required only to submit its plans sometime during the first regular legislative session following the commission’s appointment or finalization of the census data. Because the Montana legislature met biennially rather than annually, a schedule adopted by amendment in 1974, depending on when the census data became available, the need for legislative comment could delay redistricting by a year.

Proponents were concerned that elections for Montana’s house of representatives could be challenged because the delay would result in representatives being elected under outdated maps based on the prior census’s data. On the other hand, opponents of the amendment were concerned that the 90-day deadline limited opportunities for public and legislative review and input. However, proponents countered that redistricting of the state’s congressional districts should be comparatively simple as there were only two districts and this amendment would not affect the more complicated state legislative redistricting process.

Judicial Discipline

In 1963, the Montana Supreme Court adopted the Canons of Judicial Ethics to govern the behavior of judges and justices in the state. However, there was no independent entity with the power to investigate alleged judicial misconduct and there was “little, if any, enforcement.” The 1972 Constitutional Convention delegates attempted to remedy this problem by creating a Judicial Standards Commission to “investigate complaints” and make recommendations of discipline to the Montana Supreme Court in cases where the judge is engaged in “willful misconduct, willful and persistent failure to perform his duties, or habitual intemperance.” However, in 1982, the Montana Supreme Court determined that the commission lacked the constitutional authority to investigate, conduct adjudicatory proceedings, or recommend discipline based on alleged violations of the Canons of Judicial Ethics that fall outside the scope of “willful misconduct, willful and persistent failure to perform his duties, or habitual intemperance.”

Two years later, voters considered an amendment to allow for the discipline of judges for violating the rules of ethics adopted by the Montana Supreme Court—at the time the Canons of Judicial Ethics. Despite the Montana Supreme Court’s determination that there were rules in the Canons of Judicial Ethics that fell outside of the scope of the constitutional provision, opponents of the amendment argued that the canons were duplicative, “provid[ing] no greater cause for misconduct in office,” and meant “to serve only as a ‘proper guide and reminder for judges.’” Nonetheless, the amendment passed. 

In 2003, the Montana Supreme Court established a Commission on the Code of Judicial Conduct to consider adoption of the American Bar Association Model Code of Judicial Conduct, which was adopted in 1972 as an updated version of the Canons of Judicial Ethics. At the time, Montana was the only state in the nation that continued to operate under the Canons of Judicial Ethics. In 2008, following the completion of the commission’s work, the Montana Supreme Court adopted a version of the ABA’s model code, the Montana Code of Judicial Conduct, that replaced the Canons of Judicial Ethics. 

Veto Power

Before 1982, if the governor vetoed a bill while the legislature was out of session, the legislature was required to reconvene if it wanted to override the governor’s veto. With the passage of the 1982 amendment, it became easier for the legislature to override the governor’s veto after the end of a legislative session. While the legislature still needed a two-thirds majority to override the veto, the vote could now be conducted by mail.

Proponents of the amendment argued that the veto power had become unbalanced, favoring the governor, observing that “[m]ost significant vetoes in recent years have come after the legislature has adjourned.” Although proponents also acknowledged that this was not a deliberate attempt at evading checks and balances of the veto system—the most important bills were often passed at the end of the session and the governor did not have the opportunity to veto them until after legislative adjournment—it nonetheless made the process for legislative override more complicated, impractical, and expensive. Opponents of the amendment argued that a vote-by-mail system for overriding the governor’s veto would “eliminate full legislative deliberation and restrict public participation in the legislative process.”

Confidentiality of Judicial Standards Commission Proceedings

The Judicial Standards Commission was established by the 1972 Constitution. The commission was tasked with investigating complaints against judges or justices, after which the commission would make recommendations to the Montana Supreme Court. Upon recommendation of the commission, the Montana Supreme Court could retire, censure, suspend, or remove a judge or justice.

Under the terms of the original provision, the commission was not required to reveal any information about the complaints it received or how these complaints were handled. The commission publicized the number of complaints filed each year, but, otherwise, the commission’s proceedings, including the length of time it took for complaints to be reviewed or the final decision of each complaint, were completely confidential.

Proponents of greater transparency of commission proceedings argued that “lack of information ma[de] it impossible for the public or the Legislature to monitor the performance of the Commission and engender[ed] distrust of the judicial disciplinary process.” The proposed 1980 constitutional amendment was meant to address this issue by allowing the legislature to create exceptions to the commission’s confidentiality rules. Opponents to the amendment raised concerns that disclosure could make investigations less fair or effective and may fail to properly protect the judge, complainants, and witnesses from undue public scrutiny.

The amendment ultimately passed. Even after passage, however, the legislature refrained from requiring significant disclosure. Prior to 2023, the commission’s reports to the legislature contained limited information: the number of complaints filed in a calendar year, the number of complaints pending from the prior year, whether there were multiple complaints against the same judge, the status of all complaints filed with or pending before the commission the previous two years, and when the commission decided on a recommendation. The report did not reveal the identity of any judges who faced complaints. However, in 2023, the legislature passed a bill requiring greater transparency beginning in 2025. Reports to the legislature would henceforth require identifying the name of the judge subject to a complaint, the type of complaint, and how commission members voted, among other information.

Review of Local Government

The 1972 Constitution included a provision requiring a review of each local government every ten years, after which voters had the opportunity to vote to keep their current form of government or adopt an alternative form of government. The first review that occurred following the adoption of the 1972 Constitution resulted in 31 localities adopting new forms of government.

Despite the successes in those 31 localities, the first round of reviews also revealed the costs and burdens of the review process. “The mandatory procedures were detailed, complex and expensive,” costing nearly $1,000,000 in state and local funds. Additionally, although 31 localities adopted changes to their local governments, another 151 localities either rejected the proposed changes or did not hold an election at all. And of the 31 localities that adopted changes, some were passed by slim margins and others resulted in only very minor changes.

Making the review optional—requiring voters to affirmatively elect to begin the review process—was seen as a compromise between the intent and benefits of the original provision and the financial and logistical realities of conducting a review in every county and municipality every 10 years. Voters approved the amendment, consistent with the general trend of voters expressing wariness of changing government in favor of “making existing structures function more efficiently and effectively.”

Biennial Legislative Sessions

Just two years after Montanans adopted a new constitution, voters were already seeking to amend it. One such amendment provided for biennial, rather than annual, legislative sessions. At the time the 1972 Constitution was drafted, biennial legislative sessions were the norm. However, that soon changed, with the majority of states transitioning to annual legislative sessions in the mid-1970s. Montana made the opposite transition, going from annual sessions to biennial legislative sessions. Since then, Montana has attempted several times to further amend this provision to alter the structure of legislative sessions; however, all of these attempts have been unsuccessful. Montana is now one of only four states whose legislature meets biennially. 

Montana’s New Constitution

By the late 1960s, there was growing demand in Montana for reform of the state’s 1889 constitution. Following calls for “new governance” to “manage a growing state in a new century,” the legislature sought recommendations for how to make the constitution “workable in coming decades.” The Legislative Council recommended substantial revisions to the constitution, and, in 1970, the legislature placed a referendum on the ballot, putting to the voters the option to call a constitutional convention.

Voters approved the referendum measure, authorizing a constitutional convention and establishing a Constitutional Convention Commission to advise delegates in their work. In November 1971, voters elected 100 Montanans to serve as delegates. 

Because the state supreme court had earlier ruled that legislators could not serve as delegates, the Convention was “a true melting pot” of individuals from all walks of life, many of them ordinary citizens with no prior legislative experience. For two months the delegates worked alongside the Constitutional Convention Commission to produce a new constitution for the state. 

The 1972 Constitution differed from the 1889 Constitution in many respects. In addition to retaining amendments passed in the intervening years, the 1972 Constitution reflected the political debates of its time and the populism that led to the calling of the Convention. This is especially evident in the 1972 Constitution’s Declaration of Rights, which included rights such as the Right to Privacy; the Right of Participation, which preserves the people’s right to be involved with agency decision making; and the Right to Know, which establishes a right to access public documents. “The new Constitution barred the Legislature from working in closed sessions, centralized property tax assessment at the state level, and shifted authority for redrawing congressional and legislative districts away from the partisan Legislature to an independent redistricting commission.” The 1972 Constitution also contained a right to a clean and healthful environment, called for a free and equitable system of public education, and recognized “the distinct and unique cultural heritage of the American Indians.”

The new constitution was put to a vote on June 6, 1972, where Montanans voted narrowly in favor of adoption. Although litigation was brought challenging the ratification of the new constitution, this litigation was ultimately unsuccessful. The 1972 Constitution remains in effect today as Montana’s principal governing document. 

Allowing Additional Amendments to Appear on Ballot

Under the terms of the original 1889 Constitution, the legislature could only refer three amendments to voters in a single election year. This meant that any significant reorganization of the constitution would have to be achieved gradually in a piecemeal fashion unless voters approved a call for a constitutional convention. The legislature, wanting to reorganize the executive department, instead proposed a constitutional amendment to allow the submission of additional amendments to voters over three elections for the purpose of executive department reorganization. Although this amendment passed, it would ultimately never be used since a new constitution was adopted the same year the amended provision could first be employed.

Limiting the Number of Executive Departments

In line with the legislature’s interest in reorganizing the executive department, the legislature proposed and the voters approved an amendment to limit the number of executive and administrative agencies to 20. This amendment was passed following a “proliferation of agencies.” Although passed just two years before a new constitution was adopted, the Executive Reorganization Office recommended to the executive committee of the constitutional convention that the amended provision be included in the new constitution. At the time, the governor was still in the process of reorganizing the executive branch to reach compliance with the constitutional amendment. Although the reorganization was not expected to be complete until December 31, 1972, by January of 1972, the Executive Reorganization Office reported that the amendment was already resulting in “a more effective and responsive state government.” The delegates agreed with the Executive Reorganization Office and retained the limit in the new constitution.

Apportionment of the Legislature

In 1966, two years after the U.S. Supreme Court’s decision in Reynolds v. Sims, Montanans approved an amendment that repealed and replaced sections of the state constitution that were contrary to the requirement that legislative districts be roughly equal in population. Prior to this amendment, state senate seats were allocated by county—“whenever new counties [were] created, each . . . [county was] entitled to one senator” and “in no case [was] a senatorial district [to] consist of more than one county.” Mirroring the federal system of apportionment, this system gave less populous counties equal power in the senate as their more populous counterparts. State house seats were allocated based on a combined geographical and population basis—each county received at least one seat, with remaining seats allocated by population. This violated the one person, one vote principle the U.S. Supreme Court had just articulated in Reynolds. The 1966 amendment brought Montana’s Constitution into compliance with federal constitutional requirements.

The amendment also tied redistricting in Montana to the U.S. census. Prior to this amendment, reapportionment occurred in the middle of the decade. In fact, Montana had just completed a redistricting cycle the year before in 1965. This apportionment was completed in accordance with the Montana Constitution as it stood, resulting in districts being uneven in terms of population. These maps, and the state constitutional provisions governing the redistricting process, were held unconstitutional in federal court, with new temporary maps being implemented by the court.

Women’s Suffrage

The fight for women’s suffrage in Montana stretches over three decades and began before the state’s admission to the Union. In 1883, the first speech for women’s suffrage was given in Montana by Frances Willard. The year following, women’s suffrage is proposed at the 1884 Constitutional Convention, but the proposal was ultimately rejected. Undeterred, suffragists continued to campaign for women’s suffrage, and in 1887, the Territory of Montana extended limited voting rights to women, making women eligible to vote on school issues, for county superintendent, and issues that were submitted to a vote by taxpayers. 

Despite the advance made in 1887, delegates at the 1889 Constitutional Convention once again rejected proposals to include women’s suffrage in the state constitution. Delegates spent a full day debating the issue, with opponents arguing that including women’s suffrage in the constitution, giving the legislature the power to grant women suffrage, or putting this legislative authority to a separate vote simultaneous to the vote to ratify the constitution would endanger the state’s chances at statehood. It took another 15 years for the Montana Constitution to be amended to give women the full right to vote, five years before the ratification of the 19th Amendment. 

Adopting the Initiative & Referendum Powers

The original Montana constitution placed the entirety of the legislative power in the Legislative Assembly, reserving no powers of initiative or referenda to the people. However, in 1906, Montanans voted six to one to adopt an initiative and referendum system. This followed a broader movement, especially in the western United States, to seize power from moneyed interests. In fact, Montana’s neighbor, South Dakota, was the first state in the Union to adopt a form of direct democracy. 

The movement in Montana was further spurred on by “the Great Shutdown” of 1903, which resulted in at least 15,000 mine workers suddenly being out of work right before winter. The culmination of the conflict between Montana mining companies, the Great Shutdown involved “corporate blackmail” (p.6) and bribery of the legislature by the “Copper Kings,” a group of industrialists, seeking control of the copper mining industry, and led to the legislature unanimously approving the proposed initiative and referendum amendment after rejecting it every legislative session for the 10 years prior.

Although the state adopted the initiative and referendum in 1906, it was not until 1912 that voters first approved a ballot initiative—that year, voters approved all four of the initiative measures on the ballot. At that time, reformers were still fighting the influence of the copper industry on politics. All four 1912 ballot initiatives were aimed at removing the Amalgamated Copper Company from Montana politics; however, the company continued to dominate the legislature for years to come. At the height of the Progressive movement, use of the initiative was frequent, with 17 measures reaching the ballot between 1912 and 1928. Although the number of initiative proposals fell drastically in the subsequent four decades, there was a revival in the 1970s. Initiatives have been brought to address a wide range of issues in the state, including tax and term limits, minimum wage, campaign finance, and same-sex marriage.

The 1906 provision did not include the right to pass state constitutional amendments via initiative; instead, the original direct democracy powers were limited to statutory changes. This additional power was added in 1972 when a new constitution was adopted. The new constitution also made the initiative and referendum power applicable to local legislation. The right of recall, another direct democracy mechanism, was subsequently approved in 1976.

In 2002, voters approved two amendments making it harder to place initiatives on the ballot, but the new requirements were found to be unconstitutional.

Labor Reforms

In 1904, voters approved two constitutional amendments advancing labor reforms. One prohibited the employment of children under 16 in underground mines, and a second provided for an 8-hour workday in mills, smelters, and mines, and for government employment.

When the legislature originally passed these proposals, it provided that the official ballots used at the election should ask electors to vote for or against “the Amendment to the Constitution Relating to the Rights of Labor.” Several counties proceeded to prepare ballots combining the child labor and 8-hour workday propositions into a single question—an arrangement that would have violated constitutional mandates requiring that different amendments be presented as separate questions on the ballot. The amendments were saved from being potentially invalidated only after the attorney general secured an advanced ruling in the state’s supreme court, instructing the county clerks and recorders to separate the measures on the ballot. Both measures passed with overwhelming support. 

The 8-hour workday provision was subsequently amended in 1936 to cover all industries and occupations, except farming and stock raising.